"The gravity of the situation in several prisons now reached an unprecedented level." 49 Between April and June 2016 there were widespread strikes by staff within Belgian prisons. As a result, the CPT conducted another ad-hoc visit in May 2016 visiting a number of different prisons in order to report specifically on the ongoing strike. The report on this visit which was published in November 2016 repeats some of the criticisms to which I have already referred, but it also emphasised the failure to legislate for safeguards in the event of future strikes. Particular issues which it noted in relation to the strikes included the fact that during industrial action the vast majority of prisoners had no opportunity of open-air exercise or any other activity outside their cells for a period of nearly two weeks. Many were locked in their cells for twenty-four hours a day. In the establishments visited, food supply was restricted or blocked for several days by strike pickets and generally three meals were distributed to prisoners at once. Access to showers was restricted to one or two showers weekly. Laundry and healthcare services and contact with the outside world were also significantly affected. It noted that these conditions led to ever-increasing tensions among detainees. 50 The Belgian Government's response to this report (also published in November 2016) stated that it had taken the following action. First, injunctions had been sought in the courts to guarantee the basic rights of prisoners. This included the obtaining of injunctions to prevent picketing of prisons. Secondly, recourse was made to the local and federal police, the armed services, civil defence and the Red Cross to assist prison staff and management in order to meet as far as possible the rights and needs of inmates. Thirdly, during the strike prison leave of one or two weeks was granted to some two-hundred inmates, thereby reducing the number of prisoners. Fourthly, after the strike, provision had been introduced for the early release of some prisoners thereby reducing the national prison population to 10,250. Fifthly, after the strike the normal regime was re-established in each prison at the end of June 2016. 51 The response stated: "
“(1) Please confirm in which prisons each appellant would be held post-extradition including upon arrival in Belgium, pending any retrial and during the service of their respective sentences; (2) Please provide an assurance of the minimum square metres of personal space each appellant will be afforded within their cell excluding toilets; (3) Please confirm the arrangements for the appellants to use toilets in all facilities in which they may be held. Please confirm whether these are in-cell facilities and if so whether they are partitioned or separated from other prisoners or what measures are taken to guarantee their privacy and dignity; (4) What provisions will be made for each of these appellants to engage in out-of-cell activities? (5) Are the judicial authorities able to provide an assurance that these appellants will not be held at a prison where a warder strike is taking place?”
“1. There have been UNION ACTIONS (STRIKES) by some unions representing a portion of the prison staff in some Belgian prisons in the past. These strikes have occurred during the time frame 25 April – June 2016. Since June 2016, these strikes have ended and since June 2016 no new strikes have occurred in any of the Belgian prisons. It should be noted that at the material time, i.e. more than one year ago, only some of the French speaking unions have called for a strike, which means that these strikeshave exclusively occurred in French speaking prisons, i.e. the prison located in the south of the country and in two Brussels prisons, albeit partially since these facilities are bilingual. The strikes were related to the (then) new prison personnel plan. Immediately after the outbreak of the partial strike, negotiations were held between the minister (of Justice) and the relevant union’s representatives. These have led to a sustainable solution. Accordingly, the appellants run no risk at all to be detained in a Belgian prison where the prison staff would be on strike and where any of the facilities or activities for the benefit of the prisoners would be diminished because of a strike or any other type of union action. 2. The appellants are the subject of pre-trial proceedings – prosecutions – by the Antwerp judicial authorities. This means that the proceedings must be conducted in the official language, i.e. Dutch. Consequently, the appellants will be detained in a Dutch speaking prison, both during the pre-trial, the trial proceedings and during the post-trial execution of the eventual (prison) sentence(s). Like every prisoner, the appellants may request their transfer to any other prison during the post-trial (sentencing) phase if their current location would be detrimental for their (distant) family to visit the appellants. The appellants will be held in the Beveren prison, outside of Antwerp. Beveren prison was constructed between 2012-2014 and is open since March 2014. Beveren prison is part of Prison Masterplan II encompassing substantial renovations of older facilities and the construction of new facilities, two of which were commissioned in 2014. The facility is of the latest design and meets European and domestic prison standards. Beveren prison has 284 cells, 12 cells are currently free – status on5 July 2017 . 252 cells are mono-cells (for one person). The dimensions are: 3,5m x 2,70m = 9,45 m 2, including the sanitary bloc, which includes the shower and the toilet. The other 32 cells are dual-cells which are exactly the double in size as the mono-cells, i.e. 18,9 m 2, including the sanitary bloc. The latter are occupied by not more than two inmates. The sanitary bloc is separated from the rest of the cell, both in the individual and in the dual cells in order to assure privacy and dignity. There are no particular restrictions as to the use of the toilet. Out–of-cell activities include regular walks on the (open) court. Beveren prison, has sports and fitness facilities, a library and a workspace enabling inmates to have a regular job, including repair and industrial / construction tasks for private contracts. Like all prisoners, the appellants will be able to benefit from these facilities and participate to these activities. Beveren prison is the pioneer facility for the so-called Prison Cloud, a secure intranet system that enables prisoners for instance to consult their case file electronically.”
