The execution of short prison sentences in practice: an administrative maze?

Written by

Sarah Mondelaers

Expertise

Criminal law and liabilities

Publication

3 March 2023

On 1 September 2022, the new Act on External Legal Status (WERP) entered into force — after repeated postponements. Previously, anyone sentenced to imprisonment of up to and including 3 years fell under the authority of the prison governor. Short-term convicted offenders could then systematically serve their sentence under electronic monitoring (Art. 23, §1, 2° of the Act of 17 May 2006). Moreover, sentences of less than six months usually went entirely unenforced.

Zoals aangehaald door mr. Tom Cielen in onze nieuwsbrief van 10 februari 2023, is het vanaf heden de strafuitvoeringsrechter (SUR) en niet langer de gevangenisdirecteur die beslist over de korte gevangenisstraffen tussen de twee en drie jaar, waardoor deze niet meer systematisch worden uitgezeten onder elektronisch toezicht. 

This means that convicted persons serving short prison sentences between two and three years must now also complete more administrative formalities in order to obtain sentence enforcement arrangements. This newsletter therefore aims to serve as a guide to all these administrative requirements. 

How will this work in practice?

When someone is sentenced under the new regime to a prison term of two to three years, he/she will, following that decision, receive a letter from the Public Prosecutor’s Office ordering him/her to report to the prison registry within five working days. The convicted person must therefore in any event first report to the prison. 

After this, it is possible, at certain times and subject to certain conditions, to apply for various sentence enforcement arrangements, such as conditional release, electronic monitoring, and limited detention.

  • Conditional release is a method of serving a custodial sentence in which the convicted person serves the imposed sentence in full outside prison, provided that they comply with the conditions imposed during a specified probation period. 
  • Electronic monitoring means that the convicted person serves all or part of their custodial sentence outside prison, whereby he/she is required to reside at a specific address and comply with a set schedule. 
  • Limited detention means that the detainee serves their sentence in prison, but is allowed to leave the prison daily for a certain period of time, with a maximum duration of 16 hours. This may be granted to attend to professional, educational or family interests. 

Time and eligibility conditions

Before conditional release can be requested, in principle one third of the sentence must have been served. In the event of reoffending, this may increase to at least one half. 

However, six months before this date, the detainee may already be eligible for electronic monitoring or limited detention. If the detainee has been held in pre-trial detention or is immediately eligible for a sentence under electronic monitoring, it is therefore possible that he/she may also, under the new legislation, be allowed to go home immediately pending an electronic tag.

In addition to these time-related conditions, other eligibility requirements must also be met. The SUR examines whether there are any contraindications to granting the requested sentence enforcement modality, relating to the following elements: 

  • The fact that the detainee is unable to provide for their own needs;
  • Posing a serious risk to the physical integrity of third parties; 
  • The detainee’s attitude towards the victims; 
  • The efforts made to compensate the civil party or parties.  

Administrative requirements

When the above-mentioned time and eligibility conditions for applying for a specific sentence enforcement modality have been met, the procedure can be continued in two ways:

Either, after registration, it can be continued from home pending a decision, or, if this is not possible, the detainee must start the procedure from prison and also await the decision there. 

Application procedure allowing immediate release from prison 

If the convicted person already meets the time conditions at the time of registration, he/she may immediately submit an application and leave prison while awaiting the decision. 

The procedure for applying for electronic monitoring and/or limited detention outside prison takes place in the following steps: 

Submit the application to the prison registry

As soon as the application has been submitted, the further enforcement of the prison sentence is automatically suspended and the convicted person may leave prison. From now on, the application can also be submitted online via the new Just-on-web portal. 

At the time of the application, the convicted person receives the following documents: 

  • A copy of the application;
  • The information form (see step 2);
  • The certificate “immediate suspension of the enforcement of the sentence”;
  • A document with additional information about the further procedure.
  • Submit the information form to the registry of the Sentence Enforcement Court (SURB)

Within 15 working days after leaving prison, the information form must be submitted to the registry of the SURB. This can again be done both physically and online via Just-on-web. 

If the convicted person wishes to apply for electronic monitoring , the following information must in any case be provided:  

  • What the convicted person intends to do during electronic monitoring; 
  • Where the convicted person will reside, as well as who will live with him/her at this address. In addition, a declaration of consent is requested from all adult cohabitants.  

If the convicted person wishes to apply for limited detention, the following information must in any case be provided:

  • What the convicted person will do at the time he/she is allowed to leave the prison;
  • Why presence outside the prison is required for this activity; 
  • Where the convicted person will spend the penitentiary leave.
  • Assessment by the judge

Ultimately, the SUR makes a decision on the basis of the submitted file.

If the judge considers it necessary, the convicted person may still be heard at a hearing before the decision is taken. 

Application procedure during detention in prison 

If the convicted person is not eligible to complete the application from outside the prison, the procedure must always be awaited in full in prison. 

This is automatically the case, first of all, when the time-related and award conditions have not been met, but also when the criminal record mentions a conviction for sexual or terrorist offences or there are signs of violent extremism, the convicted person must remain in prison pending the decision. In addition, it is possible that the convicted person is not yet allowed to leave the prison because of the danger to the physical or psychological integrity of others, the risk of evading the sentence, or because another sentence remains outstanding.

The application procedure from prison is as follows: 

  • First, the prison director informs the detainee as soon as he/she can submit an application for the granting of a sentence enforcement modality. 
  • A written application can then be submitted to the prison registry. This is discussed together with the prison director, after which they draw up an opinion on whether to grant or refuse the measure. If the Public Prosecutor’s Office deems it necessary, it may also issue an opinion. 
  • Finally, the SUR examines the application in a (usually) written procedure and makes a decision. 

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If you have any further questions about the execution of sentences, you can always contact our specialists in criminal law. Reyns Advocaten is happy to assist you with advice and practical support.