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Report | Doc. 13868 Part 3 | 14 September 2015
The progress of the Assembly’s monitoring procedure (October 2014-August 2015)
Periodic review report of countries not under the monitoring procedure sensu stricto or engaged in a post-monitoring dialogue:
Belgium
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
A. Explanatory memorandum by Mr Schennach, rapporteur
(open)1. Introduction
1. The Kingdom of Belgium (hereafter
Belgium) joined the Council of Europe on 5 May 1949. It is a founder member
of the Organisation. Upon accession, it committed itself to respecting
the obligations incumbent upon every member State under Article
3 of the Statute with regard to pluralist democracy, the rule of
law and human rights.
2. Belgium is a parliamentary democracy with a limited constitutional
monarchy. Situated in western Europe, Belgium covers an area of
30 528 square kilometres and has a population of 10 449 361. 
3. According to its Constitution, “Belgium is a federal State
made up of three communities, three regions, and four linguistic
regions (three monolingual, one bilingual)”. The country has complex
institutions and is divided into three regional government areas.
Decision-making powers are divided between the federal State, three
communities and three regions. Belgium’s regions and communities
are invested with legislative power. For years, the federal system
has been challenged by centrifugal forces, pushing for more autonomy
at the community and region levels and less centralisation, and
questioning the national identity. With the successive State Reforms,
and notably with the Sixth State Reform, Belgium has moved towards
a less centralised State: the three communities (Flemish, French
and German-speaking) and the three regions (the Flemish, Walloon and
Brussels-Capital regions) have been assigned increasingly important
governmental powers.
4. At the federal level, the executive branch is in the hands
of the federal government. The Council of Ministers is composed
of no more than 15 members. The federal parliament is composed of
a Senate and a Chamber of Representatives. The Chamber’s 150 representatives
are elected under a proportional voting system from 11 electoral
districts. Since the Sixth State Reform (see below), the Belgian
Senate has fewer members (reduced from 71 to 60 members) who are
no longer directly elected: 50 are elected by the community and
regional parliaments and 10 are co-opted members. The co-opted members
are elected by their peers: six by the Dutch linguistic group and
four by the French linguistic group. The King is the Head of State but
has limited prerogatives. He appoints the Prime Minister and the
ministers that have the confidence of the Chamber of Representatives
to form the federal government.
The King is the Head of State but
has limited prerogatives. He appoints the Prime Minister and the
ministers that have the confidence of the Chamber of Representatives
to form the federal government.5. The communities are political entities which are based on
language. It has three official languages and thus three communities.
Belgium is divided into three regions that are territorial entities.
Its two largest regions are the Dutch-speaking region of Flanders
in the north and the French-speaking southern region of Wallonia. A
German-speaking community exists in eastern Wallonia. The Brussels-Capital
Region has bilingual status. Language is the fundamental issue at
the core of Belgium’s deep divisions. Over the decades, the politicians have
contrived to create a system where there is no unifying institution.
The country operates on the basis of linguistic divisions, which
exist in all spheres of society. In Brussels, and in particular
in its outlying districts, where the two cultures exist, the coexistence
is a fiction, with a clear separation between the French-speaking and
Dutch-speaking societies. As the same time, as the main seat of
the European Union institutions and the main location of the European
Union-wide civil society, Brussels has grown into a crossroads of
diverse languages and cultures.
6. In its Resolution
1301 (2002) on protection of minorities in Belgium, the Parliamentary Assembly noted that
because of the transfer of power from the federal centre to the
Belgian federal entities, the Framework Convention for the Protection
of National Minorities would have to be ratified by the seven competent parliamentary
assemblies (including the Flemish Parliament and the Parliaments
of the French-speaking and German-speaking communities) for it to
come into effect in Belgium. The existence of national minorities
in Belgium at all levels must be assessed in the context of the
decentralisation of the Belgian State, and especially of the wide
powers of the three communities in the area of minority rights. According
to the Venice Commission: “In Belgium,
in the light of the existing equilibrium of powers between the Dutch-speaking
and the French-speaking at the State level, French-speakers are
in a position of co-dominance and therefore do not constitute a
minority within the meaning of the framework convention at this
level, despite being numerically inferior to Dutch-speakers. German-speakers,
instead, are to be considered as a minority in the sense of the framework
convention at the State level.” On this basis, the Assembly recommended
in 2002 the ratification by Belgium and its respective competent
parliamentary assemblies (including those at the level of the regions
and the communities) of the Framework Convention for the Protection
of National Minorities (ETS No. 157) as well as the signature and
the ratification of the European Charter for Regional or Minority
Languages (ETS No. 148). To date, Belgium has still not ratified
the Framework Convention, and neither has it signed or ratified
the European Charter for Regional or Minority Languages.
the Parliamentary Assembly noted that
because of the transfer of power from the federal centre to the
Belgian federal entities, the Framework Convention for the Protection
of National Minorities would have to be ratified by the seven competent parliamentary
assemblies (including the Flemish Parliament and the Parliaments
of the French-speaking and German-speaking communities) for it to
come into effect in Belgium. The existence of national minorities
in Belgium at all levels must be assessed in the context of the
decentralisation of the Belgian State, and especially of the wide
powers of the three communities in the area of minority rights. According
to the Venice Commission: “In Belgium,
in the light of the existing equilibrium of powers between the Dutch-speaking
and the French-speaking at the State level, French-speakers are
in a position of co-dominance and therefore do not constitute a
minority within the meaning of the framework convention at this
level, despite being numerically inferior to Dutch-speakers. German-speakers,
instead, are to be considered as a minority in the sense of the framework
convention at the State level.” On this basis, the Assembly recommended
in 2002 the ratification by Belgium and its respective competent
parliamentary assemblies (including those at the level of the regions
and the communities) of the Framework Convention for the Protection
of National Minorities (ETS No. 157) as well as the signature and
the ratification of the European Charter for Regional or Minority
Languages (ETS No. 148). To date, Belgium has still not ratified
the Framework Convention, and neither has it signed or ratified
the European Charter for Regional or Minority Languages.7. Elections in Belgium are organised for legislative bodies
only, and not for executive functions. Direct elections take place
for the European Parliament, the Chamber of Representatives of the
bicameral federal parliament, the parliaments of the communities
and regions, the provincial councils, the municipal councils and a
few district councils. At the federal level, the Chamber of Representatives
consists of 150 members, each elected for a five-year term by proportional
representation.
