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The treatment of “dangerousness” in Belgium: internment and placing at the government’s disposal

Philippe Mary, Dan Kaminski, Eric Maes et Françoise Vanhamme
Cet article est une traduction de :
Le traitement de la « dangerosité » en Belgique : internement et mise à la disposition du gouvernement

Résumés

Depuis 1930, la Belgique dispose de deux mécanismes permettant soit l’allongement de certaines peines, soit l’indétermination de leur durée. Il s’agit, d’une part, de l’internement des délinquants anormaux et, d’autre part, de la mise à la disposition du gouvernement des récidivistes et délinquants d’habitude. En complément des autres présentations nationales du séminaire du GERN « Longues peines et peines indéfinies. Punir la dangerosité », l’objet de cette contribution est double : présenter le cadre normatif de ces mécanismes en en soulignant les grands enjeux tels qu’ils apparurent notamment dans les débats entre juristes et médecins ; juger de l’effectivité de ces mécanismes en examinant, tant que faire se peut, l’usage qui en a été fait.

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Texte intégral

1Belgium has long been familiar with mechanisms, more or less discreet or little studied, regarding resistance to the erosion of sentences, the extension of their length, even the indeterminacy of their duration. This relates particularly to internment and placing at the government’s disposal. These were longstanding and recently reformed mechanisms, which, simply put, relied on the assessment of the dangerousness of abnormal offenders, on the one hand, and habitual offenders, on the other; that is, the two categories covered by Belgian law. The purpose of this contribution is twofold, particularly as a complement to other national presentations to the GERN seminar “Longues peines et peines indéfinies. Punir la dangerosité”: (1) to present the normative framework regarding internment and placing at the government’s disposal by highlighting key issues such as appeared in the debates between lawyers and physicians; (2) to assess the effectiveness of these mechanisms, by studying, as far as is possible, the use that was made of it. For the sake of clarity, and to account for the differences among the target groups, the distinction will be made in each case between abnormal offenders and those labelled “habitual” offenders.

1. Evolution of the legislative framework

2The anchoring of the concept of dangerousness (and the mechanisms which are based on it) within the Belgian criminal justice system owes much to the influence of Adolphe Prins and his doctrine of social defence. Indeed, this doctrine influenced several ministers and was at the origin of legislation on parole (1888), vagrants and beggars (1891), minors (1912), and, finally, on abnormal and habitual offenders (1930), these two categories of offenders being central to positivist classifications of the 19th century. With the rise of the welfare state, most of this legislation would be reformed in the sixties in order to refocus on support, help and care for these populations. Starting in the nineties, the two-fold movement for the reinforcement of legal rights and guarantees on the one hand, and for safety, even security, on the other, has had an influence on the most recent reforms. Although during this period the reference to dangerousness has experienced fluctuations, it is apparent that many problems have remained fundamentally the same throughout the century and seem far from being exhausted.

1.1. Internment of abnormal offenders

1.1.1. Origins: the Social Defence Regarding Abnormal and Habitual Offenders Act

3The social defence movement made many criticisms of the Belgian Criminal Code (“Code pénal”) of 1867, including one about the fate reserved for the offender with a mental disorder. Recognized as insane, he was acquitted and could be subject to “collocation” (forced admission into hospital; Art. 71, Code pénal); such a situation, one objected, offered few guarantees for the protection of society because, from that point, the decision for release belonged no longer to the competence of lawyers, but to the physicians who were only concerned with recovery, not with ending the state of dangerousness. And so, as Adolphe Prins emphasized in a well-known statement: “The most disadvantaged being, classically, the least guilty, social defence is all the more overlooked as the principles regarding the liability of the guilty party are more enforced/respected” (Prins, 1910, 71). Moreover, from the repression view, sentencing practices in this field were stirring up the issue. Indeed, influenced by positivist theories about the different categories of offenders, the judges viewed certain mental anomalies as mitigating circumstances, not enough to be considered as dementia, and as a result they imposed short prison sentences that were so harmful to the struggle against recidivism (Prins, 1906, 554-562).

4The Social Defence Act of April 9, 1930 was the culmination of legislative work started in the twenties (Braas 1957, Cornil 1955, Matthijs 1965). This law, dealing with abnormal and habitual offenders, was an attempt to address the above concerns by establishing a new security measure, of the same kind as those introduced by the law of 1912 relating to the protection of children. It had a dual purpose which immediately drew a dividing line between lawyers and physicians: “To provide inmates with the care required by their condition, in the interest of humanity while also ensuring that Society was protected from the morbid manifestations of the abnormal. The private as well as the general interest both come into play. But one can argue that the latter dominates the former. Consequently, some authors, especially psychiatrists, are erring in only focussing on the interests of the mentally ill persons without worrying about the requirements of social and public order. The title of the law shows the attention that was to be given, and rightly so, to society’s protection against illegal acts by abnormal people” (Braas, 1957, 121).

5The administrative procedure for “collocation” was replaced by a judicial procedure applicable not only to the mentally ill defendant (who was the object of Article 71 of the Criminal Code), but also applicable to the person thought to be “in a severe state of mental disturbance or mental retardation rendering him incapable of controlling his actions” (Art. 1), that is to say, one who, as Prins indicated with regret, had previously been subjected to only a short prison sentence. The law of 1930 thus enlarged the scope of Article 71 of the Criminal Code while also creating a new procedure and orientation for this exceptional system provided to the criminal conviction. The orientation purpose is clear: dangerousness is to be a criterion for the release of the confined person. In the line with this, the procedure that had been administrative became a legal one. Actually, a medical expertise or an observation within the psychiatric wing of a prison could be imposed by a court under the same conditions as those required for pre-trial detention. If the physician decided there was a mental illness fitting the legal definition and if guilt was established, the court could, after having ruled on the social danger presented by the defendant, order internment; otherwise, Article 71 of the Criminal Code would be applied.

6As in the case of a minor, insane (“dément”) or abnormal (“anormal”) persons have not committed a crime, but only an act qualified as a felony or misdemeanour (“crime ou délit”). The legal category of felony or misdemeanour is thus inoperative when someone who has committed an act yet so qualified by the criminal law is insane or abnormal. Insanity is the category that encompasses any mental disorder of such severity that any responsibility is excluded. The abnormality does not exclude the awareness of the criminal nature of acts, but does exclude the capacity to control these acts; this is reminiscent of the definition that Pinel gave of instinctive mania (which drives the subject irresistibly to do things that he himself disapproves of). These categories, contrary to what one might believe, are legal categories, which are not objectified nor the object of any consensus within the field of psychiatry. Border-line cases of penal rationality, in this instance insanity and abnormality, are symbolic of the fictional and strictly legal dimension of liability: a mentally ill person (insane) can claim complete responsibility and the person that we label abnormal is the archetypal figure of what was described in the 19th century as a maniac.

7To the vague contours of these two categories, we must add the invocation, imprecise at best, of gravity. The duration of the internment was limited to five, ten or fifteen years, based on the seriousness of the offence and not on the mental state of the defendant. Its execution was entrusted to an administrative, called psychiatric, board (“commission psychiatrique”), presided over by a judge, assisted by a lawyer and a physician, a prosecutor sitting as a non-voting member. It is the board that chose the institution wherein the concerned person was to be interned, according to the common legal formula, to be subjected to “scientifically organized curative treatment”; it also decided on the issue of release, whether definitive or probationary, “when the mental state of the internee has changed to the degree that he can no longer be considered a social danger” (Art. 20). This formulation indicates that it is not the individual that needs to be changed but rather his mental state and as a result, it allows for 1) the state of dangerousness to be evaluated; 2) the physician not acting as judge. The extension of the internment could be requested. Worthy of note is that the convicted person who seems abnormal after his conviction is subjected to the same regime.

  • 1  For more details on the debate and its conclusion, see Debuyst et al., 2008, 277-289.

8It is here interesting to recall the proposals of Lasègue in 1864 that made an end (provisionally, because the debate continues and is still quite contemporary) to several decades of conflict between lawyers and physicians who were giving rise to the field of psychiatry1. Lasègue indicates, to a great extent, why it is impossible to harmonize psychiatric knowledge and legal categories which seem to be based on the former, and why the debate will always be difficult and unresolved. Indeed, while the judge examines facts, the physician “will search for his information where no other person has a right to look” (Lasègue, 1864, 619) and try to answer a question that has nothing to do with the facts (the subjectivity of the patient). Lasègue argues that the psychiatrist can answer the question as to whether someone is mad, but can say nothing about his liability. It was not psychiatry but rather society (the law) which “ascribed to madness an attribute: irresponsibility” (Lasègue, 1864, 620). It seems significant to note here that this question of the legal irreducibility of categories is also dependent on penal construction: if the issue of the trial was not to punish, the question of liability would dissolve by itself.

1.1.2. Reform: the Act of 1964

  • 2  We summarize here, Mary, 1998, 209-224.

9Barely five years after the adoption of the Act2, the Minister of Justice created a commission charged with studying its reform. Composed exclusively of lawyers, for the most part counsels for the defence, it produced a report in 1939 containing a preliminary draft amending the law (Braffort, Cornil, 1940). After the war, this draft was submitted for debate, at the centre of which figured the assimilation of penal and moral responsibilities.

10While agreeing to the foundations of the 1930 Act (which organized a special regime for abnormal and mentally ill offenders in order to avoid the multiplication of short sentences or overhasty releases), the commission mainly challenged the assimilation of the mentally ill (insane) and the abnormal person: while the irresponsibility of the former was not contested by anyone, it was quite another case for the latter, whose responsibility was weakened, in fact, very much so: “Abnormal offenders are incapable of normal control of their actions, their psycho-physical state prevents them from reacting to the difficulties of life or its temptations with the lucidity or calm of the normal man, but they know perfectly well that when they commit an offence, they are doing wrong. Like a normal person, they are conscious of their responsibility” (Braffort, Cornil, 1940, 218).

11Regarding them, if a specific treatment is necessary, it must preserve the character of a sentence. However, the common regime organized by the Act of 1930 is too medical for the abnormal person and, as a result seems too repressive for the mentally ill (insane) one (Braffort, Cornil, 1940, 221). Hence the proposition of a different regime: the mentally ill individual had to be acquitted based on the provisions of the Criminal Code and, assuming he presented a danger to society, the judge could order “collocation”, understood as a “curative measure of social defence”; the abnormal offender would be sentenced to internment, that is to say placing “in an institution organized for the application of a medico-penal treatment aiming at the improvement of the psycho-physical state, moral re-education and social rehabilitation”, provided that “legally, the internment has the same characteristics as the penalties defined in the Criminal Code” (Braffort, Cornil, 1940, 268-284). With this logic, the commission proposed the provision of a minimum (at least six months) and a maximum (that of the applicable term of imprisonment according to the seriousness of the offence) period of internment. Finally, the committee emphasized that the decision should belong to the judge alone, while the psychiatrist would only inform him of the mental state of the offender.

