In Belgium, four out of ten detainees are incarcerated without having been tried. Officially exceptional, preventive detention has become a judicial routine which often strikes the most vulnerable.
Each year, people imprisoned before judgment are finally released, often after weeks or months of confinement without solid evidence. “This is a fairly rare case, but that exists. We must fight to avoid the preventive incarceration of our customers, ”admits Gökhan Bascivan, a criminal lawyer. “In 99.9% of cases,” he adds, “when one of my clients is targeted by an arrest warrant, he passes in this imprisonment regime. This is where a legal battle is often lost in advance in advance. It is very difficult to get it out, even when the evidence of the accusation is low.»
The Preventive detentionas conceived by law, must be exceptional, used only when the freedom of the suspect presents a serious risk of leakage, recurrence or obstacle to the investigation. But in practice, it imposes itself as an automation.
In 2024, 40.1 % of people detained in Belgium were without convictionaccording to the latest European data. A rate that places the country second in the EU, just behind Malta.
Damien Scalia, professor of criminal law at ULB, recalls that “Legally, prisoners imprisoned preventively are all innocent until proven otherwise. The presumption of innocence applies, since there has not yet been a judgment ”.
Precise criteria with blurred justifications
Belgian legislation provides for clear tags. Article 16 of the law of July 20, 1990 stipulates that an arrest warrant can only be issued “in cases of strict necessity for public security.” Judges must rely on a rigorous risk assessment.
On paper, the rule is clear. In fact, it fades behind much more flexible practices. A report published in 2024 by the National Institute of Criminalist and Criminology (Incc) highlights this lag. Out of 82 stop mandates analyzed, 62% invoke a risk of leakage. But this reason is only used alone in 2.4% of cases. In 44% of the files, the judges accumulate three criteria while only one is legally enough.
This mechanical recourse with several reasons worries researchers. According to the incc, it does not reflect an individualized analysis, on a case -by -case basis, but “a legal protection reflex intended to prevent disputes».
The formulas used are often stereotypical and not very detailed. The absence of a fixed home, economic precariousness or foreign nationality become generic reasons for confinement. However, several European case laws affirm it without ambiguity: “Neither the foreign origin nor the lack of national links can, by themselves, demonstrate a risk of real and concrete leave”.
This trivialization of the exception questions Damien Scalia. “The investigating judge has an important margin of appreciation. Belgian and European texts allow interpretations that vary according to the prejudices of the magistrate. Over time, preventive detention has become routine. We don’t even question her anymore. ”
For his part, the lawyer Gökhan Bascivan notes this drift daily. He notes that the targeted profiles are the same. The criteria of social vulnerability or foreign origins often appear in the files of its customers. “This form of penalty is easy and quick to set up. And we end up with innocent in prison, which must be said, present common ethnic or social characteristics, often subject to discrimination. ”
The incc report confirms that the alternatives provided by law are almost never used. Liberation under conditions, house arrest, deposit … These options are only examined when the risk of leakage is dismissed, which corresponds to 32% of cases.
A false good idea?
Once the preventive detention has been decided, it becomes difficult to get out of it. Calling is theoretically possible, but in practice, the judges who take up the file almost always confirm the initial decision.
For Damien Scalia, this phenomenon creates an inertia effect: “There is solidarity between judges. When one decides the preventive confinement, the others hesitate to question this decision. This inertia has consequences on the final pronouncement of the penalties. If a person remains six months in preventive detention for a case that should have asserted two, the judges tend to align the sentence over the already purged duration. ”
The teacher believes that This logic aims to avoid compensation requests. “What is deeply shocking,” he says is that the person should have been free for a long time, but that he remains in prison for reasons of administrative arbitration or by a fear of judges to go against their colleagues. “
Added to this is the confusion between defendants and convicted. At Saint-Gilles prison, for example, people waiting for judgment are incarcerated with those who serve a short penalty. A situation regularly denounced by human rights organizations and the incc.
Damien Scalia explains that these imprisonment conditions still strengthen inequalities: “The defendants do not have access to paid work or training. They cannot benefit from exit permissions or prison leave. But as a prisoner in preventive detention, you will have the right to receive visits every day. ”
The profile of the prisoners targeted is not random. A white person with a university journey or a stable financial situation is statistically less likely to end up in preventive detention. The measurement primarily affects the most precarious. “This system generates flagrant discrimination and many times denounced,” said Damien Scalia as Gökhan Bascivan.
Saturated justice, a system at the end
The use of preventive detention is also partly explained by the saturation of the judicial system. The number of magistrates per capita is one of the weakest in Europe (13.23 per 100,000 inhabitants). Delays accumulate and preventive becomes a management tool. A waiting solution in the face of the structural inability to judge within reasonable deadlines.
«Preventive detention is a necessary regimerecognizes Gökhan Bascan. But it must remain exceptional. Today, it has become the rule. When you appeal to contest the imprisonment, in the majority of cases, the person remains locked up. In eight years of trade, I have never seen a compensated customer for an abuse of imprisonment, even when he is deemed innocent at the end of his trial.»
If the rate of preventive detentions is raised in Belgium more than elsewhere and nothing has advanced for more than 30 years, “it is for political reasons,” says Damien Scalia. There is the fear of being perceived as lax by opinion. This blocks any reform. There is no political will to question this system. I think it’s an electoral calculation. Voters would have the impression that politics want to release offenders. But they are not offenders. They are innocent as long as they are not judged. ”