8. Participating in the ballot is mandatory in Belgium. It
has a multi-party system and uses proportional representation in
all elections, which in general requires coalition governments.
It
has a multi-party system and uses proportional representation in
all elections, which in general requires coalition governments.9. As at 30 July 2015, Belgium had ratified 132 Council of Europe
treaties and signed 36 additional treaties without ratification. On 13 September 2012, Belgium signed
the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence (CETS No. 210). On 8 March 2013,
Belgium ratified the Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (CETS No.
201). On 25 March 2015, Belgium was amongst the 14 member States
that signed the new Council of Europe Convention against Trafficking
in Human Organs. On 7 May 2015, Belgium ratified the European Convention
on the Adoption of Children (Revised) (CETS No. 202).
On 13 September 2012, Belgium signed
the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence (CETS No. 210). On 8 March 2013,
Belgium ratified the Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (CETS No.
201). On 25 March 2015, Belgium was amongst the 14 member States
that signed the new Council of Europe Convention against Trafficking
in Human Organs. On 7 May 2015, Belgium ratified the European Convention
on the Adoption of Children (Revised) (CETS No. 202).10. This periodic report was drafted in line with Resolution 2018 (2014) and the explanatory memorandum approved by the committee
on 17 March 2015. It was discussed at committee
level on 17 March 2015 and 3 September 2015. I would like to thank
the members of the delegation who presented comments. This report is based on, inter alia, the most recent findings
of the Council of Europe monitoring mechanisms, the reports of the
Parliamentary Assembly and the Commissioner for Human Rights and,
when relevant, reports prepared by other international organisations
and civil society.
It was discussed at committee
level on 17 March 2015 and 3 September 2015. I would like to thank
the members of the delegation who presented comments. This report is based on, inter alia, the most recent findings
of the Council of Europe monitoring mechanisms, the reports of the
Parliamentary Assembly and the Commissioner for Human Rights and,
when relevant, reports prepared by other international organisations
and civil society.2. Background information
11. Belgium’s electoral system,
with Dutch- and French-speaking parties appealing to voters in linguistically distinct
regions, typically results in government coalitions with alliances
of at least two parties from each side. The Federal Council of Ministers,
headed by the Prime Minister, remains in office as long as it retains
the confidence of the Chamber of Representatives.
12. In recent years, the Belgian federal government has faced
political and cultural divisions. Following elections, Belgium went
without a government for months because of the divisions between
Dutch-speaking and French-speaking communities. Tensions between
the two main language communities have also brought down several
governments, creating frequent political instability.
13. In particular, tensions between the regions and major parties
after the June 2010 federal elections contributed to the 541-day
delay needed to form a six-party coalition government. In that period,
the Belgian Parliament took a leading role, voting bills and taking
special temporary measures. Regional and local institutions also
continued to operate at sub-national level.
14. After long negotiations between Flemish and Francophone parties,
a compromise was found by the Sixth State Reform of Belgium on 10
October 2011 – with the so-called “Butterfly Agreement” – among
the Christen-Democratisch en Vlaams (CD&V, Christian democratic),
the Centre démocrate humaniste (cdH), the socialist Socialistische
Partij Anders (sp.a), the Parti Socialiste (PS), the liberal Open
Vlaamse Liberalen en Democraten (Open Vld), the Mouvement Réformateur
(MR) and the ecologist Groen! and Ecolo. The first six parties (so
without the green parties) then formed the Di Rupo I Government
that was sworn in on 6 December 2011. The Flemish nationalist party
N-VA, which became the largest after the 2010 elections, was neither
part of the agreement nor of the government coalition.
15. In the context of the economic crisis, Belgium has been plunged
into debates about language and culture. The Belgian case of multicultural
federalism has been torn between the common values of identity and diversity
through cohesion and common purpose on the one hand, and the aspirations
for partition and separation of a linguistically divided country
on the other hand.
16. Political developments in recent years and notably the repetitive
governmental-political crises have shown that the policy of multiculturalism
and multilingual cohabitation can hardly, if at all, function any
longer as a united political system. The successive State reforms
have led to more decentralisation and weakened the unitary State.
Questions have been raised following the constitution of the Belgian
federal centre-right government coalition (see paragraph 27 below)
as it includes the New Flemish Alliance (N-VA) that promoted confederalism. When entering the coalition, members
of the government reportedly halted their agenda of institutional
change and based their programme on the implementation of the Sixth
State reform.
When entering the coalition, members
of the government reportedly halted their agenda of institutional
change and based their programme on the implementation of the Sixth
State reform.17. These developments are likely to weaken the imprint of Belgium’s
unitary past, and push for further decentralised State reforms,
and towards a possible territorial split in the future. The proposed
establishment of a “confederation” to replace the existing federal
structure is seen by some as the only way out in the long run, although
such a move could threaten the institutional weight of the existing
political forces. On the other hand, some have expressed views that
the constitution of the new government at the end of 2014 and its programme
have shown a political will for compromise in the framework of the
existing State structure.