12However, the medical world would be far from unanimous about the reform project. Etienne De Greef would become one of its principal detractors, arguing that the 1930 law was a good one, having brought together legal abstractions and biological reality and thus should not be amended (Société de médecine mentale de Belgique. Session of April 26, 1947, 745-746). And he kept on expressing his regrets that “repression seeks to dominate in cases that require treatment. It would be distressing if the Law of Social Defence, a valuable clinical tool, became solely a legal instrument” (Société de médecine mentale de Belgique. Session of November 29, 1947, 299). Many members of the Société de médicine mentale supported this view: before any amendment, the 1930 Act would have to receive the means to ensure its implementation, the judges would have to be better trained and the physicians more numerous; but, if there had to be reform, the commission charged with proposing it should also include those who apply the law, especially physicians (Société de médecine mentale de Belgique. Session of November 29, 1947, 298-299; Session of May 31, 1947, 792-794). And to criticize how much the project demolishes the principles of a social defence legislation by challenging an indeterminate sentence which is clearly the solution of the future, by restricting the powers of the social defence boards to favour those of the courts, while their knowledge of clinical realities would, to the contrary, justify an extension of their power, and by reducing the role of the physician at different stages of the procedure. To also specify that the medical criticism of confusion between the insane person (“aliéné”) and the abnormal one relates to the fact that there is only one and the same treatment provided to both categories, thereby not calling to a very clear distinction between them (impossible anyway) but rather to a regime that allows the application of a treatment suitable for each case.

13An interesting chiasmus occurs: if physicians tend to end the internment when the mental state of the patient indicates an improvement, this argues on behalf of indeterminate sentences, while lawyers, torn between the classical concept of measuring punishment and a concern for social defence, try to manage the unmanageable…

14Finally, the Minister of Justice appointed a new commission to re-examine the law and the projects for reforming it (Fettweis, 1961, 314). Two years later, after finding that the application of the law of 1930 was considerably hampered by a lack of resources, this commission recalled the quality of the law and suggested that there was no need for any major reforms. It specifically rejected the introduction of any distinction between the insane and the abnormal persons, while stressing three priorities: “the curative objective of treatments relating to social defence, the need to improve the conditions for the defence of the accused and convicted persons who are insane (“aliénés”), deficient (“débiles”) or unbalanced (“déséquilibrés”), and the desire to better ensure the protection of society against repeated criminal acts of abnormal and dangerous individuals” (Fettweis, 1961, 316). The commission produced for the Minister a draft law which went into force on July 1, 1964.

15Most of the commentators stressed the minimalist aspect of the reform, especially given the extensive debates that occurred over the last thirty years, in contrast to the absence of discussion in Parliament where the texts were approved unanimously by the members present. Consequently, they considered the new Act “as a second edition, corrected in its form, of the 1930 Act” (Matthijs, 1965, 428; van den Bossche, Fettweis, 1967, 138; Ley, 1967, 150). It is true that, steering blindly between care and protection of society, the new law will mostly be an update of the already compromise that was the law of 1930:

  • cautiously keeping the previous definition of abnormal, the law keeps on conflating the insane character with the abnormal one, which was actually criticized by lawyers, and maintains the same treatment for both categories, criticized by physicians;

  • the psychiatrist still faces the impossible question about the extent of liability, while the subject of his decision-making should really be the type of treatment that needs to be applied (Ley, 1967, 146; Matthijs, 1965, 411). The result (the paradox) is that the vaguest and most disputed categories of imputation or non-imputation are those that lead to what are potentially the longest periods of confinement;

  • the law institutionalizes indeterminate sentences and thus breaks the link between the duration of internment and the seriousness of the offence, on the grounds that “regarding sick offenders (…) the judge would neither be able to state precisely the chance for a cure, nor when it might come about” (van den Bossche, Fettweis, 1967, 139). Another reason given is the pernicious effects resulting from the limitation of internment to 5, 10 or 15 years: it could lead to the hope that internment would be a better option than an imprisonment because of its possibly reduced duration (Dierckx de Casterle, 1965, 10). Moreover, as the deletion of the internment ceiling had created a concern that the defendant would henceforth cautiously avoid being placed under observation in the hope to get instead a lighter prison sentence, this observation becomes allowed at any stage of the procedure;

  • the law introduces the possibility (however still exceptional) of an internment within a private institution when the Minister of Justice does not dispose of the therapeutic infrastructure appropriate to the case, but excludes this possibility for the case of placing under observation (van den Bossche, Fettweis, 1967, 140), especially on the grounds that “it would be difficult to accept that the time spent in such a private institution be deducted from a sentence pronounced later in the case, if the observation would give negative results” (Matthijs, 1965, 448);

  • if the law, contrary to some earlier proposals to introduce the possibility of suspension (“sursis”), retains the principle of immediate enforcement of decisions of internment, it allows the board of social defence (“commission de défense sociale”; the new label for the psychiatric board) to opt for a regime of semi-detention that creates a connection between the internment and probationary release;

  • whereas the 1930 Act made release compulsory as soon as the mental state of the internee was no longer a danger to society, the 1964 Act makes it optional and reinforces the conditions (namely that the released person no longer present a “serious social danger” and that the risk of recidivism seems very unlikely). As in the past, a request for release could be submitted every six months, by the internee or his lawyer, whose assistance is now mandatory.

16In sum, each of the involved parties was confirmed in its position, at least in the law: to the lawyer, the initial decision, allowing him to determine liability; to the physician, the treatment, with, from now on, the time to do the job properly as well as the structures to organize for this purpose; to the lawyer, again, the guarantees for a less risky release, but also for a better defence.

17If the participants in the debates came to understand, after thirty years of ink and saliva, that the law which they had criticized so much, turned out in the end to be a good law, this would be by shifting the problem in the most classic way. Since the beginning (that is, since 1930), in fact, the many conflicts between lawyers and physicians had included the one, very ideological, that saw the eventual dysfunctions as requiring legal reform (according to the lawyers) or saw them as the result of an insufficiency of means given to the implementation of a law which should not be modified so quickly (according to the physicians). Unquestionably, the means would always be missing (Alexander, 1955), Jacques Ley put it simply: “A reform is only useful if it can be applied”, and “the material means placed at its disposal [the 1930 law] are shamefully insufficient” and “only by practice will we forge tools for a useful revision of the law” (Ley, 1955, 424).

18These arguments, which can be described as sociological, are in the meantime made to serve a desire to generalize the indeterminate sentence, given the good results in the prevention of recidivism, paradoxically with the abnormal offenders who are “obviously” the most dangerous… For Jacques Ley, social defence must take precedence over the defence of (legal) principles. And because of this desire, perhaps even more fundamentally, the concern to reaffirm the neutralizing and intimidating functions of the instrument is evident. So, one emphasizes, that whatever the quality of care provided, “a significant proportion of internees belong, alas, to a category of the mentally ill, whose affliction is so severe and the social danger posed is such that their recovery and return to society would seem impossible” (Dierckx de Casterle, 1965, 9). And claims that “the curative value of the institutions of social defence also derives from the intimidation resulting from the deprivation of liberty and the re-education of internees, which unavoidably happens in an environment where they are supervised and are given the chance to work, to compare their lot with other internees or to assess the inconveniences of their lost freedom” (Dierckx de Casterle, 1965, 9). Even physicians will emphasize that “the therapeutic punishment will be that much more severe when the abnormality is more anti-social. In the end, the medical advice will no longer result in this fatal leniency, against which one had so rightly protested” (Ley, 1947, 727-728).

19The debates, and in particular those on “partial responsibility”, show to what degree liability will remain the yardstick by which the problem is measured. Here not to determine the kind of treatment to be applied, but to refuse this treatment to be only curative. Since Adolphe Prins, there is no doubt: the healing of illness, as declared by the physician, is not enough to solve the problem; therefore, on the pretext of a social danger exceeding this disease, as a priority, the imperatives of repression will have to be met by the preservation of the distressing, even intimidating nature of the measure. The inability to proceed to placing under observation in a private institution is very representative of the priorities that the law highlights: the value of an exam does not measure up to the risk, however small, that a portion of someone’s freedom could escape punishment…

20The litany of resource shortages that will continue for years will clearly show the weakness of the healing function of the measure. As the years go by, one continues to highlight the impossibility of precisely determining the severity of mental states considered by the law, or even the arbitrariness of such a statement; to denounce the difficulties faced by the experts when observing the accused, especially in psychiatric annexes in prisons, under-equipped and overcrowded; to regret the few juridical guarantees provided by the law, to the point where the rights of the defence are transformed into a rhetoric assumed with difficulty by a few court appointed lawyers; to despair of ever seeing the opening of the ‘orientation centre’ required by the law to help the social defence boards choose a facility; to rebuke the insufficiency, even the non-existence, of treatment, the regime for internees being not very different from the prison regime, mainly due to a lack of specialized personnel and appropriate facilities; to criticize the boards of social defence for their lack of competence, especially the lack of criminological and psychiatric training, the especially high average age of their members, the absence of contact between the different boards, the lack of knowledge on the internees and their evolution, the ambiguity of the role of the administration’s physician-anthropologist who also sits on the board, the absence of criteria in the decision-making, the lack of information on the effects of decisions taken, the stressful nature of the six-monthly appearance of the internee, which impedes therapeutic efforts, the stereotypical, unrealistic, inhumane etc., conditions of release (De Waele, 1983; du Jardin, 1971; Dumont, Baguette, 1977; Matthijs, 1977; Paquay, 1983; Tulkens, 1973; Vandemeulebroeke, 1986).

21The persistence of all these problems, some since the implementation of the 1930 Act, led some people, who were hardly be heard, to call for its repeal (van de Kerchove, 1987, 83-85, and the cited references). Others, who were not any less ignored, insisted that the problem had to be approached in the context of a “global social policy within the domain of mental health” (Vervaele, 1987, 154) and that the evolution of psychiatry had to be considered - which tended to “resocialize the patient “en secteur”, that is to say, in his natural environment” (Matthijs, 1977, 448), to “‘disalienate’ them and to create within the community assistance organizations and services which help to avoid or shorten hospitalization” (Vandemeulebroeke, 1986, 206). And some, though fewer and fewer, continued to criticize the oblivion into which the internees have disappeared (Meyvis, 1992, 502), abandoned without systematic treatment (Martin, Meyvis, 1991), to the point where there is talk of a “medical scandal and an ethically unacceptable situation” (Cosyns, 1992, 318).

