Sentenced to a prison term of 6 months to 3 years?
How is your sentence carried out when you have been sentenced to one or more prison sentences totaling between 6 months and 3 years? There are two situations to distinguish:
1. If your total sentence is more than 2 years up to a maximum of 3 years, the new rules apply, provided that all your prison sentences have been pronounced after August 31, 2022.
2. If your total sentence duration is between 6 months (inclusive) and 2 years (inclusive), the new rules only apply to you if all your prison sentences have been pronounced after August 31, 2023. If the new rules are not yet applicable to you, you fall under the rules of the ministerial circulars. In that case, you can always request to be subject to the new rules.
Summary new rules
When you are sentenced to a prison sentence, you must serve that sentence in prison. However, there are options to carry out your sentence entirely or partially outside of prison, known as 'sentence execution modalities.' You must apply for these modalities yourself, and the sentence execution judge makes the final decision.
In any case, you must always first go to prison after receiving your prison letter. The prison will check whether you are eligible for such an application. In some cases, you may leave the prison pending the decision of the sentence execution judge regarding your application.
1. You have been convicted, now what?
After your conviction, you will receive a letter from the public prosecutor's office, the so-called 'prison letter.' This letter states that you must report to a specific prison within 5 working days of receiving this prison letter (not during weekends and public holidays). It is very important to do this immediately, as failing to do so will result in the police arresting you. In that case, you will have to wait for the decision on a possible application for a sentence execution modality in prison.
2. What are the sentence execution modalities?
It is possible to carry out your prison sentence entirely or partially outside of prison under certain conditions, for example, at home. Depending on the duration of your sentence, this can sometimes take place immediately or after you have served part of your sentence. There are four sentence execution modalities:
A. Limited detention: This means that you are allowed to leave the prison daily for a certain time, with a maximum of 16 hours. This can be to work, attend training, or for family reasons. Normally, you only stay in prison in the evenings and at night. During limited detention, you can also get penal leave, which means extra time to spend with your family or to further prepare your rehabilitation.
B. Electronic monitoring: Electronic monitoring: Electronic monitoring means that you are required to stay at a specific address, which can be your home or another address. You must also adhere to a specific schedule, all of which is electronically monitored. During electronic monitoring, you can work, look for work, apply for jobs, attend training or therapy, etc. You can also enjoy penal leave during electronic monitoring.
C. Conditional release: This means that you are released before the end of your sentence, but there are conditions attached to it that you must adhere to during a probation period set by the sentence execution judge.
D. Provisional release for removal or surrender: Provisional release with a view to removal or surrender: Provisional release with a view to removal from the territory means that you are released before the end of your sentence and must leave the country. You are given conditions that you must adhere to during a probation period determined by the sentence execution judge. If you do not have the right to reside in Belgium, this probation period will take place in another country. Provisional release with a view to surrender means that you are released before the end of your sentence so that you can be surrendered to the country that has issued a European or international arrest warrant for you.
3. When are you eligible for these sentence execution modalities?
You are eligible for conditional or provisional release after you have served at least 1/3 of your sentence, both in prison and under electronic monitoring. Six months earlier, you may be eligible for limited detention or electronic monitoring.
Here are some examples to clarify this:
Example 1: You have been sentenced to a prison term of 15 months.
– After 5 months of detention (1/3 of 15 months), the sentence execution judge can grant you conditional or provisional release.
– You are immediately eligible for limited detention or electronic monitoring (1/3 of 15 months, minus 6 months).
Example 2: You have been sentenced to a prison term of 27 months.
– After 9 months of detention (1/3 of 27 months), the sentence execution judge can grant you conditional or provisional release.
– After 3 months of detention (1/3 of 27 months, minus 6 months), the sentence execution judge can grant you limited detention or electronic monitoring.
Example 3: You have been sentenced to a prison term of 27 months and have already undergone 3 months of provisional detention.
– After 6 months of detention (1/3 of 27 months = 9 months, minus 3 months of provisional detention), the sentence execution judge can grant you conditional or provisional release.
– You are immediately eligible for limited detention or electronic monitoring (1/3 of 27 months, minus 3 months, minus 6 months).
4. Are there other conditions for granting?
Yes, the sentence execution judge will examine whether there are indications that argue against granting the requested sentence execution modality. These indications relate to:
– Your ability to provide for your own needs (this indication does not apply to limited detention because your main residence is the prison, nor to provisional release with a view to removal or surrender).
– The risk of posing a serious threat to the physical integrity of others.
– The risk of intimidating your victims.
– Your attitude towards your victims (this indication does not apply to provisional release with a view to removal or surrender).
– Your efforts to compensate the civil party(ies). If the sentence execution judge believes that there are indications and that these cannot be addressed by imposing other special conditions, he will refuse the requested sentence execution modality.
Sentenced to a prison term of more than three years?
For a longer prison sentence (longer than 3 years), the convicted person must always spend a minimum time in prison, even before the legal amendment. This minimum time is at least 1/3 of the sentence duration, and for repeat offenders, it's even 2/3 of the sentence duration.
Six months before the minimum time is reached, one is eligible for limited detention or electronic surveillance. After meeting the minimum period, one can submit a request to the sentence enforcement court for early release or electronic monitoring with an ankle bracelet.
The sentence enforcement court is responsible for assessing the concrete execution of sentences in Belgium. This court has the authority to determine how someone should undergo a given sentence and can modify this over time. Some examples of such changes include: serving part of the sentence under 'house arrest' (electronic surveillance or with an ankle bracelet) or 'early release under strict conditions'.
Each application uses legally established criteria. Therefore, not every convict is automatically released after serving 1/3 (or 2/3 for repeat offenders) of their sentence.
What factors does the sentence enforcement court consider for early release? These criteria include: the lack of perspectives for social rehabilitation; the risk of committing new criminal offenses; the risk of harassing the victims and the attitude of the convict towards them; the efforts of the convict to compensate the victims.