3. Democracy
18. Political divisions between
the Dutch-speaking Flemings of the northern part of Belgium and
the French-speaking Walloons of the southern part have led in recent
years to constitutional amendments granting these regions formal
recognition and autonomy.
19. The political Butterfly Agreement defined
the Sixth State Reform. As outlined in the Institutional Agreement,
the purpose of the State Reform was to produce “a more efficient
federal state and a larger autonomy for the federated entities”.
The Sixth State Reform was planned to take place in several stages.
defined
the Sixth State Reform. As outlined in the Institutional Agreement,
the purpose of the State Reform was to produce “a more efficient
federal state and a larger autonomy for the federated entities”.
The Sixth State Reform was planned to take place in several stages.20. The two main decisions respectively concerned the transfer
of a large block of powers from federal level to the federated entities
and the preparation of a major revision of the Special Finance Act.
In addition, a number of other agreements were reached on splitting
the Brussels-Halle-Vilvorde electoral district and reforming parliament,
including simultaneous elections at the various levels of power
and abolition of direct elections to the Senate.
21. The Sixth State Reform was undoubtedly a historic step with
the substantial transfer of federal competences to the communities
and regions. The whole package of power transfers was extensive
(and represents nearly 20 billion euros), especially in comparison
with previous State reforms. Almost all sectors of the Belgian economic
and social landscape were concerned. For the very first time, competences
regarding social security were decentralised. The responsibility
concerning family allowances was decentralised from the federal
level to the communities.
22. The reform included a split of the electoral constituency
of Brussels-Halle-Vilvoorde into one electoral district for Flemish
Brabant and one for Brussels-Capital (19 municipalities). A reform
of the judicial district of Brussels was also foreseen regarding
the composition and language of the public prosecutor’s departments, the
division between Dutch-speaking and French-speaking courts, as well
as the legal provision on the use of languages in legal matters.
The Brussels district became one of the 12 new legal districts created
by the justice reform.
23. The reform also fundamentally modified the Special Finances
Act. With the financial reform, communities and regions are financed
differently, with a substantial increase of the fiscal autonomy
of the regions.
24. The reform was transposed into national legislation by the
Special Laws of 6 January 2014 and entered into force on 1 July
2014.
25. On 23 April 2012, after members of the then Belgian opposition
brought the matter to the attention of the Council of Europe, the
Parliamentary Assembly asked the Venice Commission to provide an
opinion on the recent constitutional amendment procedure in Belgium,
more particularly concerning the amendment to Article 195 of the
Constitution relating to the revision of the Constitution. The amendment
of the Constitution was aimed at opening the way for the sixth stage
of the State reform that should also contribute to the solution
of the governmental and political crisis of the country. In its
opinion on the revision of the Constitution of Belgium, adopted
on 15-16 June 2012, the Venice Commission concluded that the procedure did
not seem to have violated this Constitution or international standards,
although more transparency would have been desirable through a longer
formal procedure ensuring proper debate.
concluded that the procedure did
not seem to have violated this Constitution or international standards,
although more transparency would have been desirable through a longer
formal procedure ensuring proper debate.26. In its recommendation of 15 October 2014, the Congress
of Local and Regional Authorities of the Council of Europe welcomed
the entry into force of the Sixth State Reform. It considered that
the constitutional and legislative foundations of self-government
were fully complied with throughout the country and that the scope
of local self-government was generally respected. The Congress invited
the authorities to improve the procedure for consulting the communities
and regions, and urged the community and regional authorities to pay
particular attention to the financial situation of municipalities
and provinces, ensuring that they had diversified and adequate resources.
of 15 October 2014, the Congress
of Local and Regional Authorities of the Council of Europe welcomed
the entry into force of the Sixth State Reform. It considered that
the constitutional and legislative foundations of self-government
were fully complied with throughout the country and that the scope
of local self-government was generally respected. The Congress invited
the authorities to improve the procedure for consulting the communities
and regions, and urged the community and regional authorities to pay
particular attention to the financial situation of municipalities
and provinces, ensuring that they had diversified and adequate resources.27. On 25 May 2014, triple European, federal and regional elections
took place simultaneously. Regional strategies played a strong role
in shaping the new federal coalition that took office after three
months of negotiations. 139 days after the federal elections, the
new Belgian federal centre-right government, led by the liberal
francophone Charles Michel, took office. It is composed of one francophone
party, the liberal Mouvement Réformateur (MR) and three Flemish
parties: the liberal Open Vlaamse Liberalen en Democraten (Open
Vld), the Christian democratic Christen-Democratisch en Vlaams (CD&V)
and the Flemish nationalist Nieuw-Vlaamse Alliantie (N-VA). For
the first time since 1988, the governing coalition did not include
the francophone Socialist
Party (PS). The N-VA – which consolidated its position as the Belgian Parliament’s largest
political party – entered the new coalition. Since the May 2014
elections, the Humanist Democratic Centre (cdH) is no longer part
of the federal government.
28. In a 207-page coalition programme, the government developed
a reform agenda on the fiscal, social and economic fronts. According
to the coalition parties, the programme is based on a strong common
consensus which is instrumental in the implementation of its related
policies. They consider it a major change from the past as, in their
view, the new political set-up will allow actual implementation
of reforms.
29. Belgium has been severely affected by the global economic
crisis. The coalition government committed to cut its public sector
deficit in line with EU obligations and to reach a balanced budget
by 2018. Major criticisms were raised from the political opposition
and trade unions. At the end of 2014, a month of intermittent industrial
action was launched by the Belgian trade unions to protest against
new government austerity measures, which culminated in a general
stoppage in mid-December 2014. At the beginning of 2015, the trade unions
launched new anti-government action against austerity measures.