1.1.3. New reform: the Act of April 21, 2007

22During the nineties, the sustained interest in so-called “sexual” crimes placed the question of internment back on the agenda.

23First, in 1995, an April 13 Act on the sexual abuse of minors, introduced an Article 20bis in the 1964 Act aimed at making the release of a internee who had committed acts of a sexual nature against a minor dependent on the prior advice of a service specializing in the supervision or treatment of this type of cases.

  • 3  More precisely, the case of Derochette, an internee who at the same time was probationary released (...)
  • 4  Also note that unlike the 1964 Act which, as we have seen, was preceded by important doctrinal deb (...)

24Then, in the context of the “Dutroux”3 affair, but in application of a memorandum on criminal policy released before this affair broke out, the Minister of Justice established, on September 23, 1996, a commission charged with proposing a reform of the 1964 Act (called the “Delva” commission after its chair). The history of the work of this commission, spanning more than ten years, is too long to be described here: report of the commission laid down in April 1999, draft law prepared by an expert in 2001, new Act adopted April 21, 2007, to come into force in January 2009, and ultimately postponed to 2012. However, we must note the persistence of the issues the commission struggled with: the regime for different categories of abnormal persons, the preservation of the boards of social defence, the differences between psychiatrists and lawyers on the issues of liability and dangerousness, lack of curative treatment, shortage of resources… (Commission internement, 1999, 1-2). On the other hand, the issue of the repeal of the Act obviously didn’t arise, not any more than the indeterminacy of the measure, and it was just the same in Parliament4.

  • 5  Including the provisions on the placing at the government’s disposal that now are the object of a (...)

25Renamed “Act Relating to the Internment of Persons with a Mental Disorder” - and thus breaking with the term ‘social defence’ which nevertheless remained one of its main objectives -, the law is better developed than that of 1964, comprising 157 articles instead of 415, to the point of making it somewhat tedious to present it in detail. Three terms might summarize the overall tendencies of the changes: precision, judicialization (“judiciarisation”) and limitation.

26The chief concern of the “Delva” Commission’s work was about precision, both in the terminology used and the manner in which the law would be implemented at every stage of its application, from the expertise to the final release, about which there is no need to dwell here. However, this concern is not without ambiguity. In order to account for advances in psychiatry, and thereby to break away from the problematic categories of previous legislation, the law only refers to “mental disorders” (“trouble mental”), with no reference whatsoever to any specific illness. We can thus consider that this new notion enlarges the scope of application of the law (if mental disorders include personality disorders, mood disorders and behavioural disorders…).

27However, three clarifications are added: the problem must have suppressed or severely impaired the ability for discernment or for control of actions, and this right to the moment of judgment (Art.5 and 8); the “possibility of a causal link between the mental disorder and the offence” must exist (Art.5); there must be a danger that new offences could be committed because of the mental disorder (Art. 5 and 8). This last element thus refers explicitly to the notion of dangerousness (the term itself, however, was only used in relation to final release – Art. 72). However, this reference was not included in the 1964 Act (except to justify the revocation of probationary release), in spite of the credit that in those days was given to it by the then dominant correctionalist criminology. The fact that it resurfaced nowadays, in spite of all the criticisms that could have been made during the seventies and eighties (especially Debuyst, 1977), demonstrates the strength of the representations that it promotes and the taken for granted status of the notion. This strength is also reflected in the fact that the question was dealt within just a little more than one page of the “Delva” report which, to reconcile the divergent points of view of the lawyers and psychiatrists, proposed defining dangerousness as “the risk of relapse” regarding the crime as well as into mental disorder (Commission internement, 1999, 43-44). It would still arise during debates in the Chamber of Representatives of the parliament where not one member thought about discussing the relevance of this notion; on the contrary a representative, with the Minister’s support, even assumed that it was referring to “a more precise term”, implicitly, than the term seriousness (Doc. parl., Chambre, 2006-2007, n°51-2841/4, 82-83).

28Judicialization is the second major aim of the reform. Social defence boards were replaced by sentence implementation courts (“tribunaux de l’application des peines”) (established by law in 2006). A first result was the disappearance of psychiatrists from decision-making and limiting their role to expert examination. The sentence implementation courts have competence in deciding the internee’s placement, the various modalities of execution of the internment (transfer, permission for temporary leave, prison furlough, semi-detention, electronic monitoring and probationary release) as well as final release. The law outlines the procedures and, following the regime applied to (normal) convicted offenders, introduces a system of negative selection allowing to transform the execution modalities from favours into rights. A request can only, in theory, be refused if the sentence implementation court is able to identify counter-indications. We also note that, in the wake of many other recent reforms, a position is given to the victim in many stages of the procedure; for that matter, the Act begins with the provisions that relate to victims.

29But the most interesting trend is the limitation of the possibilities for the implementation of the measure without confinement, which is reflected in the relatively large number of new provisions, such as:

  • placement under observation can only be done in a psychiatric annex (and not in a hospital environment) and, when at the end of this observation period, the defendant must return to a prison and not to a psychiatric section of a prison (Vandemeulebroeke, 2008, 317);

  • the possibility of an immediate internment (based on the prosecution’s request);

  • the execution modalities of internment can only be decided by the sentence implementation court when the internee is already placed somewhere, except for semi-detention and electronic monitoring, which can already be decided at the first hearing if there are no counter-indications. Probationary release is only possible after a placement and provided that the internee has benefitted from an execution modality (permission for temporary leave, prison furlough…) (art.25). The change is significant because, as we shall see, some social defence boards decided to grant probationary release to a non-trivial number of internees at the first appearance, before any placement.

  • the maximum period of prison furlough (“congé pénitentiaire”) is fixed at seven days per month. If this is greater than the period of prison furlough available to convicted prisoners (36 hours per month), this maximum is justified by the desire to put an end to the practices of the social defence boards that sometimes allowed furloughs of several weeks duration, which began to resemble probationary release (Vandemeulebroeke, 2008, 332);

  • in case a request for probationary release is rejected, the sentence implementation court sets the deadline for a further appearance in between six and twelve months, while under the 1964 Act, the deadline was six months;

  • probationary release is for at least two years, renewable, while under the 1964 Act, the social defence board set the period of supervision flexibly;

  • finally, as we have already mentioned, final release can only occur if the mental disorder has “improved to a point where there would be no reasonable room for concern that the internee is in a state of danger” (art.72). Therefore, this provision refers to the cases where there would be no risk of relapse, neither of an offence nor of a mental disorder, while the 1964 Act only related to the improvement of the mental state and the creation of conditions necessary for social re-integration (art.18).

30If this final trend seems interesting, it is because all these provisions will clearly lead to an increase in the number of unconditional internments and/or in their length, this latter pattern reinforcing the tendency towards longer internments that we are witnessing for the past decade. But before considering the application of internment, it remains to present this other measure introduced in 1930, the placing at the government’s disposal.

1. 2. Placing at the government’s disposal

1.2.1. Origins: Social Defence Regarding Abnormal and Habitual Offenders Act

31Another legacy of the social defence of Adolphe Prins – placing at the government’s disposal – came from the wish to create a coherent and effective system, adapted to the different categories of offenders, to hold them or treat them based on their permanent state rather than punishing them for something done in the past. Among these categories, habitual offenders would form, for Adolphe Prins (1910), the criminal class par excellence: living in poverty, vice and idleness, they are subject to a permanent tendency towards mischief and are a constant danger to society as to themselves, a danger that justifies the longest possible internment, if not an indeterminate one. The principle of security measures was thus raised, and found statutory recognition in the April 9, 1930 Act relating to abnormal and habitual offenders.

32Articles 24 and 25 of the Social Defence Act replace the old procedure of referral to special surveillance by the police, a form of supervised release provided for among the penalties listed in Article 7 of the Criminal Code of 1867 (Boucquey, Janssen, 1958, 57-58), applicable to offenders having a persistent tendency towards crime. Being added to the punishment (itself getting possibly aggravated according to the provisions of the Criminal Code relating to recidivism), placing at the government’s disposal is aimed at recidivists of felony after felony, misdemeanour after felony and felony after misdemeanour as well as the “habitual offender”, that is to say “anyone who has, in the last fifteen years, committed at least three offences, each of which led to correctional imprisonment of at least six months, qualifies as displaying a persistent tendency towards crime” (art. 25). For the first group (repeat offenders of felony after felony), placing at the government’s disposal is mandatory and the duration is 20 years; for the others, it is optional and the duration is five to ten tears, depending on the sentence handed down. These durations are maxima and the minister can, at any time, grant a release on probation.

33“The habitual offender”, comments Paul Cornil, “is defined not just by the repetition of offences, but also the tendency to re-offend. This is a concept much more criminological than penal (…). The repetition of offences is only one of the elements that justifies the security measure” (Cornil, 1958, 180). This measure is clearly presented by Attorney General Cornil, in his oration (Mercuriale) of September 15, 1930, as a “sentence of elimination” (Cornil, 1930, 1053) for offenders who pose a particular social danger. Doctor Vervaeck speaks of it as a social elimination measure aimed at die-hard criminals (Vervaeck, 1933, 232).

34According to the initiators of the law, the internment of sentenced offenders placed at the government’s disposal should not have a penitentiary nature, even though it involves the deprivation of liberty. Two regimes were established in the early days of enforcement of the law for repeat offenders actually interned (Van Helmont, 1950; 1955; 1959). One, a strict cellular confinement, was applied in two prisons intended exclusively for this type of prisoners, viewed as troublemakers exerting a bad influence on other prisoners. The other regime, applied during internment in one special section of the Merksplas facility, tried to be more flexible and was based on a progressive system which “might seem futile because it had to be applied to senior repeat offenders, jaded by long prison terms. In fact, we were under no illusions about the moral impact of this progressive regime, which would serve mainly to break the monotony of internment and encourage internees to observe the discipline of the institution, while giving them material improvements as a reward” (Cornil, 1958, 183).

35Rejected in particular by the 12th International Penal and Penitentiary Congress in 1950 (Sellin, 1951, 627), placing at the disposal of the government soon became the object of many criticisms because internees, believing themselves to be punished twice for the same offence, were not receptive to a treatment; besides, there were people who argued that such a treatment should have been applied from the beginning of the sentence (Van Helmont, 1950, 317; 1955, 466). Moreover, the distinction between “antisocial” and “asocial” recidivists, introduced by a 1951 circular on classification, entailed having two separate institutions: “one for the asocial who is subjected to a very wide regime with a minimal daily presence in the cell, the other for the anti-social where discipline, without being bothersome, is not any less strict” (Van Helmont, 1955, 467). Thus, stressed Paul Cornil, contrary to the spirit of the law which called for a regime for internees that was beneficent and caring, less severe than the one to which the other convicted prisoners were subjected, the regime of internment had actually been toughened in order to avoid incidents created by this particular population; the improved regime of ordinary prisoners which had drawn closer to that of the internees strengthened this trend (Cornil, 1958, 183-184).

