Overcrowding in Belgian prisons is an old problem. It is a problem with which the Belgian government has been struggling since the 1980s. However, fruitful solutions have not yet been found, as evidenced by the rising – but above all harrowing – figures. Today, no fewer than 148 inmates sleep on a mattress on the floor.

A lack of infrastructure and capacity means that inmates have to share an already small prison cell, intended for one person, with two or three people. If they are lucky through the use of bunk beds, but also through mattresses on the floor. The current pandemic is exacerbating the situation considerably: several prisons have to go into quarantine, with the result that prisoners are locked up in their prison cells for weeks on end. In addition to frustrations between inmates and inmates and prison staff, these conditions also lead to significant lack of privacy, violation of security standards, reduced social activities and limited access to welfare services.

The fact that overcrowding in Belgian prisons is an old problem is evident from the various convictions that the Belgian state has to deal with. Both our own courts and the European Court of Human Rights (ECtHR) condemned our country because of the inhumane conditions in the prisons. After all, the circumstances are in stark contrast to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment. Although detention in itself is not contrary to Article 3 of the ECHR, detention is when its modalities are incompatible with respect for human dignity and from the moment when the suffering and humiliation go beyond what is strictly necessary.

The ECtHR takes into account several elements to determine a violation of Article 3 ECHR: every detainee must have his or her own (sleeping) space of approximately 3 m², whereby one must be able to move freely between the furniture. Furthermore, the court also takes into account hygienic conditions and the possibility to participate in activities outside the prison cell and in the open air.

A violation of Article 3 ECHR is usually the result of a combination of circumstances, in which prison overcrowding is a constitutive element. This is all the more true in the context of a pandemic – such as the current COVID-19 outbreak – where the risk of contamination endangers the health and life of the entire prison population. It is therefore up to the state to guarantee humane detention conditions to detainees.

It is undeniable that in the current circumstances there is an even greater obligation on states to prevent human rights violations by detainees. The overcrowding in Belgian prisons must be tackled quickly and must be structurally avoided. The fundamental rights and freedoms guaranteed by the ECHR do not disappear at the prison gate: detainees must continue to be assured of their fundamental rights. After all, they may not be subjected to inhuman or degrading conditions that are contrary to Article 3 ECHR.

It is therefore necessary for the Belgian government to ensure that it does not incur any additional convictions.