30. The coalition government is confronted with various challenges
due to the complexity of the institutional, political and economic
situation in the country. The government’s fiscal consolidation
agenda is provoking significant resistance from the opposition socialists
and trade unions. Although the coalition has 85 of the 150 seats
in the Lower House, it only has 20 out of 63 French-speaking deputies
in the Lower House. In addition, the political representation in
the federal government totally differs from the representation at
regional level in the French-speaking part of the country, which
could lead to political tension and create a challenging environment
for the implementation of important reforms.
31. Furthermore, the Prime Minister is not the leader of the biggest
coalition partner. The government is also facing strong (and mostly
united) political opposition in the Chamber of Representatives.
And yet, coalition government members reportedly do not consider
that this perceived instability and opposition will hamper the implementation
of the government’s policies.
32. The announcement by the Belgian Prime Minister of a 12-point
plan against terrorism and radicalism following the Paris terrorist
attacks and the anti-terror raid conducted by the Belgian police
on 15 January 2015 has prompted additional tensions within the ruling
coalition.
4. Human rights and fundamental freedoms
33. Following the recent attacks
in Paris and the dismantling of a terrorist cell in Belgium, the
Belgian government announced 12 measures to improve the effectiveness
of the fight against radicalism and terrorism including, inter alia: extending the use of
special investigative methods; expanding opportunities for deprivation of
citizenship; temporary withdrawal of an identity card, passport
denials and assets seizure; exchange of information and capacity
to analyse State security; the fight against radicalism in prisons;
calling the army for specific supervisory tasks. The League of Human
Rights expressed concerns over the measures taken , recalling that the principles of
necessity and proportionality should be applied, so as to ensure
that fundamental freedoms do not become collateral damage in the
legitimate struggle against terrorism.
, recalling that the principles of
necessity and proportionality should be applied, so as to ensure
that fundamental freedoms do not become collateral damage in the
legitimate struggle against terrorism.34. In the Belgian constitutional set-up, in which the State powers
are divided among and exercised by the federal authority, the communities
and the regions, co-ordination between the different State entities
is essential for the protection of human rights.
35. In the field of anti-discrimination, the European Commission
against Racism and Intolerance (ECRI) published its last report in February 2014, in which it noted
steps forward. However, it highlighted a number of issues, such
as the problematic application of the anti-discrimination legislation
in certain areas and certain questionable aspects of the integration
programmes.
in February 2014, in which it noted
steps forward. However, it highlighted a number of issues, such
as the problematic application of the anti-discrimination legislation
in certain areas and certain questionable aspects of the integration
programmes.36. On the one hand, ECRI’s report acknowledges the fact that
the Centre for Equal Opportunities and Opposition to Racism will
be able to work at all State levels due to an agreement between
the federal authorities and the federated entities. The legislative
process to turn the existing Centre for Equal Opportunities and Opposition
to Racism into an inter-federal institution still needs to be completed.
Numerous judicial proceedings have been initiated against individuals
and legal entities advocating hatred and violence. Media self-regulatory
bodies are particularly active in combating the dissemination of
hate speech through the media. The ECRI report also welcomes the
action plan to combat homophobic and transphobic violence and anti-discrimination
legislation towards LGBT persons.
37. On the other hand, as noted by ECRI, Belgium has not yet ratified
Protocol No. 12 to the European Convention on Human Rights. Anti-racism
and anti-discrimination legislation is scattered in a number of
laws at federal and federated entities level, and its implementation
remains problematic. Data on hate speech and racist violence are
too fragmentary to give a clear picture of the situation in the
country. Ethnic and religious groups, in particular Muslims, continue
to face discrimination. Although measures have been taken by the authorities
in recent years, there are still not enough properly equipped transit
sites for Travellers. Despite specific provisions of the law, there
is no independent body competent on questions relating to discrimination on
grounds of language. The situation concerning hate speech on the
Internet is extremely worrying, and Belgium has not ratified the
Additional Protocol to the Convention on Cybercrime, concerning
the criminalisation of acts of a racist and xenophobic nature committed
through computer systems.
38. On 1 July 2015, a round table was organised by ECRI in co-operation
with the Belgian Inter-federal Centre for Equal Opportunities to
discuss the follow-up to the recommendations contained in the ECRI
report. Once available, the conclusions of the roundtable will be
a useful tool to assess the state of implementation of the recommendations
and to ensure proper follow-up.
39. The Belgian authorities have taken a number of important steps
to prevent and combat trafficking in human beings in compliance
with the Council of Europe Convention on Action against Trafficking
in Human Beings. In particular, based on GRETA’s findings, the Committee
of the Parties’ Recommendation CP(2013)8 acknowledged the following: a legal and
policy framework is in place; specialised anti-trafficking structures
have been set up; awareness-raising measures for professionals are
being implemented; a co-ordinated and multidisciplinary approach
towards victims is being applied; significant efforts are being
made to carry out proactive investigations.
acknowledged the following: a legal and
policy framework is in place; specialised anti-trafficking structures
have been set up; awareness-raising measures for professionals are
being implemented; a co-ordinated and multidisciplinary approach
towards victims is being applied; significant efforts are being
made to carry out proactive investigations.40. Based on the Committee of the Parties’ recommendation, the
authorities will need to take further action in order to improve
the implementation of the Convention on Action against Trafficking
in Human Beings, in particular: pay increased attention to measures
against child trafficking; ensure that the referral and assistance mechanisms
are adapted to the victims’ needs; systematically inform victims
of the possibility of benefiting from a recovery and reflection
period; ensure that there are repatriation assistance arrangement
suitable for all victims of trafficking; continue efforts in the
field of prosecution of traffickers. The government is expected
to report to the Committee of the Parties on the measures taken
by 7 October 2015.