36The gradual convergence of the two regimes was reinforced during the fifties by the jurisprudence of the Court of Cassation (highest court for criminal appeals) which ruled that placing at the government’s disposal constitutes a custodial sentence as it replaced special police surveillance which, in the code of 1867, was a punishment (Cornil, 1958, 186; Van Helmont, 1960, 122). This jurisprudence was criticized by some authors who argued that not only could the drafters of the code not imagine the security measures that would only arise 50 years later, but also that, aimed at protecting society from certain dangerous individuals, special police surveillance actually had all the characteristics of a security measure (Boucquey, Janssen, 1958, 900-902). Nevertheless, it seriously disturbed the well known dualism between punishments (penalties) and security measures inherited from Adolphe Prins, since placing at the government’s disposal had thus become a second sentence to serve when the first one ended.

37Moreover, through the voice of its director-general, the prison administration came to abandon the idea of a specific treatment for recidivists, arguing the heterogeneity of this category as well as the right to treatment such as defined by the United Nations Standard Minimum Rules for the Treatment of Prisoners. Indeed, the recognition of this right meant that “for recidivists as well, it must be admitted that imprisonment and other measures that effectively cut off the offender from the outside world are sufficient punishment which doesn’t need to be aggravated by the organization of the prison system itself” (Dupréel, 1968, 229). As an implicit recognition of the impossibilities of classification and treatment, notions coming from the correctionalist criminology, this declaration rings out as a prelude to the seventies, even if the “discovery” of the heterogeneity of recidivists would still be seen as the result of an “increasingly individualized treatment, based on a scientific observation of the offender and his environment”, even if this observation always leads to distinguishing between “anti-social” and “asocial”, and even if the frame of reference remains, close to 20 years later, the same as at the beginning of the fifties (Dupréel, 1968, 228-231).

1.2.2. The reforms

38The change of perspective that emerged in the sixties did not, however, lead to any reform of placing at the government’s disposal - especially during the reform of the Social Defence Act in 1964 - which remained for the few habitués who were still caught in its nets (see below) as a memory of an earlier time that has been revived only recently.

39A first reform emerged with the Act of July 17, 1990, which essentially dealt with the legal guarantees provided to an offender who was placed at the government’s disposal, but also with the possibilities for control of him: Articles 25 and 26 of the 1964 Act were amended. The new Article 25 specifies that in the case of a placing at the government’s disposal, the Minister of Justice has the choice between internment and release on probation (the former article only provided for internment “if necessary”). The decision in favour of internment must be motivated and be based on the fact that social reintegration of the offender is impossible and that, if released, the offender would constitute a social danger (Art. 25bis). Article 25ter introduces a possibility of appeal regarding the legality, and not the opportunity surrounding a decision to intern. Finally, Article 25quater and the new Article 26 respectively provide for the possibility of release after one year and the procedure to request an end to the measure.

40Another reform emerged in the wake of the “Dutroux” affair, on the occasion of the reform of parole which led to the re-naming of the 1964 Social Defence Act into the “Law of Defence against Abnormal Offenders, Habitual Offenders and Certain Sex Offenders”. To meet the then call for mandatory sentences (“peines incompressibles”), it was decided to reinforce the application of the placing at the government’s disposal with regard to offenders described as “sexual”. Article 23bis, with the following wording, was introduced into the Social Defence Act of 1964: “A person sentenced on the basis of Articles 372, 373, paragraph 2, 375, 376, 377, paragraphs 1 and 2 and also 4-6 of the Criminal Code may, by trial or appeal court judgment, be placed at the government’s disposal for a period of maximum ten years at the expiration of his sentence if this sentence has a term of more than one year [of ‘unconditional’ imprisonment]. Notwithstanding the provisions of Article 22 [mandatory placing at the government’s disposal for a term of 20 years for repeat offenders of felony after felony], the convicted person may, in case of another conviction leading to an [‘unconditional’ imprisonment] sentence of more than one year for an offence mentioned in the preceding paragraph, committed during the period specified in Article 56 of the Criminal Code [5 years since having served the sentence or prescription of the sentence], be placed at the government’s disposal for a maximum period of twenty years after the expiration of his sentence” (Art. 16 § 3 of the Conditional Release Act, March 5, 1998). Probably aware that, by referring to specific offences, this provision undermines the logic of the Social Defence Act, the Minister emphasized that its purpose resided “in the fact that the motive prompting the commission of such acts has to be linked with a ‘deviant personality structure’” (Doc. parl., Chambre, 1996-1997, 1070/1, 28). Moreover, as with internment, Article 25 of the Social Defence Act was supplemented to make the release of an offender convicted of having committed offences of a sexual nature against a minor, dependent on a preliminary advice of a service specializing in the guidance or the treatment of this type of cases.

41But it is in 2007, within the same framework as the reform of internment, that the issue experiences its most profound changes. Indeed, recidivists and habitual offenders are removed from the scope of the Social Defence Act to be subjected to another Act (April 26, 2007) establishing the placing at the disposal of the sentence implementation court. It should be noted at the outset that the Act was passed with no genuine debate in parliament and, most importantly, without any questioning of the measure despite the criticism it has been subjected to as well as its weak use (see below). Three changes have to be mentioned, given that the law will not come into force before 2012.

42Firstly, the law defines the placing at the disposal of the sentence implementation court (which the 1964 Act did not) and it confirms the case law that had affirmed his sentence nature: “[It] is an additional penalty which is or may be imposed in the cases provided by the law in order to protect society against people who commit certain serious acts that affect the integrity of persons. This additional penalty takes effect from the expiry of the term of the effective principal imprisonment or detention” (new Article 34bis of the Criminal Code).

43Secondly, the law distinguishes between the mandatory placing at the disposal and the optional one. The distinction already existed in the 1964 Act, but new offences are added and the periods reviewed. The application is mandatory in the case of recidivism of felony after felony, and for convictions of a felony for acts considered to be especially heinous, namely: a terrorist offence resulting in death; rape or an indecent assault leading to death; an act of torture leading to death; abduction of a minor leading to death. The duration of the measure is set by the judge to between 5 and 15 years (as opposed to the mandatory 20 year in the 1964 Act). The placing at the disposal is optional in case of: 1/ “convictions for offences committed by persons who, after having been sentenced to at least five years of prison for acts intentionally causing great suffering or affecting seriously the physical integrity or the physical or mental health, are again convicted for similar offences within ten years from the time the sentence has the force of res judicata” (new Article 34c of the Criminal Code); 2/ convictions for the most serious forms of violence, namely: serious violations of humanitarian law, taking of hostage, murder, inhumane treatment, human trafficking, murder to facilitate theft or extortion, intentional arson, murder to facilitate destruction or damage, indecent assault or rape which has not caused the death of the victim. The duration of the measure is set by the judge, again between 5 and 15 years (against 5 to 10 years in the 1964 Act).

44And third, the law details the procedure before the sentence implementation court. It defines the execution modalities of the placing at the disposal (deprivation of liberty, modalities concerning permission for temporary leave and prison furlough – identical to those in case of internment –, release on probation, final release).

45The first thing to note, is that – if the law continues to refer to recidivists (especially when it is felony after felony) even though this category was the least subject to the measure, even if mandatory (see below) –, the habitual offenders have now disappeared from it, even though this is the category that was most subject to the measure, even if optional in these cases (see below). An amendment was proposed to reintroduce them, on the grounds that it involved potentially dangerous people, but it was rejected: the minister claimed that “in extending the categories of offences that would be subject to the placing at the disposal, the government sought to protect society more broadly against those who threaten the integrity of other people. Since placing at the disposal constitutes a punishment after punishment, it is appropriate that it retains its exceptional nature” (Doc. parl., Chambre, 2006-2007, n° 51 -2999/003, 15).

46Hence, a second item to emphasize: the axis of the law is no longer recidivism or habitual crime as much as it is the desire to protect society from forms of violence deemed odious or very serious (even though, as discussed below, placing at the government’s disposal was mainly applied in relation to offences against property). If the logic of incapacitation remains (and with it the double punishment that contradicts the principle of non bis in idem), its justification changes and leaves the “criminological” realm of social defence in favour of a more moral one, the “contempt (...) for values essential to human life”. And such a passage then justifies the extension of the scope of the measure.

2. Effectiveness of the measures

47Since the introduction of internment and placing at the government’s disposal, statistics relating to these measures have been at least hard to find, incomplete and collected (when available) by methods so varied that their comparison is not reliable. We will, however, conduct an exercise in data collection in order to identify some major trends and especially any recent developments.

2.1. Internment

48It’s not surprising that discussions about the law and practice of social defence have, since 1930, been marked by many disputes between lawyers and physicians (the “chiasmus” already highlighted). In evaluations of the Social Defence Act in particular, views were very different. For lawyers, dysfunctions (if any), above all, required legal reform, while for psychiatrists, more resources for the implementation of the legislation were likelier to provide the solution (without legal change). One might even conclude that resources had always been in short supply. Currently, the question is whether “history repeats itself”.

49As discussed, the question of means concerning the internment of so-called “abnormal” offenders arises at two levels: the arrangements for establishments, centres or institutions for the proper treatment of internees and that of the workload of the authorities who have to make decisions about the implementation of the conditions of internment. The means for evaluating the use of internment are also limited: we will focus our attention on three issues: 1) the actual location of the internees, taking into account regional differences and release status (whether or not ‘probationary released’), 2) the psycho-diagnostic profile of the internees, and 3) developing a perspective on the demography of internment as with prison demography.

2.1.1. The actual location of internees: history and projection

50A review of the implementation of the law between 1931 and 1940 (van den Bossche, Fettweis, 1949, Spec. 234-249) showed that there was little basis to the fear expressed by some that the prisons would empty when the new regime came into force: internees represented at most between 2 and 5% of those sentenced, confinement having been “kept by the judge within the limits that had been assigned” (Cornil, 1955, 407). Figures provided by Vervaeck (1933) indicate that 590 people were interned during the first two years of implementing the law (1931 and 1932). On the contrary, some psychiatric boards had created a “suspension of internment” to the extent that a significant number of internees were released without passing through a social defence institution (“établissement de défense sociale”; hereinafter: EDS). However, the situation differed significantly from one board to another: for the first twenty years of the law’s implementation, Cornil cited release rates ranging from 7 to 39% from the first appearance (Cornil, 1955, 399; see also Leroy, 1951).

