强迫失踪问题委员会审议比利时的报告（部分翻译）

2014年9月16日

 

强迫失踪问题委员会今天结束了对比利时提交的有关该国如何履行《保护所有人免遭强迫失踪国际公约》规定的首次报告的审议。

比利时刑法总顾问史蒂文·林堡（Steven Limbourg）在介绍报告时表示，与世界其他许多国家不同，比利时自二战以来没有任何在其领土上发生的强迫失踪案件。强迫失踪在国际法中被界定为一种反人类罪，而比利时法律也规定其为刑事犯罪。他概括了该国为被剥夺自由者提供的保障，包括适当的监督，以及对执法官员进行有关被剥夺自由者基本权利的培训等。他还提及了对受害者的援助问题，并指出比利时法律和做法在当事者可能受到伤害的情况下保证遵守不驱回原则。为了实现对公约的充分遵守，比利时仍需要将强迫失踪定为一种反人类罪，并与其他与该种罪行相关的侵犯行为区分开来。比利时正在为此撰写一份相关法律草案。

在互动对话期间，委员会专家对比利时一直以来落实公约的情况表示赞赏，称其为 压制军事司法和司法引渡方面合作的先锋。他们问到了比利时缺少国家人权机构和准备何时批准《禁止酷刑公约》关于访问拘留场所系统的任择议定书。讨论中还提出了  受害者获得保障和赔偿、监督拘留设施、培训执法官员和对肇事者判刑和惩罚等其他问题。讨论中还提到了刑事责任、军事司法和法庭、对外国人和寻求庇护者的行政拘留等问题。

担任比利时报告共同国别报告员的委员会成员马马杜·巴迪奥·卡马拉（Mamadou Badio Camara）在总结发言中表示，由于目前遇到困难，落实公约所需的数项法律草案被迫推迟出台的情况将被纳入考虑，但在比利时刑法中定义和载入作为反人类罪的强迫失踪罪是极有必要的。

担任比利时报告共同国别报告员的委员会成员埃马纽埃尔·德科（Emmanuel Decaux）表示，有必要设立一个综合的国家机构来监测被剥夺自由者的情况，在此方面，一个国家人权机构可能大有裨益。在任何可以发挥重要作用的方面利用非政府组织是十分重要的。从总体而言，比利时的方法和开展建设性对话的精神堪称榜样，委员会也将紧密关注其议会进展。

比利时常驻联合国日内瓦办事处代表贝特朗德·德·克隆布鲁格（Bertrand De Crombrugghe）对委员会的工作及其在研究比利时报告方面投入的时间表示感谢。比利时在改革其法律制度方面作出了重大努力，专家们提出的问题与比利时政府关注的方面不谋而合。

比利时代表团包括来自司法部，内政部，国防部，联邦警察，弗拉芒社群、弗拉芒地区、比利时和瓦隆地区法语社群和居住在日内瓦的瓦隆地区法语社群，以及比利时常驻联合国日内瓦办事处代表团的成员。

委员会将于今天下午三点在万国宫第十二会议室再次召开会议，届时将审议巴拉圭的初次报告（CED/C/PRY/1）。

报告

比利时的初次报告（CED/C/BEL/1）。

Presentation of the Report

BERTRAND DE CROMBRUGGHE, Permanent Representative of Belgium to the United Nations Office at Geneva, said Belgium was honoured to present its first report before the Committee on Enforced Disappearances, noting the voluntary commitments it had made to combat impunity as a follow-up to recommendations received at the Universal Periodic Review of the Human Rights Council. Mr. de Crombrugghe said the report had been drafted following a training seminar for police and authority enforcement officials from Belgium and other countries titled "The International Convention for the Protection of All Persons from Enforced Disappearance: How to report on its implementation?" The Report submitted to the Committee was the result of close collaboration with various public entities, many of which were represented in the delegation. It also included contributions from non-governmental organizations.

STEVEN LIMBOURG, General Counsellor for Penal Law and Deputy Head of the delegation, said unlike many other countries in the world, Belgium had not had any cases of enforced disappearances committed on its territory since the Second World War. The Belgian authorities were using the opportunity of this session to test the preventative system and its ability to repress the various infringements comprised under the crime of enforced disappearance as defined by the Convention. Belgium had examined all forms of deprivation of liberty listed in Belgian law, including administrative detention, arrest warrants in cases of flagrante delicto, preventative detention, judicial detention following sentencing, interim detention, and the placement of young people during operations by Belgium armed forces. The procedures of removal, extradition and adoption had also been reviewed.