41. One issue has been raised for years by the Council of Europe
bodies, without noticeable improvements: the Commissioner for Human
Rights, the Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) and the European Court
of Human Rights (“the Court”) have criticised Belgium several times
for its failure to treat mentally ill prisoners properly. Applicants claim that they are
kept for long periods of time in institutions which do not offer
the care and support their psychiatric condition requires, i.e. prison
psychiatric wings (violation of Article 5.1 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) in all cases; violation
of Article 3 in certain cases ).
In several cases, the Court
also held that there was a lack of an effective remedy to complain
about the conditions of detention (violation of Article 5.1).
Applicants claim that they are
kept for long periods of time in institutions which do not offer
the care and support their psychiatric condition requires, i.e. prison
psychiatric wings (violation of Article 5.1 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) in all cases; violation
of Article 3 in certain cases ).
In several cases, the Court
also held that there was a lack of an effective remedy to complain
about the conditions of detention (violation of Article 5.1).42. The Belgian authorities provided a revised action plan on
the execution of such cases on 10 February 2014 and 10 June 2014,
after eight new final judgments joined this group of cases. Concerning
the violations of Article 5.1 and of Article 3 of the Convention,
the revised action plan indicated notably that the Federal Ministry
of Health and the Federal Ministry of Justice were working on mapping
the population of internees, the supply of health care to internees
and the needs in this field. Moreover, the authorities have engaged
in a reflection on ways in which medical assistance to interned
persons can be improved. The authorities also reported on the adoption
of a new law on psychiatric detention on 5 May 2014. Concerning
the violations of Article 5.4 of the Convention, the authorities
indicated that recent court decisions demonstrate that there are effective
remedies in Belgium for interned persons.
Concerning
the violations of Article 5.1 and of Article 3 of the Convention,
the revised action plan indicated notably that the Federal Ministry
of Health and the Federal Ministry of Justice were working on mapping
the population of internees, the supply of health care to internees
and the needs in this field. Moreover, the authorities have engaged
in a reflection on ways in which medical assistance to interned
persons can be improved. The authorities also reported on the adoption
of a new law on psychiatric detention on 5 May 2014. Concerning
the violations of Article 5.4 of the Convention, the authorities
indicated that recent court decisions demonstrate that there are effective
remedies in Belgium for interned persons.43. The structural issue nevertheless remains and further efforts
are needed. This question has been at the core of several media
articles in recent months, with a number
of mentally ill prisoners in Belgium having requested euthanasia
due to the absence of adequate medical treatment in the detention
facilities. This raises important issues about the use of euthanasia,
in the light of the discussions within the Parliamentary Assembly in
recent years.
in recent months, with a number
of mentally ill prisoners in Belgium having requested euthanasia
due to the absence of adequate medical treatment in the detention
facilities. This raises important issues about the use of euthanasia,
in the light of the discussions within the Parliamentary Assembly in
recent years. 44. A series of judgments of the European Court of Human Rights
have assessed the compliance of the Belgian procedure with international
standards when immigration decisions could have a detrimental effect
on human rights. Both the Belgian Constitutional Court and the European
Court of Human Rights have come to the conclusion that the Belgian
framework of immigration litigation lacks the necessary level of
effective remedy when claims of violation of human rights are presented. In its Resolution
CM/ResDH(2014)272 on the execution of the judgment M.S.S. v. Belgium and Greece, the
Committee of Ministers closed the examination in respect of Belgium
in December 2014, based on the set of measures taken in response
to the Court’s finding of a violation of Article 13 of the Convention.
The question of whether asylum seekers benefit from a remedy with
automatic suspensive effect only in cases where they are deprived
of their liberty nevertheless remains open.
In its Resolution
CM/ResDH(2014)272 on the execution of the judgment M.S.S. v. Belgium and Greece, the
Committee of Ministers closed the examination in respect of Belgium
in December 2014, based on the set of measures taken in response
to the Court’s finding of a violation of Article 13 of the Convention.
The question of whether asylum seekers benefit from a remedy with
automatic suspensive effect only in cases where they are deprived
of their liberty nevertheless remains open.45. Concerning the detention of asylum seekers, the United Nations
Committee against Torture recommended in its concluding observations
on the third periodic report on Belgium that the State Party should only
detain asylum seekers as a last resort and, when it is necessary,
for as short a period as possible and without excessive restrictions,
In 2013, the authorities increased the number of spaces in reception
centres for asylum seekers. However, according to Amnesty International,
places remain insufficient, and undocumented migrant families are
still denied access. It is worth recalling that various
measures have been taken by the Belgium authorities over the years
to adapt the former detention policy for unaccompanied and accompanied
minors. In its Resolution
2020 (2014), the Assembly noted with satisfaction that Belgium
had taken steps towards ending the immigration detention of children.
that the State Party should only
detain asylum seekers as a last resort and, when it is necessary,
for as short a period as possible and without excessive restrictions,
In 2013, the authorities increased the number of spaces in reception
centres for asylum seekers. However, according to Amnesty International,
places remain insufficient, and undocumented migrant families are
still denied access. It is worth recalling that various
measures have been taken by the Belgium authorities over the years
to adapt the former detention policy for unaccompanied and accompanied
minors. In its Resolution
2020 (2014), the Assembly noted with satisfaction that Belgium
had taken steps towards ending the immigration detention of children.46. In the case Trabelsi v. Belgium, the country disregarded the interim measure
(Rule 39 of the Rules of Court) issued by the European Court of
Human Rights by extraditing a Tunisian national from Belgium to
the United States, where he has been prosecuted on charges of terrorist
offences and is liable to life imprisonment. The Court ruled that
Belgium failed in its obligations under Article 34 of the Convention.