51Among the internees actually placed in an institution, although one third had not been granted ‘release on probation’ (“libération à l’essai”) because of the severity of their illness or their dangerousness, a vast majority of other internees were so released after a very brief internment. Vervaeck (1933, 256-257) mentions that 76% of the internees had been granted release on probation after a detention of less than 10 months in a social defence institution.

52Thus, as emphasized, “the Social Defence Act, which theoretically provides for internment of five, ten or fifteen years, depending on the seriousness of the offence, leads in practice to a largely undetermined duration, the actual period of confinement depending on the mental state and degree of social danger posed by the subject, as assessed by the board” (van den Bossche, Fettweis, 1949, 245).

53In just under one third of the cases, the probationary released internees ended in re-internment, half due to the commission of another offence, which led to an estimated recidivism of about 15% as against 40% among the convicted. Obtaining almost identical percentages for the board of Liege, a physician would stress that “this result was obtained with the abnormal while they are, because of their mental state, the criminals most difficult to amend, re-educate and resettle. These remarkable results show the way forward if we want to improve social defence. In Belgium, the organization of the “prison in freedom” is quite appropriate for serious recidivists (habitual offenders, etc.) who, in reality, display differing degrees of abnormality”(Leroy, 1951, 1136, stressed in the text). But, while sharing this enthusiasm, J. van den Bossche and A. Fettweis were more nuanced: “We must not forget that this particularly low rate of recidivism is a logical and necessary consequence of the interplay of the principles of the 1930 Act. Indeed, recidivism is only possible for those who have left the social defence institution, and we know that because of the severity of their mental state and the high degree of danger to society they posed, nearly one-third of those involved were not released. Those released, people in whom confidence seemed well placed, and who were submitted to prolonged surveillance, were bound to be much less prone to relapses into crime” (van den Bossche, Fettweis, 1949, 249, emphasis added, see also Stoquart, 1958).

54Recent developments show that on September 15, 2004, there were 3,306 internees, of which approximately 2,000 were released on probation (Cosyns et al., 2008, 367, see Table 1).

  • 6  The following information shows a distinction between Flemish and French speaking people (Francoph (...)

Table 1. Number of internees (prevalence on September 15, 2004)6

Table 1. Number of internees (prevalence on September 15, 2004)6

* Article 14 of the Social Defence Act: an internee may be referred, after an initial appearance before the social defence board, to an EDS, a psychiatric ward or a private residence that meets the criteria of safety and care.
** Article 18 of the Social Defence Act: For release, the mental state of the internee must be sufficiently improved and conditions for resettlement must be met. Remand to a private institution or towards outpatient care are associated with a probationary release.

Source: Cosyns et al. (2008, 367)

55Regarding the internees ‘not probationary released’, 848 were placed in prisons (psychiatric annexes or social defence institutions within prisons) or in facilities under the jurisdiction of the Department of Justice. On the French side in particular, two sites (secure psychiatric hospitals) which are the responsibility of the Walloon Region, house many internees (EDS Mons and Tournai, n = 374). Flanders has no equivalent institutions, which also explains why there are more internees in Flemish prisons (Table 2).

Table 2. Number of internees ‘not probationary released’ (prevalence on September 15, 2004)

Table 2. Number of internees ‘not probationary released’ (prevalence on September 15, 2004)

Source: Cosyns et al. (2008, 368)

56In Flanders, on the other hand, a larger number of ‘probationary released’ internees are found in regular psychiatric facilities (general psychiatric hospitals and psychiatric care facilities; Cosyns et al., 2008, 371, Table 5). This practice is quite rare on the French side. Thus, in Flanders, in 2004, there were 352 internees granted ‘release on probation’ in a general psychiatric clinic (residential), as opposed to only 7 on the French side.

57Regarding the ‘practical’ arrangements, we can see that within the context of the various reform proposals, several principles were advanced. Overall, what has been formulated is the need for a network of services, centres, institutions, residential and outpatient, open and closed, differentiated by target groups (among other criteria, the various diagnoses), by degree of security required and risk profile. In a recent paper, O. Vandemeulebroeke, General Counsel Emeritus at the Court of Appeal of Brussels, asked the following question: “Without doubt an assessment of needs and costs was made, but can the projects be finished before the end of the period provided by section 157 of the new law [the entry into force of the law]?” (Vandemeulebroeke, 2010, 362-363). We believe the answer to this question is negative. Although several initiatives have been announced and some are under development, for now, they have not all succeeded. In Flanders, for example, there remains a lack of secure psychiatric hospitals comparable to the EDS at Mons or Tournai that have the responsibility for a large proportion of Francophone internees. The construction of two comparable facilities in Flanders was announced some time ago, scheduled initially for 20107, then postponed to 2012, and now the opening of these institutions was further delayed until 20148. In this regard, according to some authors, the new legislation would primarily be a “procedural law” that offers no guarantees for an adequate implementation in practice (Goethals, Robert, 2007, 9).

58Moreover, the distribution of the interned population between the different sentence implementation courts was analyzed through a simulation study, with as date of reference April 1, 2007(Jonckheere, Maes, 2009). The total number of internees inferred from this analysis was comparable to the number of internees found in the earlier study mentioned above (Cosyns et al., 2008). The total number of internees on April 1, 2007 stood at 3,248 (Jonckheere, Maes, 2009, 4). Given that the sentence implementation courts will make many decisions relating to various modalities (permission for temporary leave, prison furlough, semi-detention, electronic monitoring, probationary release) and also probably in a repetitive way (in case of previous refusal), it is evident that the implementation of the new legislation of social defence would assume an appreciable enlargement of the staff of these courts.

2.1.2. Psycho-diagnostic profile of the internees incarcerated in prisons (FPS Justice)

59In 1933, a study carried out by Vervaeck (1933) provided the following features of the diagnosis that led to internment across the country. Note the quantitative importance of the diagnostic category for the least vague of the “unbalanced” (“déséquilibrés”) persons.

Table 3. Judicial orders for the internment of abnormal suspects, from January 1, 1931 to December 31, 1932 (Vervaeck, 1933, 236)

5 yrs (76%)

10 yrs (19%)

15 yrs (5%)

Total

M

F

M

F

M

F

M

F

Total

Retarded

(“débiles”)

128

15

32

3

3

2

163

20

183

(25%)

Unbalanced

(“déséquilibrés”

182

16

40

6

10

6

232

28

260

(44%)

Insane

(“déments”)

80

22

28

8

9

0

117

30

147

(31%)

Total

390

53

100

17

22

8

512

78

590

Accused having received a suspension of their internment

70

9

79

582

87

669

60An accounting produced by Stoquart (1958) differentiates, out of a population of 415 people detained subject to the social defence board in Brussels, the retarded persons (105), the insane (40), the unbalanced because of retardation (41) and the unbalanced ones (229). The numbers produced are no longer those of imposed internments in 1957, but relate to the existing population of internees under the Brussels board in early 1958. The largest number (the unbalanced) concerns precisely the most vaguely defined group, regarding to which there have been discussions on whether to intern rather than imprison them in normal penitentiary facilities.

61The vagueness of the categories that contain the largest number of internees derives not just from the past. The attempt to categorize based on the mental disorder (insane, unbalanced and mentally retarded) also proved unsuccessful (Cornil, 1955, 406). Even though psychiatric vocabulary has changed, the principle still remains that the modal categories are also the vaguest.

62So, a recent study referred to earlier (Cosyns et al., 2008) provides appreciable information on the backgrounds of internees and the evolution of their number over time. Since the psycho-diagnostic profiles of the internees, especially those incarcerated in the facilities of the Federal Public Service (FPS) Justice, are not being systematically recorded, we will have to rely on ad hoc research efforts.

63The main results of that research can be summarized as follows. First, only a quarter of the internees incarcerated present a single diagnosis. In most cases, it is a question of co-morbidity (the presence of multiple diagnoses). The main diagnoses most represented (for those interned with a single diagnosis or multiple diagnoses) are personality disorders (29.6%) and psychotic disorders (29.0%) (Table4). However, it should be noted that there is a significant difference between Flemish and Francophones: personality disorders are diagnosed more frequently as a principal diagnosis among the Flemish (41.7%) than among the Francophones (11.6%) where, in contrast, diagnoses of psychosis are more frequent (47.3% as against 16.9%).

Table 4. Principal diagnoses of incarcerated internees (single or combined diagnoses)*

Table 4. Principal diagnoses of incarcerated internees (single or combined diagnoses)*

* Missing data: n=8
Source: Cosyns et al. (2008, 372)

64This difference, though less pronounced, is also apparent if we take into account all diagnoses, whether primary or secondary. As shown in Table 5, almost 70% of the internees incarcerated in Flanders have personality disorders, combined or not with other diagnoses. Since this involves possible combinations, the sum of the percentages does not equal 100. On the Francophone side, 53% of the internees are affected with psychotic disorders. Also, a significant part of the internees have problems with substance use (37.0% for the whole of Belgium) and a little over a quarter of the population has a mental disability.

Table 5. Overview of diagnoses of incarcerated internees*

Table 5. Overview of diagnoses of incarcerated internees*

* Missing data: n=8

Source: Cosyns et al. (2008, 375)

65Table 6 shows with which other diagnoses the primary ones are most often combined. Personality disorders and psychotic disorders are most often combined with substance use; mental disability most often with paraphilia (sexual perversion), and paraphilia with personality disorders. Such observations are not without importance. They are particularly relevant in developing treatment programs that meet the needs of the population concerned.

66Table 6. The most frequent multiple diagnoses (two or three diagnoses) of incarcerated internees*

* Missing data: n=8
Source: Cosyns et al. (2008, 375)

67Regarding the differences between the north and the south of the country, two hypotheses can be proposed (see Cosyns et al., 377-378). First, it is possible and likely that these differences are related to a differential output, that is to say that the psychotic person in Flanders is outside of the prison environment, in the psychiatric system (due to a lack of opportunities for in-prison treatment). Let us recall that the French speaking part of the country is better equipped with treatment options, with the result that the psychotic person does not need to be on ‘probationary release’ to be treated. With respect to personality disorders, the situation is different. Regular psychiatric hospitals (in Flanders) are not seeking this type of clientele and for that reason, we find that population most often in prison. Secondly, an alternative explanation of differences would be that of a differential input, in the sense that personality disorders are more often used by psychiatrists in Flanders than on the French speaking side to justify internment: “Psychiatric experts in Flanders conclude more often than Francophone experts that the alleged offender is irresponsible for the offence committed because of the existence of a severe personality disorder” (Cosyns et al., 2008, 378). Currently, these are only hypotheses which need to be deepened within the context of future research.

2.1.3. The demography of internment

68We begin first by presenting the evolution of the Belgian prison population overall. Secondly, we will present the evolution in the number of internees over the past three decades (from 1980). This presentation will give a slightly larger perspective in which to place that development.