Belgium legislation criminalised enforced disappearances, which amounted to crimes against humanity as defined by international law regardless whether the perpetrator was a public official or a private individual. Guarantees provided to people deprived of their liberty included detention in places that were subject to appropriate monitoring, clear information of the reason for the deprivation of liberty as well as their rights, the communication of their deprivation of liberty to their close relatives or other persons of their choice, and eventually to Consular authorities of the State they were nationals of.

Training on the fundamental rights for individuals deprived of liberty was provided to those in charge of their custody and handling, not only when they entered positions of responsibility, but throughout their career. Belgian law regulated the duty of obedience to superiors and banned the use of any illegal order such as an enforced disappearance, as a justification. It allowed an individual to denounce infringements to his or her rights in the context of deprivation of liberty, to file a complaint and to declare him or herself aggrieved or to bring a complaint and take part in the proceedings. It also obliged any public official to denounce any infringement brought to his or her attention.

Regarding assistance to victims, Mr. Limbourg said Belgian law and practise guaranteed the principle of non refoulement if there was a risk of harm to the person. It criminalised the removal of children and the tampering of their civil state. It also included guarantees in adoption procedures needed to exclude enforced disappearances and ensured that information on the origin of a child was kept and accessible. Belgian law was, in conclusion, in conformity with most requirements established by the Convention and contributed to promote its aims. Mr. Limbourg also informed the Committee about a new law adopted on 21 December 2013, which established a DNA database for missing persons.

In order to fully comply with the Convention, Belgium still needed to criminalise enforced disappearance as a crime against humanity that could be distinguished from other infringements linked to that offence. A draft law was being prepared and had been submitted for consideration to the Council of Judges, before being approved by the Council of Ministers, and then submitted to the State Council before going before Parliament. The Committee would be kept informed of the progress of the draft bill.

Questions from Committee Experts

EMMANUEL DÉCAUX, Committee Member acting as co-Country Rapporteur for the repot of Belgium, said Belgium’s contribution was impressive: it was a pioneer in the suppression of military justice and judicial cooperation in terms of judicial extradition. He asked how Belgium’s ratification of the Convention against Torture was advancing, following its signature in 2005.

When did Belgium envisage ratifying the Fourth Protocol to the Convention against Torture on a system of visits of detention places, so that there could be a national rights institution according to the Paris Principles? On that note, Mr. Décaux asked how Belgium would accomplish the establishment of a national human rights institution given its decentralized administration.

MAMADOU BADIO CAMARA, Committee Member acting as co-Country Rapporteur for the repot of Belgium, thanked Belgium for its presence and for producing the report within the required deadlines and including the relevant and comprehensive responses to the list of issues. Generally speaking, Belgium was entirely in line with the commitments to the international instruments it had ratified, he said. When the crime of enforced disappearance qualified as a crime against humanity, Belgian legislation provided for remedy and investigation, but when it was considered in an isolated manner, there was a draft bill that was to amend Belgian criminal law to make it a crime against humanity according to the Convention. He asked about the draft bill which would define the crime of enforced disappearance in the same terms as the Convention, as a crime against humanity, and the timeframe in which it would be passed into law.

Regarding sentencing and penalties, although the crime of enforced disappearance was not enshrined as an autonomous crime, there were substitute offences for the person who abducted a child, said Mr. Camara. There was an issue in terms of sentencing, since abduction, kidnapping or deprivation of freedom seemed to receive very "light" sentences which did not seem to take into account the "appropriateness" criteria set out by the Convention in terms of sentencing.

Concerning criminal responsibility, Mr. Camera said new legislation was needed, because in all instances, the perpetrators and accomplices were dealt with in the same way, regardless of whether there was an issue of hierarchy.

On the nature of the crime and the statute of limitations for response provided by the State, the crime of enforced disappearance was clearly criminalised, but would Belgian law establish the crime as an "on-going crime"? That was a prerogative of the Belgian legislator, but there should probably be a way to establish such nature in the interest of the victim. Had the statute of limitations been considered?

On detention, Mr. Camera recalled that the wording of the Convention began with the solemn declaration that no one shall be subjected to enforced disappearance, which had to be read in conjunction with articles that prohibited secret detention. He asked about the status of people held in administrative detention. The rights of asylum seekers or persons in an irregular situation were also raised – did their relatives or human rights defenders have access to the person? Could the person get in touch with his or her family?