The failure of the Belgian State to observe the suspension of extradition
indicated by the Court has irreversibly lowered the level of protection
of the rights secured under Article 3 and interfered with the applicant’s
right of individual petition.
the country disregarded the interim measure
(Rule 39 of the Rules of Court) issued by the European Court of
Human Rights by extraditing a Tunisian national from Belgium to
the United States, where he has been prosecuted on charges of terrorist
offences and is liable to life imprisonment. The Court ruled that
Belgium failed in its obligations under Article 34 of the Convention.
The failure of the Belgian State to observe the suspension of extradition
indicated by the Court has irreversibly lowered the level of protection
of the rights secured under Article 3 and interfered with the applicant’s
right of individual petition.47. In view of the above, it is important that the Belgian Parliament
becomes involved in efforts to promote the execution of the Court’s
judgements. To this end, it should task a committee with looking
into the implementation of the Convention and the Court’s jurisprudence
at national level, as recommended by Parliamentary Assembly President
Anne Brasseur during her last visit to Belgium.
48. The European Committee of Social Rights found Belgium to be
in breach of the European Social Charter with regard to corporal
punishment of children. In a decision published in May 2015, it
found that the corporal punishment of children was not prohibited
in a sufficiently clear, binding and precise manner in Belgian legislation
or case law, and also pointed out that it had repeatedly found that
the situation was not in conformity with Article 17 of the Charter
(Conclusions 2011).
49. There are no other specific concerns to raise relating to
the protection and promotion of human rights in Belgium.
5. Rule of law
50. The issues of prison overcrowding
and conditions of detention in Belgian prisons have been raised
for years by the Council of Europe monitoring bodies. In the case of Vasilescu
v. Belgium, the
European Court of Human Rights recently held that there was a violation
of Article 3 (prohibition of inhuman or degrading treatment) of
the European Convention on Human Rights regarding the physical conditions
of the applicant’s detention. The problems arising from prison overcrowding
in Belgium, and the problems of unhygienic and dilapidated prison
institutions, are structural in nature.
In the case of Vasilescu
v. Belgium, the
European Court of Human Rights recently held that there was a violation
of Article 3 (prohibition of inhuman or degrading treatment) of
the European Convention on Human Rights regarding the physical conditions
of the applicant’s detention. The problems arising from prison overcrowding
in Belgium, and the problems of unhygienic and dilapidated prison
institutions, are structural in nature.51. The Court has recommended that Belgium envisage adopting general
measures guaranteeing prisoners conditions of detention compatible
with Article 3 of the Convention and affording them an effective
remedy by which to put a stop to an alleged violation or allow them
to obtain an improvement in their conditions of detention. It is
worth noting that in its Government Agreement of 10 October 2014,
the government foresaw a renewed penitentiary policy, including
measures to combat prison overcrowding and adequate treatment facilities
for detainees with mental illness.
52. The perception of corruption in Belgium is at a relatively
low level, and below the EU average. Petty corruption seems relatively
rare. And yet corruption remains an issue in Belgium and the situation
is far from being satisfactory. While the legal framework to fight
corruption is largely in place, a number of GRECO recommendations
on criminal law and party funding have remained unimplemented or
partly implemented. In its third evaluation round, GRECO issued
a third interim compliance report in March 2015 acknowledging
the progress made by Belgium by implementing fully three recommendations
and partly nine recommendations, out of the fifteen contained in
the evaluation report. GRECO decided that the level of compliance
was no longer “globally unsatisfactory” based on Rule 31, paragraph
8.3 of the Rules of Procedure, and that it would not continue applying
Rule 32 concerning members found not to be in compliance with the
recommendations contained in the evaluation report. GRECO again
reiterated its appeal to Belgium to pursue more resolutely the implementation
of the various outstanding recommendations.
in March 2015 acknowledging
the progress made by Belgium by implementing fully three recommendations
and partly nine recommendations, out of the fifteen contained in
the evaluation report. GRECO decided that the level of compliance
was no longer “globally unsatisfactory” based on Rule 31, paragraph
8.3 of the Rules of Procedure, and that it would not continue applying
Rule 32 concerning members found not to be in compliance with the
recommendations contained in the evaluation report. GRECO again
reiterated its appeal to Belgium to pursue more resolutely the implementation
of the various outstanding recommendations.53. GRECO regretted that only one recommendation for political
financing (Theme II) had been fully implemented. It noted that amendments
had been introduced in January 2014 which impacted positively transparency
and control of political financing, but on the whole represented
only limited advances. For example, Belgium had taken steps to ensure
that the regulations also apply to political parties ineligible
for public grants at federal level, in order to strengthen the supervisory
machinery or to establish a wider, more proportionate and more effective
scale of sanctions. And yet the new regulations on support by legal
persons coming under the definition of sponsorship remained problematic.
Measures also remained to be taken with regard to the federated
entities and their regulations.
54. Concerning Theme I on incriminations, no definite advance
was to be reported at the federal ministerial level, in particular
with regard to the implementation of the recommendation calling
for a remedy to a legal vacuum left by the removal of a reservation
to the Criminal Law Convention on Corruption.
55. GRECO asked the authorities to report by 31 July 2015 on the
measures taken to implement the outstanding recommendations of the
third evaluation round.
56. In its evaluation report in the fourth evaluation round, GRECO acknowledged that Belgium’s
judiciary overall enjoys public confidence. The Belgian justice
system can be seen to be independent and decentralised.
acknowledged that Belgium’s
judiciary overall enjoys public confidence. The Belgian justice
system can be seen to be independent and decentralised.57. The Belgian judicial and prosecuting authorities have to contend
with funding and staffing shortages. There is no general system
to assess the functioning of the courts. The High Council of Justice
should reinforce its auditing role and managerial function within
the courts and the prosecution service should be developed. One
of the issues raised by GRECO is the increased use of “back-up magistrates”
who sometimes account for half of the staff in court, due to budgetary
constraints.