“12. The CPT considers that failure to comply with these requirements may result in a large number of inmates being subjected to inhuman or degrading treatment, or the aggravation of situations already characterised as intolerable, endangering the health and life of inmates and compromising the security of the establishments concerned. The lack of concrete progress over many years in establishing a viable system for these rights to be upheld in all circumstances, in particular in the context of industrial action by prison staff, is a serious failure to co-operate with the Committee, about which successive Belgian governments have made their views known on numerous occasions. For these reasons, the CPT has had no choice but to make this public statement, pursuant to Article 10, paragraph 2, of the Convention establishing the Committee.”
“The Article 3 test in the context of extradition is whether there are substantial grounds for believing that there is a real risk that the person extradited would be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions upon his return and (if convicted) during any imprisonment. To make a conclusion based on this test the court has to examine the present and prospective position as best it can on the materials now available. In “prison condition” cases the factual position is unlikely to be static. There may be new evidence about the conditions in a country generally or a particular prison where the position has already been considered by a court. The view of any court, even the ECtHR, on prison conditions in a country or a particular prison at any time is only definitive at the time that the view is expressed. If cogent evidence is adduced which demonstrates that the view a court took previously about prison conditions generally or in a particular prison can no longer be maintained, then the court must review again the evidence about the relevant prison conditions. Evidence is unlikely to be treated as cogent unless it demonstrates something approaching an international consensus that the position has changed. To adopt a lower threshold would introduce an unacceptable degree of uncertainty in the area. But, an obvious example where the test may well be satisfied is where the Strasbourg or Luxembourg courts have held a Contracting or Member State to be in breach of its Article 3 obligations regarding prison conditions, has required that remedial measures be undertaken, which have then been implemented and upon which the Committee of Ministers or the ECtHR have then indicated views.”
“87. Articles 1 and 4 of the Charter andArticle 3 ECHR enshrine one of the fundamental values of the Union and its Member States. That is why, in any circumstances, including those of the fight against terrorism and organised crime, the ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see judgment of the ECtHR in Bouyid v. Belgium, No. 23380/09 of28 September 2015 , § 81 and the case-law cited). 88. It follows that, where the judicial authority of the executing Member Sate is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, having regard to the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter (see, to that effect, judgment in Melloni, C-399/11, EU:C2013:107, paragraphs 59 and 63, and Opinion 2/13, EU:C:2014:2454, paragraph 192), that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual sought by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment. 89. To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgment of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN. 90. In that regard, it follows from the case-law of the ECtHR thatArticle 3 ECHR imposes, on the authorities of the State on whose territory an individual is detained, a positive obligation to ensure that any prisoner is detained in conditions which guarantee respect for human dignity, that the way in which detention is enforced does not cause the individual concerned distress or hardship of any intensity exceeding the unavoidable level of suffering that is inherent in detention and that, having regard to the practical requirements of imprisonment, the health and well-being of the prisoner are adequately protected (see judgment of the ECtHR in Torreggiani and Others v. Italy, Nos 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10, and 37818/10, of8 January 2013 , § 65). 91. Nonetheless, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant. 92. Whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State. 93. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, with respect to detention conditions in the issuing Member State does not necessarily imply that, in a specific case, the individual concerned will be subject to inhuman or degrading treatment in the event that he is surrendered to the authorities of that Member State. 94. Consequently, in order to ensure respect for Article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4. 95. To that end, that authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State. 96. That request may also relate to the existence, in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons. 97. In accordance with Article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing Member State, under Article 7 of the Framework Decision. Under Article 15(2) of the Framework Decision, that time limit must however take into account the need to observe the time limits set in Article 17 of that Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority. 98. If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in paragraph 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned (see, by analogy, judgment in Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 38).”