An Expert said the Convention was of a protective nature, and its main articles provided for the monitoring of places of detention. Detention should take place in adequately supervised places. Which institutions provided for monitoring in places of detention and what resources did they have?

Military jurisdiction had at times of peace been lifted or removed, but was nonetheless enforced in times of war. In what situations did that happen? It was becoming increasingly difficult to establish if a State was in a state of war, especially when a State acted under a mandate of the North Atlantic Treaty Organization (NATO) mandate or that of other international organisations. In a time of war would the troops be under civil or military jurisdiction?

The Expert also asked how military tribunals were formed in Belgium and how their independence was ensured. In the Report, the disciplinary nature of tribunals seemed ambiguous. What about crimes committed by military personnel in relation to military force and discipline? How was military discipline enforced in times of war?

Responses by the Delegation

Regarding the Optional Protocol to the Convention against Torture and National Human Rights Institutions, a delegate said Belgian authorities could not provide additional information due to the delay of elections but did not have the intention of ratifying the Protocol, as stated in the response documents. The complex structure of the Belgian administration, as well as the independence of the justice system in Belgium (which in some cases had already given their consent to ratification) had suggested on some occasion to integrate the Protocol in a broader structure such as a National Human Rights Institution, whose creation was a priority in the country.

A delegate spoke about the legal course of the draft bill, explaining that it was not public yet, and was currently before the College of General Public Prosecutors. The College was expected to give its opinion soon, then the draft bill could be amended pending the establishment of a new Government. It was difficult to establish a timeframe, but it was hoped a new Government would be in place soon.

A delegate expressed surprise that sentences for some autonomous crimes and cases of deprivation of freedom were so mild but they had to be seen in context. The Belgian Parliament had passed such laws in the context of massive termination of employment of managers, not in the context of abductions. For offences such as torture, kidnapping, abduction and trafficking minimum sentences ran for 15 or up to 15 years, but there were also 30-year sentences that seemed more appropriate for aggravating circumstances.

Regarding criminal responsibility within a hierarchy, a delegate explained that the responsibility of a superior in the hierarchy was enshrined in Belgian criminal law. If the act of enforced disappearance was a crime against humanity, the responsibility of the person at the top would be engaged under Article 2 of the Belgian Criminal Code, while in the case of associated crimes under criminal law, it would come under a different section.

In terms of statute of limitations the Belgium system was, as explained in the Report and in the responses to the List of Issues, centralised and allowed for a statute of limitations according to the type of crime. For offences, contraventions and lighter crimes it distinguished whether it was an on-going crime or a crime which was "fixed in time".

Administrative detention was a detention following an administrative arrest. That measure was aimed at maintaining public order and was taken in very specific cases by police officials, rather than by legal authorities. It was used only in cases of "absolute necessity" for public order reasons, such as for a person who was obstructing freedom of movement, peace or who was preparing to commit an offence that could jeopardise peace or safety, or a person who had committed an offence that seriously jeopardised safety in the past. The maximum period for such an administrative detention was 12 hours, and if those hours were exceeded, the detention needed to be confirmed by a legal authority, thus modifying the status of the detention.

The detention of public officials needed to be confirmed and controlled by administrative police officers and brought to the awareness of the local city Governor. The arrest needed to be mentioned in the register of deprivation of freedom, which describes the length and specific circumstances of detention for further follow-up. Any person subject to deprivation of freedom needed in any case to be informed of the reason for such deprivation, of its length and of the procedure that would be instigated, either orally or in a written language in a language that the person understood, in a spirit of showing the person what his or her rights were.

Detention centres were monitored by different bodies as listed in the report. Preventative monitoring was carried out by an oversight commission to ensure proper respect of the rules in that regard and the conditions of detention centres. There was also a monitoring process established by a legislative chamber for the well-being of the prisoner population. Some monitoring bodies also carried out mediation between prison directors and detainees and drafted reports on the state of detainees accordingly.

Administrative detention of foreigners and asylum seekers only applied if they did not cooperate following a removal measure. Places of detention and accommodation were made public, and asylum seekers themselves received information in different formats and languages on the functioning of detention centres, as well as a contract explaining the conditions of detention. United Nations entities such as the Committee against Torture and the United Nations Refugee Agency were able to monitor and access such centres for a predefined period arranged upon request. Moreover, 25 non-governmental organizations were also allowed to access the centres and conduct indirect monitoring.