  • 9  Source: Federal Public Service Justice, Justice en chiffres 2010, 56. This number includes inmates (...)
  • 10  On January 1, 2010, Belgium had 10,827,000 inhabitants (Source: Eurostat).

69The evolution of the prison population in Belgium (see Figure 1) shows that in the mid-eighties, Belgium had a prison population reaching the same level as in the late sixties (an average of about 6,500 inmates on daily basis). It is mainly since the early nineties that the prison population has really exploded. With 9,811 inmates in 2006, the prison population has now solidly surpassed the 10,000 mark (n = 10,561 on March 1, 20109). These figures correspond to a prison population rate of about 100 prisoners per100,000 inhabitants10.

Figure 1: Evolution of the average daily prison population (1951-2006)

Figure 1: Evolution of the average daily prison population (1951-2006)

Source: years 1950-1991: Beyens, Snacken, Eliaerts (1993); years 1992-1999: Beyens, Tubex (2002, 142); years 2000-2006: Tubex, Strypstein (2006, 329).
Figures for 2005-2006 are not the average daily population, but the population on certain days, including March 1, 2005 and April 13, 2006.

  • 11  These early figures on the average daily population were calculated based on the following sources (...)

70Between 1980 and 2004, the average daily population increased by 63%, mainly due to the increased length of detention: during the same period, it doubled11.

Figure 2: Evolution of the average daily prison population, according to legal status (1980-2005) and the number of electronically monitored offenders (EM) on the 1st of March (1999-2008)

Figure 2: Evolution of the average daily prison population, according to legal status (1980-2005) and the number of electronically monitored offenders (EM) on the 1st of March (1999-2008)

Source: years 1980-1994: Beyens, Tubex, 2002; years 1995-2005: not officially released data, obtained from the Prison Service and processed by ourselves.
The figures published recently in annual reports of the Prison Service (DGEPI) do not include: prisoners (interned) incarcerated in EDS Mons and Tournai, juvenile offenders imprisoned in the Federal Detention Centre of Everberg, infants (incarcerated with their mother), and sentenced prisoners placed under electronic monitoring.

71Quantitatively, it is the remand and definitively convicted prisoner population that form the most important categories. These categories of prisoners have increased sharply in recent decades. The number of internees has also significantly increased. In Figure 2, the relative change in the latter category, however, is somewhat obscured because, proportionally, the internees still represent only a limited fraction of the total population (± 10%, EDS Mons and Tournai excluded).

72If we analyze now only the evolution of the population of internees (including or excluding EDS Mons and Tournai), we see very clearly that the number has increased significantly, particularly from the years 1996-1997. In Figure 3, we distinguish these two populations of internees from the year 1995 onwards: on one hand, by excluding those internees incarcerated in EDS Mons and Tournai, on the other hand, including those of EDS Mons and Tournai. In officially released statistics, it is not always easy to discern what is actually “counted” in the prison population figures. However, it is clear that the latest figures systematically exclude EDS Mons and Tournai whereas in the early eighties, they were included.

73On March 1, 2008, there were almost 1,000 internees in Belgian prisons (n = 994, excl. EDS Mons/Tournai, see Justice en chiffres 2008, p. 49), against 528 in 1990. If we also add those internees placed in the EDS of Mons and Tournai, we would get a figure of about 1,400 internees (in 2008). The number of internees in the EDS of Mons and Tournai currently ranges between 350 and 400.

Figure 3: Evolution of the average daily population of internees in prison and EDS (1980-2005) and the population of internees, excluding EDS Mons/Tournai, on the 1sr of March (1990-2008)

Figure 3: Evolution of the average daily population of internees in prison and EDS (1980-2005) and the population of internees, excluding EDS Mons/Tournai, on the 1sr of March (1990-2008)

* Population as of 1 March of the year (EDS Mons and Tournai excluded): years 1990-2008 (Justice en chiffres, 2005 and 2008)
** Average daily population (EDS Mons and Tournai included): years 1980-1994 (Beyens, Tubex, 2002); years 1995-2005 (data obtained from the Prison Service and processed in part by ourselves)

74It should be noted that the number of internees in the establishments of the Federal Public Service Justice (that is to say, excluding EDS Mons and Tournai) is increasing dramatically, and this despite some stability in the number of internments pronounced by the courts (at least between 1995 and 2004, see Figure 4). As is the case for the prison population seen as a whole, we can also estimate that the duration of detention (or more precisely the length of stay in prison under internment) has increased.

Figure 4: Evolution of the number of decision of internment and the population of internees in prison (1990-2008)

Figure 4: Evolution of the number of decision of internment and the population of internees in prison (1990-2008)

* Population as of 1 March of the year (EDS Mons and Tournai excluded): years 1990-2008 (Justice en chiffres, 2005 and 2008).
** Number of people concerned by at least one decision of internment (internment pronounced by the courts during the year): Federal Public Service Justice, Department of Criminal Policy (Service de la politique criminelle)
One internee may be concerned by more than one decision of internment in the same year.

2.2. Placing at the Government’s Disposal (PGD)

  • 12  For a discussion of the limitations of the data used below, see F. Vanhamme (2002). These figures (...)
  • 13  Statistics on court decisions are particularly incomplete for the decade 1980 (Vanneste, 1997, 110 (...)

75At the time of the implementation of the law, the Attorney General Léon Cornil predicted: “Despite everything, the punitive and infamous nature of the ‘sentence of elimination’ will be evident to everyone, (...) the judge will have qualms about applying two punishments and will prove overly cautious” (Cornil, 1930, 77-78). Has placing at the government’s disposal (PGD) followed this prediction? Prudence being required as for the completeness and reliability of statistical data over time, the answer can only expressed in terms of trends12. On average, 30 PGDs were imposed each year, a tiny proportion of annual convictions. As Table 7 shows, this figure increases considerably during two periods (1934-1939, 1951-1955). On the other hand, the late sixties show a considerable drop in the number of PGDs. The same occurs from the eighties on; the additional penalty seems13to fall into neglect until the new millennium. Since then, an increasing trend has brought the number back to the average.

Table 7. Placing at the government’s disposal (1931-2008)

  • 14  Sources: Until the year 1969: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Défense (...)
  • 15  Ibidem.
  • 16  Sources: For the years 1950-1969: Bulletin de l’administration pénitentiaire. As an indication, we (...)
  • 17  Sources: For the years 1950-1958: Cornil, 1958, 194; for the years 1960-69: Goethals, 1992, 134.
  • 18  Sources: Until the year 1991: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Défense (...)
  • 19  Sources: Until the year 1991: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Social (...)
  • 20  Sources: For the year 1970: Bulletin de l'administration pénitentiaire; for the years 1980-1984: R (...)
  • 21  Sources: For the year 2000: Direction générale de l’organisation judiciaire, Service des maisons d (...)
  • 22  Sources: For the years 1980-1984: Administration des établissements pénitentiaires, Rapports quinq (...)

Year

PGD pronounced in Court of Assizes14

PGD pronounced in Total15

PGD

Interned

on 1/116

PGD Supervised within the community

on 1/1

PGD

In progress on 1/117

1931

45

1932

71

1933

1

69

1934

132

1935

90

60

1936

86

1937

59

1938

75

1939

90

1940

51

1941

73

1942

24

1943

22

1944

24

1945

9

1946

26

1947

33

1948

19

1949

28

1950

38

1951

1

62

1952

72

1953

67

1954

73

1955

73

148

314

1956

53

1957

47

1958

28

1959

33

1960

50

1961

24

1962

20

1963

27

1964

22

1965

37

99

431

1966

13

1967

3

1968

2

1969

4

Year

PGD pronounced in Court of Assizes18

PGD pronounced in Total19

PGD Interned

on 1/120

PGD Supervised within the community

on 1/121

PGD

In progress on 1/122

1970

24

1971

31

1972

1

36

1973

27

1974

26

1975

34

37

322

1976

32

1977

39

1978

34

1979

33

1980

19

1981

14

1982

6

1983

5

1984

1

14

319

1985

0

1986

0

1987

0

1988

0

1989

0

1990

0

1991

0

1992

1

3

1993

1

1994

4

1995

3

1

1996

1

5

1997

6

1998

5

1999

6

2000

7

2001

17

2002

9

2003

24

2004

25

2005

26

14

29

2006

36

2007

22

2008

20

31

31

76These fluctuations appear to reflect certain changes in the socio-political context. Firstly, the first two movements of growth of the PGDs occurred during the years of the rise of the Hitler state in Europe and of the Korean War, that is to say, in times of major international tensions generating the fear of war on a global scale. The state of high social anxiety which is associated with these periods could be correlated with the growth of the PGDs. Then, the end of the Golden Sixties when the first clear regression of the measure is observed is the heyday of the welfare state, marked as much by economic growth as by strong social demands for equality in rights and in fact: remember, among other events, strikes, demands for the emancipation of women and African Americans, struggles and wars of liberation, as well as the movements that supported them (Pfohl, 1985, 285-288). In parallel with these egalitarian movements, the goal of rehabilitation was in the forefront of penal practices and discourses. Thus, this period is overall characterized by a social logic of solidarity and democratic inclusion, which appears to be reflected in a decline in the number of PGDs, these measures of elimination as Cornil called them.

  • 23  In June 1982, the European Court of Human Rights held that the provisions relating to the PDG were (...)

77The following fluctuations also seem to be related to the sphere of legal influence. Despite the intensification of various security discourses associated with cuts in social spending (Wacquant, 1999), Belgium has not yet been affected by these currents in the early eighties (Mary, 1998, 608-609; Nagels, 2005, 565). In this context, still marked by the social and inclusion oriented state, severe criticism of Belgium’s Social Defence Act by the European Court of Human Rights in 198223 may have prompted judges to act with extreme moderation in relation to PGDs. Finally, the change to the Social Defence Act in 1998, which henceforth includes “sex offenders” as being subject to the PGD occurred in a socio-political context of growing concern about security which, in Belgium, saw an intersection of the consequences of the Dutroux affair and the globalization of neoliberal logic (Garland, 2001). And this change, as we shall see, would effect a new upward fluctuation of the measure.

78But first, beyond its limited use, who was placed at the government’s disposal? The first five-year review of the new law revealed that persons affected by the measure were, in nine out of ten cases, habitual offenders (Goethals, 1992, 129). That is to say, those sentenced to three terms of imprisonment of at least six months within an interval of fifteen years and who showed a persistent tendency to illegal behaviour. Like an echo, one discovers in Table 7 that very few repeat felons were affected by the PGDs: between 1930 and 2002, the Assize Courts used it in only five cases, which means two per mil of the total number of PGD-measures imposed. Thus, persistent offenders who had to be ‘eliminated’ and who were the targets of the provisions of the Social Defence Act have rarely been found amongst the offenders sentenced because of felony crimes which are, as we may recall, at the summit of the legal scale of severity. And because military courts have never decided to impose the PGD, it has indeed been applied almost exclusively by the correctional courts (magistrate’s courts) (Goethals, 1992, 131; Vanhamme, 2002, 1054).