58. As underlined by GRECO in its report, meeting the highest
standards of judicial integrity is a requirement that concerns all
parts of the judicial system, including the administrative courts.
However, to date, the organisation of the system of administrative
justice had not yet been finalised. There is a need to reinforce preventive
measures concerning corruption within judicial institutions.
59. Since the publication of the GRECO report, a reform of the
justice system, including geographical reorganisation and increased
mobility, entered into force in April 2014. On 18 March 2015, the
Minister of Justice presented his Action Plan for Justice (Plan
Justice) to the Belgian Parliament, announcing reforms of criminal
and civil procedures as well as an overhaul of the judiciary. In
this framework, the Council of Ministers examined on 25 June 2015
in first reading the draft law entitled “pot-pourri II” (criminal
law and criminal procedure), while the draft law entitled “pot-pourri
I” (civil procedure) was approved in second reading by the Council
of Ministers and ready for submission to the parliament.
60. Concerning preventive measures against corruption within the
parliamentary institutions, codes of deontology and a Federal Ethics
Committee have been established, as well as preventive measures
for federal parliamentarians, which include a system for the declaration
of donations, official appointments, other positions held and assets.
61. However, the regulatory system suffers from a lack of effectiveness
and sometimes appears to be unnecessarily complex. Following GRECO’s
recommendation, it is important to ensure that more coherent and effective
regulations are put in place, notably concerning gifts and other
benefits, and also on how to engage in relations with third parties,
such as lobbies, who seek to influence the parliamentary process.
Moreover, the system of declarations has to be revised in order
to clearly include the income and an estimate of the value of the
assets of members of parliament, which must be public and easily
accessible.
62. GRECO invited the authorities of Belgium to submit a report
on the measures taken to implement the recommendations of its fourth
evaluation round by 30 September 2015, to be assessed in the framework
of its specific compliance procedure.
63. There is no other specific concern for Belgium in the area
of the rule of law.
6. Conclusions and recommendations
64. Overall, Belgium has been honouring
its membership obligations to the Council of Europe in the period under
review.
65. In recent years, the Belgian federal government has faced
frequent political instability, with tensions between the two main
language communities having prevented the constitution of governments
and having brought down governments. Belgium’s political scene has
been torn between the common values of identity and diversity through
cohesion on the one hand, and the aspirations for partition of a
linguistically divided country on the other, which have hampered
the functioning of the State structures. The recent Sixth State Reform
that is still under way is an attempt to find a political consensus
and is aimed at producing a more efficient federal State and greater
autonomy for the federated entities. Further steps are needed to
secure the functioning of the State structures taking into account
Belgium’s specificities. It is important for Belgium to pursue reforms
based on proper debate and transparent processes so as to allow
for political stability through co-operation and cohabitation between
communities.
66. With regard to racism and intolerance, there have been positive
developments in Belgium with progress being made in a number of
fields. The outstanding issues will have to be addressed in the
light of the conclusions of the round table recently organised by
ECRI in co-operation with the Belgian Inter-federal Centre for Equal
Opportunities.
67. Measures have been taken by Belgium with regard to its framework
of immigration litigation to address the lack of the necessary level
of effective remedy for cases where asylum seekers are deprived
of their liberty. Action is still needed to address the issue of
detention of asylum seekers and to ensure access to reception centres.
It is important to note that the former detention policy for unaccompanied
and accompanied minors has been adapted with a view to ending the
detention of immigrant children.
68. The ratification in 2013 of the Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse and the
European Convention on the Adoption of Children (revised) further
demonstrates Belgium’s commitment to the protection of children’s
rights.
69. Although the authorities have taken a number of measures in
the framework of the implementation of the GRECO recommendations
for the third evaluation round, they need to pursue more resolutely
the implementation of the various outstanding recommendations. The
assessment of the implementation of the recommendation of the fourth
evaluation round will take place in the framework of the compliance
specific procedure.
70. The issues of prison overcrowding and conditions of detention
in Belgian prisons remain a structural issue that needs to be urgently
addressed in order to guarantee prisoners conditions of detention
compatible with Article 3 of the Convention and afford them an effective
remedy. The failure to properly treat mentally ill prisoners is
a long-standing problem in Belgium. The authorities have taken measures
to address the situation, but the structural issue nevertheless
remains and further efforts are needed.
71. It is essential that Belgium conforms with interim measures
(Rule 39 of the Rules of Court) issued by the European Court of
Human Rights, in full compliance with its obligations under Article
34 of the Convention. It is important that the Belgian Parliament
becomes involved in efforts to promote the execution of the Court’s judgments
through the designation of a committee to look into the implementation
of the Convention and the Court’s jurisprudence at national level.
72. Belgium has so far not signed/ratified certain Council of
Europe conventions. Based notably on the findings of the main monitoring
mechanisms, Belgium should be encouraged, inter
alia, to:
72.1. ratify
Protocol No. 12 to the European Convention on Human Rights (ETS
No. 177);
72.2. ratify the Council of Europe Convention on Preventing
and Combating Violence against Women and Domestic Violence;
72.3. ratify the Additional Protocol to the Convention on Cybercrime,
concerning the criminalisation of acts of a racist and xenophobic
nature committed through computer systems;
72.4. ratify the Framework Convention for the Protection of
National Minorities.
73. With regard to prison overcrowding and conditions of detention,
including the situation of mentally ill prisoners, Belgium should
adopt without delay general measures as recommended by the European
Court of Human Rights and the Committee of Ministers in the case Vasilescu v. Belgium and the group of cases L.B. v. Belgium.