Belgium's understanding of the "state of war" was explained by a delegate who said that, according to the Belgian Constitution, the international operations to which Belgium participated did not imply such state. A civil jurisdiction was competent for offences committed by Belgian military troops sent to Afghanistan. Regarding the applicability of military jurisdiction in wartime, they were mixed composition tribunals with judges acting in their civil capacity, military consultants drawn by lots and a prosecutor who was a civil magistrate. The independency of such tribunals was guaranteed, he added.

Follow-up questions from Committee Experts

Did Belgium legislation define enforced disappearance as a crime against humanity, an Expert asked. Were non-governmental organizations to be consulted on the draft law on the criminalization of enforced disappearances as an autonomous offence, an Expert asked. Another wondered about the applicability of the principle of double criminality.

The Belgian Criminal Code had a system in place to protect all persons who participated in the criminal investigations but such protection was only given to witnesses. The Convention, however, extended such protection to complainants, witnesses, family members of the person, lawyers and people who participated in the investigation. Did Belgium foresee to expand the category of witnesses?

All measures seemed to have been taken to ensure the impartiality of investigations, but what if a police officer was suspected of being involved in a case of enforced disappearance? Was he automatically suspended when the investigation started, or only when the investigation had established its complicity? When Belgium signed a bilateral treaty on extradition, did it plan to include provisions on the crime of enforced disappearance?

Responses by the Delegation

With regard to the Rome Statute in Belgian legislation, the Convention defined generalised or systematic practises as crimes against humanity, said a delegate, and Belgian authorities had interpreted that as a declarative provision, and did not intend to modify its domestic provisions to avoid a discord of definition that might lead to conflict in legal proceedings.

Regarding the protection of persons other than witnesses, a delegate said they were protected by different provisions since their role was different. There were limits to family members but the category under Belgian law was broader than affecting only witnesses, for instance children benefitted from protection. Bilateral treaties signed by Belgium provide for a minimum penalty of a year, without distinction, for all types of infringements. On transparency during the drafting of the draft law and possible participation of non-governmental organizations, a delegate said it was difficult to envisage given the lack of a national human rights institution. Once the draft reached Parliament, and depending upon Members of Parliament, non-governmental organizations may be able to participate by introducing amendments.

All individuals were innocent in Belgium until proven guilty, and that also went for police officers alleged to be involved in cases of enforced disappearances. In terms of legal authorities, the code used by the police stated that any police officer would be suspended from involvement in an investigation, even if indeed there could be breaches to this rule. If suspicion arose, staff members had to bring that to the attention of legal authorities. The police service had an internal disciplinary procedure which included measures such as removal from the officer in question to another service, changing their tasks or reassigning them. Provisional suspension measures were only used as only last-ditch provision for very serious, extreme and urgent cases, at any stage of the procedure and for a period of four months by a competent disciplinary authority. Ultimately, the aim was to allow the return of the official to service.

A delegate confirmed that, pursuant to international law, Heads of State and Ministries, and other people with recognized immunities were excluded from prosecution.

Questions by the Experts

An Expert asked about Belgium’s application of non-refoulement, and whether there had been any cases of missing information in the detention registries. Belgium had not answered the question on the definition of ’victim’ said an Expert, also asking what resources were available to support victims, including professional support.

Could Belgium indicate whether the German community had the same support for victims and supporters of victims as the Flemish communities and was that support sufficient? Were there restrictions in the access by guardians and representatives to information about children and what happened in the case of adoption of children?

An Expert asked about the scope, mandate and workload of the Belgian commission for the prevention of torture. Another asked for further clarification on what the legal definition of a victim of enforced disappearances implied, as it could be taken broadly and comprise any person harmed materially or psychologically by a situation of enforced disappearance.

In the case of legal and police detention, for how long could communication with family members could be limited? Were there any statistics on that and how often was it applied by judges? Could the communication of the person in deprivation of liberty be restricted to his or her lawyer, or did the detainee have at any time access to a legal counsellor, especially in the case of children? Was the transferral of a detainee automatically notified to family members?

What was the regime for those deprived of freedom for psychiatric reasons, was there judicial oversight and periodic review procedures on the need to prolong such interment? If a limitation and monitoring of the communication of the person deprived of freedom was agreed, was this communicated to the person, or was this carried out, legally, but secretly?