79Although we now know that the offences targeted in practice did not belong to the most serious offence categories, it is interesting to specify the types of criminal offences involved. Bekaert (1936) found that in the first five years of the law’s implementation, 80% (n = 146) of the imposed measures related to theft and other offences against property (half involving violence or rebellion); violence and lewd conduct, respectively, reached 2% (n = 4) and 2.5% (n = 5). In keeping with these observations, the author noted that the mental or physical defects of the offenders seemed less important to the imposition of a PGD than the nature of their anti-social activity (Bekaert, 1936). This primacy of offences against property is again found in 1971: among the convicts placed at the government’s disposal who were on supervised release in Brussels, 91% (n = 41) were so for acts of theft, concealment or fraud (Travezan, 1972, 23). Finally, for 1984, property offences were still over-represented and this in similar proportions because eight out of ten measures were imposed following convictions for theft (38% PGD), aggravated robbery (25%), forgery and uttering forged documents (19%). As for sex offences or violence, they continued to be under-represented: 8% and 2% respectively (Goethals, 1992, 130).

  • 24  A decision regarding a minor is included in this number.
  • 25  The report doesn’t mention the distribution across these various types.

80But in 2003, the pattern shifts markedly from these trends that have prevailed during the 20th century. Out of 24 PGDs24, 9 are a result of convictions for sexual offences (indecent assault, rape) including 6 without legal recidivism. The other 15 are for property offences, assault and battery and carrying a weapon25; 11 of these concern cases of recidivism (Falzone, Rutten, 2008, 157-158). At least one PGD was ordered by a Court of Assizes, as these researchers spot one measure with a period of 20 years, equivalent to the mandatory length required in case of recidivism for felony crimes. Out of the total of PGDs for that year, the number of repeat offenders is still significant: more than half. However, it should be noted that 6 PGDs were ordered for a first offence of a sexual nature. So, the reform of the provision by the Act of March 5, 1998 shows a correlation with a tangible variation in the use of the measure, as much for the type of offenders concerned as for the criminal offences at cause.

  • 26  This number excludes 3 PGDs imposed on minors. The total of PGDs for this period is therefore 81, (...)

81In the imposition of the measure at the judicial stage, it is interesting, ultimately, to note the lack of variation in the duration of the measure. Between 1995 and 2003, regarding the 78 PGDs imposed on adults26, two thirds (n = 52) were for a period of ten years and one quarter (n = 20) of five years (one was a period of three years and three of unknown duration) (Falzone, Rutten, 2008, 157).

  • 27  The term is that which is used to describe the implementation of the PGDs by imprisonment and shou (...)

82Because of a time lag, the internments27 have followed the global trends governing the judicial pronouncement of PGDs. First, the trend towards a decrease. According to the prison administration, since 1970, preference was given to a supervised release rather than to an internment. The reason given is that these prisoners received no parole for the already lengthy main penalty (aggravated by the fact of recidivism) and that, therefore, any extension of their detention became particularly difficult to accept, especially since the date of their release remained unpredictable. Therefore, the internments rarely exceeded six months (Administration des établissements pénitentiaires, 1985, 57-59). Thus, in early 2000, only one person was detained because of a PGD while 14 were supervised by the Houses of Justice (Probation Service) (Direction générale de l’ordre judiciaire, 2000).

  • 28  This figure refers to January 1st.

83Then, the upward trend of recent years. It is accompanied by a steady increase in internment: from 14 in 200528, to 31 in 2008. This trend is confirmed because on January 1, 2010, the number of internees reached 44. With respect to the supervisions by the Probation Service, they totalled 29 in 2005, amounted to 31 in 2008 and reached 48 in 2010. These data reflect the increase of PGDs imposed by the courts. They also show that the rate of internments has grown markedly, reversing the approach of the prison administration that had prevailed since the seventies. In short, if an increasing number of PGDs is imposed today, the offenders placed at the government’s disposal also seem to remain more frequently, and/or longer in custody.

  • 29  Last year of available statistics from the Department of Criminal Policy on the number of convicti (...)
  • 30  In the statistics of the Department of Criminal Policy, the item “Court of Appeal” does not distin (...)

84This growth should not overshadow the very small number of PGD-measures imposed. In 200429, 25 measures were pronounced, while 30,365 sentences were handed down by the correctional courts and the Assize Courts (except the Courts of Appeal30). As predicted by the Attorney General Cornil in 1930, an overall cautiousness regarding the measure can be observed over the course of time. In this regard, J. Pratt assumes that such security measures have never been considered as meaningful sentencing options, since the possibility of imposing long prison sentences was already provided for by the Criminal Code and that any over use of the law was likely to arouse the fear of totalitarianism (Pratt, 2001, 107).

85However, the use of the measure has fluctuated. For Ch. Vanneste, the ‘penality’ (“pénalité”) is a social product that is not directly linked to criminality: the extension of the first does not linearly depend on that of the second. It is the feeling of insecurity among the population, more pronounced during periods of economic insecurity, which would be at the roots of the cyclic extension of the “pénalité” (Vanneste, 2001). According to the present observations, the conclusion of the author might be made more complex, since the socio-political context seems to be a interesting variable within this subject that is worthy of exploration: logics of inclusion within the context of the welfare state, logics of exclusion in the context of insecurity, related to international, social and political tensions. In other words, between 1930 and 2010, the concept of dangerousness, as well as the use of the PGDs have been fueled by social fears that tend to focus upon certain behaviors. Throughout the 20thcentury, it was the repetitive assaults on property that channelled these obsessions; nowadays it is more the offences against persons; for that matter, habitual offenders have also been removed from the scope of the new law. In any event, given the marginal use of the measure, it would largely amount to a symbolic measure, except of course for the convicted person placed at the government’s disposal.

Conclusions

86The issue of long sentences has become noticeable in the last thirty years through their increasing length as pronounced at the sentencing stage, but almost ancient arrangements are dedicated to the institutionalized lengthening of the pronounced sentence (the PGDs) or to the indeterminate duration of a measure considered non-punitive (internment). These mechanisms of “retention” have existed in Belgium since 1930. The notion of risk was, at that time, inserted into the criminal law: the offender himself is the bearer of it; it is his dangerousness, declares Prins in his doctrine of social defence. The notion of risk became thus able to be inserted into the logic of a criminal court, and from that point the court accepted the invasion of the psychiatric expertise. Foucault (1981) concludes his analysis on the matter by questioning this new approach in which the offender now tends to be punished for who he is, rather even more than for what he did.

87The Belgian Social Defence Act illustrates this logic in its two aspects: on the one hand, the so-called “crazies” will be handed over to the psychiatrists, but still with a judicial review; and, on the other hand, the “dangerous”, who are submitted to the judiciary, with a governmental control. Although internment causes regular debates about its legitimacy, its indeterminacy, the care provided therein, the placing at the government’s disposal is at least discreet, both in its use and in the public and scientific arena. Recent reforms of these two instruments combine an objective of strengthening legal rights (the requirement of motivated decisions, jurisdictionalization of control) with a political issue unquestionably about security both in extending the range of eligible offences and in the explicit targeting of the contemporary figures of dangerousness (sex offenders). The reform of the PGD also manifests a shift from the legal and criminological status of recidivism and habitual illegal behaviour towards the moral status of criminality, by implication, abhorrent; henceforth, the risk can, in some cases, be evaluated from the first offence onwards.

88As for internment, consistently for 80 years, with no deference to the energy of the reforms, it stumbled repeatedly on the issue of care, which was not organized, or existed outside of the prison administration, in psychiatric facilities (secure or not). In this regard, it is instructive to compare the plight of the interned Francophones and Flemish as outlined in this paper. As a result, fundamentally, the political relevance of the legal instrument is weakened, the more since the lengthening of the duration of the internments increases the population, accentuates the problems of care and therefore decreases the objective possibilities for release... One can also be concerned about the effects produced upon this vicious circle by the future taking-over of this kind of affairs by the sentence implementation courts (in which there are no sitting psychiatrists).

89If, up to now, internment involved 10 to 15% of the prison population, an exceptional measure such as the PGD has obviously been successful neither in assizes nor in correctional courts (magistrate’s courts): its use has become exceptional. The change of logic induced by the legal reform of 2007, might, however, alter things, judging by the number of countries that have adopted such a measure, thus making Belgium and Germany less unusual regarding this issue. The criminal courts are increasingly equipped with risk assessment prerogatives that see the offenders “for who they are” (and potentially will be), helped in this by the gaps in the allocation of resources to treat them. While judges are not very confident about the efficiency of sentences and tend to ascribe responsibility for the sentence to the defendant as a way of denying their own responsibility (Tombs, Jagger, 2006; Vanhamme, 2009, 295-311), the current use of internment and PGD seems to mean that this ascription of responsibility is excluded or “a lost cause” for certain offenders or for certain offences. Indeed, the two measures offer the same “advantage”: the judge is ultimately not responsible for the concrete carrying out nor for the outcome of the measure. Their use would thus constitute an additional form of the denial outlined above.

90But the actual imposition of the PGD suggests something else. During the 20th century, it has been overwhelmingly those convicted of property crimes that have been affected by a PGD, so that the nature of the offence committed seems to dominate the decision to impose the measure much more than the psychic or moral disposition of the offender (Bekaert, 1936). But it should not be forgotten that a judge generally considers himself to be a defender of the social order (Robert et al., 1975, 122-123 and 151; Vanhamme, 2009, 327), that he sees himself first as a sentencing judge (Robert et al., 1975, 119-121) and that he assesses the facts and their seriousness in relation to the person (Vanhamme, 2009, 319). In addition, the “clients of the criminal justice system” are generally thought by judges to come from a different social world, one marginal to their own, one not quite normal (Robert et al., 1975, 132 and 138; Vanhamme, 2009, 240 and 297). In other words, the nature of the offences which leads to the placing at the government’s disposal, cannot be dissociated from the disposition of the offender, and these people are precisely those who make up the most obvious criminal customer, coming from the so-called “working”-class, whose illegalisms of property are the “traditional” target of the criminal justice system (Foucault, 1975, 89-90). The 2007 reform, in trying to avoid the confusion between repeat offenders and the mentally ill, actually brought the offenders likely to be subjected to a PGD-measure closer to the perpetrators of particularly heinous offences (van de Kerchove, 2011). The explicit emergence of sexual offences in the legislation is an obvious symptom of it. Will neutralization mechanisms (which are also more subjected to judicial control) become more moralistic and sensitive to public opinion rather than socially-oriented? With respect to Germany, Dessecker (2009, para. 39) confirms the relevance of this question.