74. In the light of the findings of the Council of Europe monitoring
mechanisms, a certain number of additional issues raise concerns
and should be addressed by the authorities before the next periodic
review. The committee therefore recommends that the authorities:
74.1. continue efforts on issues relating
to racism and intolerance and further implement the recommendations
of ECRI;
74.2. further implement the Congress of Local and Regional Authorities’
recommendations on the situation of local and regional democracy
in Belgium;
74.3. continue implementation of the outstanding GRECO recommendations,
taking into account the conclusions of its existing and forthcoming
evaluation and compliance reports.
74.4. take further action in order to improve the implementation
of the Convention on Action against Trafficking in Human Beings,
based on the recommendations made by GRETA and the Committee of the
Parties to combat trafficking in human beings.
Appendix
(open)Council of Europe conventions signed and/or ratified between 1 October 2013 and 30 July 2015 by Belgium
CETS No. 063: European Convention on the Abolition of Legalisation of Documents executed by Diplomatic Agents or Consular Officers
Signature: 10/12/2014
CETS No. 202: European Convention on the Adoption of Children (Revised)
Ratification or accession: 7/5/2015
CETS No. 208: Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters
Ratification or accession: 8/12/2014; Entry into force: 1/4/2015
CETS No. 213: Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms
Signature: 7/10/2013
CETS No. 216: Council of Europe Convention against Trafficking in Human Organs
Signature: 25/3/2015
Recent findings of Council of Europe monitoring mechanisms and other bodies as at 30 July 2015
|
European Court of Human Rights |
European Convention on Human Rights (ETS No. 5) ratified in 1955 Protocol No. 1 (ETS No. 009) ratified in 1955 Protocol No. 2 (ETS No. 044) ratified in 1970 Protocol No. 6 (ETS No. 114) ratified in 1998 Protocol No. 12 (ETS No. 177) signed in 2000 Protocol No. 13 (ETS No. 187) ratified in 2003 Protocol No. 14 (CETS No. 194) ratified in 2006 Out of a total of 69 900 applications pending before a judicial formation on 31 December 2014, 367 concerned Belgium. Resolutions adopted by the Committee of Ministers: 2 in 2013, 8 in 2014 and 3 in 2015. |
|
Congress of Local and Regional Authorities |
European Charter on Local Self-Government (ETS No. 122) ratified in 2004 Last report and recommendation on local and regional democracy in Belgium adopted on 15 October 2014: CG(27)7FINAL and Recommendation 366 (2014) |
|
Group of States against Corruption (GRECO) |
Civil Law Convention on Corruption (ETS No. 174) ratified in 2007 Criminal Law Convention on Corruption (ETS No. 173) ratified in 2004, Additional Protocol (ETS No. 191) ratified in 2009 Third evaluation round: second interim compliance report on Belgium: “Incriminations (ETS 173 and 191, GPC 2)”, “Transparency of party funding”, adopted by GRECO at its 61st plenary meeting, Strasbourg 14-18 October 2013, published on 4 July 2014, GRECO RC-III(2013)19E second interim report Third evaluation round: third interim compliance report on Belgium: “Incriminations (ETS 173 and 191, GPC 2)”, “Transparency of political party funding”, adopted by GRECO at its 65th plenary meeting, Strasbourg 6-10 October 2014, published on 5 March 2015, Greco RC-III(2014)20E third interim report Fourth evaluation round: corruption prevention in respect of members of parliament, judges and prosecutors: evaluation report: Belgium, adopted by GRECO at its 63rd plenary meeting, Strasbourg, 24-28 March 2014, published on 28 August 2014, Greco Eval IV Rep (2013)8E |
|
Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) |
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 1990 (ETS No. 141) ratified in 1998 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (revised) (CETS No. 198) ratified in 2009 Belgium is not a member of MONEYVAL. |
|
Commissioner for Human Rights |
Report by the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, on his visit to Belgium 15-19 December 2008, CommDH(2009)14 |
|
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) |
Convention (ETS No. 126) ratified in 1991, Protocols No. 1 (ETS No. 151) and No. 2 (ETS No. 152) ratified in 1996 Publication of the last report: December 2012, CPT/Inf (2012)36 (in French only) Last country visit: September-October 2013 |
|
Group of Experts on Action against Trafficking in Human Beings (GRETA) and Committee of the Parties |
Convention (CETS No. 197) ratified in 2009 1st Evaluation Round: - Evaluation visit in October 2012 - GRETA’s Evaluation Report and Government’s Comments published in September 2013, GRETA(2013)14 - Recommendation CP(2013)8 of the Committee of the Parties adopted in October 2013 |
|
Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO)andCommittee of the Parties |
Convention on preventing and combating violence against women and domestic violence (CETS No. 210) signed in 2012 but not ratified |
|
European Commission against Racism and Intolerance (ECRI) |
The 5th report on Belgium was adopted in December 2013 and made public in February 2014, CRI(2014)1. |
|
Venice Commission |
Last opinion: Opinion on the Revision of the Constitution of Belgium adopted by the Venice Commission at its 91st Plenary Session, Venice, 15-16 June 2012, CDL-AD(2012)010 |
Other Treaties:
|
Framework Convention for the Protection of National Minorities |
Convention (ETS No. 157) signed in 2001 but not ratified |
|
European Charter for Regional or Minority Languages |
Convention (ETS No. 148) neither signed nor ratified |
|
European Social Charter |
European Social Charter of 1961 (ETS No. 35) ratified in 1990 European Social Charter (revised) (ETS No. 163) ratified in 2004 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (ETS No. 158) ratified in 2003 |