Responses from the Delegation

The Germanic and Flemish communities had given the green light to the ratification of the Optional Protocol to the Convention against Torture, the Walloon community had also done so in 2010. The Criminal Code established that if there were accumulated cases of torture and enforced disappearance, the highest penalty was applied. Belgian law had reduced the scope of the broad law on universal jurisdiction adopted in 2003, which had caused a series of issues, and replaced it through a broader definition, taking into consideration whether the victim was or not Belgian, refugee or not, or whether it had legally resided in Belgium for less than three years.

The extradition of foreigners was carried out by the Council of State through a ministerial procedure that could be appealed within 60 days. During that time it was possible to suspend the warrant or to refer the appeal that might lead to suspension. Belgium was committed to not extraditing anyone before 60 days following the notification of the extradition warrant to the person.

There was a register of deprivation of freedom, which recorded any deferment and reasons for it, and there were guarantees to ensure the possibility for an appeal. The inspectorate of police could take action as appropriate, but administrative detention could not exceed 12 hours anyway. On the legal obligation to maintain a register, the law was enforced and regular content was formally kept in registers by the police, said a delegate.

Appeals by the detainee on communications restrictions were possible immediately after detention. The judge registered in the register of prisons the reasons for detention and the contact details of specific persons the person was allowed to contact, but there was never a generalised permission for communications. The family, as well as counsellors and lawyers, could be contacted at any time. For a person in preventative detention, restrictions on detention could only last for three days after the last hearing, but it was more generally dealt with on a case-by-case basis, and such information was available to all monitoring bodies. The transfer of detainees was always recorded on registers, there was no automatic communication to the family, but it was granted to the extent of the wish of the detainee.

With regard with mental health persons deprived of liberty, there were social defence commissioners and information was provided to detainees regarding their rights. Their mail could be monitored in order to check for and remove illicit objects sent or received, but in both cases this was communicated to the detainee.

Information for detainees was available on the website of the Ministry of Justice and at police stations, in 54 languages, confirmed a delegate. Prevention of torture, as enshrined in a Convention of the Council of Europe, granted access for two weeks at every four-year monitoring cycle to all places of detention, such as prisons, detention centres, police cells and hospitals, and reports were produced accordingly. There was a solid monitoring system in place.

Police forces received appropriate training to prevent their involvement in enforced disappearances and arrests, although there was no specific training on enforced disappearances. There was, however, police training on deprivation of liberty and protection of persons, assessed regularly by internal and external bodies and based on the existing needs and involving the assessment of trainees too. It was responsibility of the independent police inspection services police training.

A delegate told the Committee it would answer the questions regarding the German and Flemish communities in writing following today’s dialogue. Regarding the French-speaking community (Wallonia), there were 16 certified, private expert services providing assistance, one for each judicial arrondissement. Their three main functions were to coordinate, counsel and provide psychologists services, as well as training for young people, since the pedagogical component was important. Information about their staffing and funding was not available, but these provided medical and psychiatric services related to the rights and specific needs of victims.

There were no restrictions on the access to information of the origins of people who had been adopted. Ultimately the idea was to have a harmonised IT system to make information available.

Regarding the application of non-refoulement, a delegate said Belgian law was recently reformed following changes in European case law. When a fundamental right was violated the judge had to take into account all evidence made available and intervene in the event of a possible violation of a fundamental right, not once the decision for removal had been taken.

Follow-up questions by Experts

Experts asked about conflicting requirements regarding the confidentiality of detention records, such as medical information, even when such information was necessary. They also asked about financial assistance or compensation to victims of crimes committed abroad, including adoptions.

Responses by the Delegation

The Inspectorate of Police carried out regular inspections to ensure that records were kept systematically and no complaints had been filed in that regard. Regarding medical records, there was a need to strike a balance between the private life of the person and the needs of the record: the priority was given to confidentiality, even if the medical record per se was kept separate and could be consulted if appropriate. A medical record could be consulted if upon arrival the person showed signs of ill-treatment by the police, a delegate added.

A member of the delegation said existing provisions on lawful victim assistance related to any foreigner who suffered an offence on Belgian territory. Compensation could be requested when the perpetrator was insolvent, but it would be the perpetrator's responsibility to compensate the victim, even if, admittedly, some perpetrators were not solvent and that was sometimes not possible.

Concluding Remarks