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Notes

1  For more details on the debate and its conclusion, see Debuyst et al., 2008, 277-289.

2  We summarize here, Mary, 1998, 209-224.

3  More precisely, the case of Derochette, an internee who at the same time was probationary released and raped and murdered a little girl.

4  Also note that unlike the 1964 Act which, as we have seen, was preceded by important doctrinal debates in developed societies and scientific journals, the new law was exclusively the result of the work of the commission established in 1996 and the journals only commented on it after its adoption.

5  Including the provisions on the placing at the government’s disposal that now are the object of a specific law (see below).

6  The following information shows a distinction between Flemish and French speaking people (Francophones) which needs to be understood. By French, we mean all the internees imprisoned in a facility located in Wallonia as well as those who belong to the French language sector in the psychiatric annex of Forest Prison (Brussels). By Flemish we mean similarly identified internees imprisoned in a facility (FPS Justice) on Flemish territory, to which are added Flemish internees from the psychiatric wing of Forest Prison.

7 Press release Council of Ministers on 6 February 2006 – Internees in Flanders: creation of two health centres of forensic psychiatry.

8  Communication to the media of the Minister of Justice Stefaan De Clerck (S. Somers, “Minister wil plaatstekort geïnterneerden wegwerken tegen 2014. De Clerck belooft mirakel”, De Morgen, September 6, 2010, 2).

9  Source: Federal Public Service Justice, Justice en chiffres 2010, 56. This number includes inmates in Belgian prisons, with the exception of the internees incarcerated in EDS Mons and Tournai. Sentenced offenders under electronic monitoring are also excluded.

10  On January 1, 2010, Belgium had 10,827,000 inhabitants (Source: Eurostat).

11  These early figures on the average daily population were calculated based on the following sources: years 1980-1991: Beyens, Snacken, Eliaerts, 1993, 8; years 1992-1999: Beyens, Tubex, 2002, 142; years 2000-2004: Tubex, Strypstein, 2006, 329.

12  For a discussion of the limitations of the data used below, see F. Vanhamme (2002). These figures would also include the PGD applied to minors, apparently exceptional (see Falzone, Rutten, 2008, 157).

13  Statistics on court decisions are particularly incomplete for the decade 1980 (Vanneste, 1997, 110).

14  Sources: Until the year 1969: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Défense sociale’.

15  Ibidem.

16  Sources: For the years 1950-1969: Bulletin de l’administration pénitentiaire. As an indication, we report one figure by decade for which data are available.

17  Sources: For the years 1950-1958: Cornil, 1958, 194; for the years 1960-69: Goethals, 1992, 134.

18  Sources: Until the year 1991: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Défense sociale’; for the years 1992-2001: Casier judiciaire central; from the year 2002: non communicated.

19  Sources: Until the year 1991: Activité des cours et tribunaux. Statistiques diverses, Ch. ‘Social Defence’; for the years 1992-2002: Casier judiciaire central; for the year 2003: Falzone, Rutten, 2008, 157-158 (nb = 21 according to the following source); for the years 2003-2008: Questions et réponses écrites, 13-04-2010, Response to Question n° 182 of Deputy Bert Schoofs on Dec. 16, 2009 to the Minister of Justice, Chambre des représentants, 4th session of the 52nd legislature, 141.

20  Sources: For the year 1970: Bulletin de l'administration pénitentiaire; for the years 1980-1984: Rapport quinquennal 1980-1985; for the years 1990-1999: Rapport d’activité annuel de la Direction générale des établissements pénitentiaires; for the years 2005-2010: FPS Justice, Direction générale EPI Etablissements pénitentiaires. As an indication, we report one figure by decade for which data are available.

21  Sources: For the year 2000: Direction générale de l’organisation judiciaire, Service des maisons de Justice, Rapport d’activité, 2000; for the years 2001-2009: Maisons de justice: Mandats en cours au 31 décembre de l’année précédente. As an indication, we report one figure by decade for which data are available.

22  Sources: For the years 1980-1984: Administration des établissements pénitentiaires, Rapports quinquennaux 1975-1980 and 1980-1985; from the year 1990: non communicated. As an indication, we report one figure by decade for which data are available.

23  In June 1982, the European Court of Human Rights held that the provisions relating to the PDG were found in violation of Article 5 par. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These latters provided “the Minister of Justice with initial authority for detention for a period (…) whose actual duration (…) is striking for its relatively indeterminate character and will vary, in principle, according to the treatment required by the offender and the demands of the protection of society”. As “‘persistent tendency to crime’ and ‘danger to society’ are essentially relative concepts”, “if one were to consider such justification to have been established once and for all at the moment of conviction, this would amount, in a way, to a presumption that the detention would produce no useful result” (E.C.H.R., Case Van Droogenbroeck v. Belgium, Judgement of June 24th, 1982). This decision was at the origin of the Act of July 17, 1990 that places new statutory safeguards on judicial decisions (art. 24) and on the carrying out of a PGD (supra).

24  A decision regarding a minor is included in this number.

25  The report doesn’t mention the distribution across these various types.

26  This number excludes 3 PGDs imposed on minors. The total of PGDs for this period is therefore 81, or one less unit compared to our own sources. This data were obtained by the authors from the Department of Criminal Policy (Service de la politique criminelle) in 2005 (Falzone, Rutten, 2008, 157).

27  The term is that which is used to describe the implementation of the PGDs by imprisonment and should not be confused with the internment of abnormal offenders.

28  This figure refers to January 1st.

29  Last year of available statistics from the Department of Criminal Policy on the number of convictions.

30  In the statistics of the Department of Criminal Policy, the item “Court of Appeal” does not distinguish among police and correctional appeals.

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Table des illustrations

Titre Table 1. Number of internees (prevalence on September 15, 2004)6
Légende * Article 14 of the Social Defence Act: an internee may be referred, after an initial appearance before the social defence board, to an EDS, a psychiatric ward or a private residence that meets the criteria of safety and care.** Article 18 of the Social Defence Act: For release, the mental state of the internee must be sufficiently improved and conditions for resettlement must be met. Remand to a private institution or towards outpatient care are associated with a probationary release.
URL http://champpenal.revues.org/docannexe/image/8359/img-1.png
Fichier image/png, 10k
Titre Table 2. Number of internees ‘not probationary released’ (prevalence on September 15, 2004)
Légende Source: Cosyns et al. (2008, 368)
URL http://champpenal.revues.org/docannexe/image/8359/img-2.png
Fichier image/png, 19k
Titre Table 4. Principal diagnoses of incarcerated internees (single or combined diagnoses)*
Légende * Missing data: n=8Source: Cosyns et al. (2008, 372)
URL http://champpenal.revues.org/docannexe/image/8359/img-3.png
Fichier image/png, 12k
Titre Table 5. Overview of diagnoses of incarcerated internees*
Légende * Missing data: n=8
URL http://champpenal.revues.org/docannexe/image/8359/img-4.png
Fichier image/png, 11k
Légende * Missing data: n=8Source: Cosyns et al. (2008, 375)
URL http://champpenal.revues.org/docannexe/image/8359/img-5.png
Fichier image/png, 16k
Titre Figure 1: Evolution of the average daily prison population (1951-2006)
Légende Source: years 1950-1991: Beyens, Snacken, Eliaerts (1993); years 1992-1999: Beyens, Tubex (2002, 142); years 2000-2006: Tubex, Strypstein (2006, 329).Figures for 2005-2006 are not the average daily population, but the population on certain days, including March 1, 2005 and April 13, 2006.
URL http://champpenal.revues.org/docannexe/image/8359/img-6.png
Fichier image/png, 14k
Titre Figure 2: Evolution of the average daily prison population, according to legal status (1980-2005) and the number of electronically monitored offenders (EM) on the 1st of March (1999-2008)
Légende Source: years 1980-1994: Beyens, Tubex, 2002; years 1995-2005: not officially released data, obtained from the Prison Service and processed by ourselves.The figures published recently in annual reports of the Prison Service (DGEPI) do not include: prisoners (interned) incarcerated in EDS Mons and Tournai, juvenile offenders imprisoned in the Federal Detention Centre of Everberg, infants (incarcerated with their mother), and sentenced prisoners placed under electronic monitoring.
URL http://champpenal.revues.org/docannexe/image/8359/img-7.png
Fichier image/png, 20k
Titre Figure 3: Evolution of the average daily population of internees in prison and EDS (1980-2005) and the population of internees, excluding EDS Mons/Tournai, on the 1sr of March (1990-2008)
Légende * Population as of 1 March of the year (EDS Mons and Tournai excluded): years 1990-2008 (Justice en chiffres, 2005 and 2008)** Average daily population (EDS Mons and Tournai included): years 1980-1994 (Beyens, Tubex, 2002); years 1995-2005 (data obtained from the Prison Service and processed in part by ourselves)
URL http://champpenal.revues.org/docannexe/image/8359/img-8.png
Fichier image/png, 23k
Titre Figure 4: Evolution of the number of decision of internment and the population of internees in prison (1990-2008)
Légende * Population as of 1 March of the year (EDS Mons and Tournai excluded): years 1990-2008 (Justice en chiffres, 2005 and 2008).** Number of people concerned by at least one decision of internment (internment pronounced by the courts during the year): Federal Public Service Justice, Department of Criminal Policy (Service de la politique criminelle)One internee may be concerned by more than one decision of internment in the same year.
URL http://champpenal.revues.org/docannexe/image/8359/img-9.png
Fichier image/png, 18k
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Pour citer cet article

Référence électronique

Philippe Mary, Dan Kaminski, Eric Maes et Françoise Vanhamme, « The treatment of “dangerousness” in Belgium: internment and placing at the government’s disposal », Champ pénal/Penal field [En ligne], Séminaire du GERN "Longues peines et peines indéfinies. Punir la dangerosité" (2008-2009), mis en ligne le 16 juillet 2012, consulté le 28 juillet 2014. URL : http://champpenal.revues.org/8359 ; DOI : 10.4000/champpenal.8359

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Auteurs

Philippe Mary

Professor at the School of Criminology Leon Cornil of the ULB.

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Dan Kaminski

Professor at the School of Criminology at UCL and Director of CSIR&P (Centre for Interdisciplinary Research on deviance and penalty).

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Eric Maes

Researcher at the Department of Criminology of the National Institute of Criminalistics and Criminology (NICC, Federal Public Service Justice, Belgium).

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Françoise Vanhamme

Associate Professor, Department of Criminology at the University of Ottawa.

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