How much jail time do you have to serve in Belgium?

From September 2023: new policy for short prison sentences

When it comes to sentencing in Belgium, there are a lot of questions and ambiguities. After all, when a judge sentences someone to effective prison time, that person does not always actually have to go to jail.

For years, short prison sentences (less than three years) have not been enforced in order to combat overcrowding in Belgian prisons.

Concretely, a person sentenced to less than three years imprisonment was not locked up for one day in prison.

It was the prison director who had the decision-making power to do so, without the intervention of a (sentencing) judge.

Although this measure aimed to reduce the population within prisons, the number of inmates only continued to increase. Moreover, this approach created a great sense of impunity.

The legislature therefore intervened: from now on, even short-term custodial sentences should be effectively enforced.

On Sept. 1, 2022, the new External Legal Status Act (WERP) came into effect. Since then, effective prison sentences between two and three years have also been effectively executed.

From Sept. 1, 2023, prison sentences shorter than two years will also follow.

Please note: the new rules only apply to you if your prison sentences were all handed down after the law came into effect

The side note to this law is that the capacity problem in prisons has not been solved at all to date while this law only causes an increase in the number of inmates….

However, the opening of a new prison in Haren and Dendermonde will allow this capacity problem to be solved. In addition, detention houses will be used for short-term detainees. These are small-scale facilities where residents live in small groups (20 to 60 persons) and thus work actively on their reintegration and independence under supervision. In such a detention house, the same rules apply as in prison, but the residents are allowed to move around freely in the house.

Below we give an overview of the types of detention houses in Belgium and how they are filled.

We are happy to assist you in providing advice for your specific personal scenario.

What is an effective prison sentence?

With an ‘effective’ prison sentence, the convicted person must basically serve his sentence time in prison. The judge may also issue a “suspended” prison sentence. This means that although a prison sentence is handed down, it is not carried out on the condition of not committing new offenses (prison sentence with ordinary deferment) or complying with the conditions imposed by the judge (prison sentence with probation deferment).

That’s the theory. In practice, not everyone with an effective conviction actually ends up in prison.

Confusing and somewhat contradictory, indeed….

Which brings us to the next question.

How much prison time do you have to serve in Belgium now?

A prison sentence of more than three years

With a long prison sentence (more than 3 years), the convicted person – even before the change in the law – must always spend a minimum period in the cell. This is at least 1/3 or 2/3 (for repeat offenders) of the sentence time.

Already six months (6 months) before, one is eligible for limited detention or electronic monitoring. After the minimum period, one can apply to the sentencing court for early release or an ankle bracelet.

The Criminal Execution Court rules on the specific manner of execution of sentences in Belgium. This court can determine, and over time, also change the way a person must serve a pronounced sentence. The best-known examples are: having part of the sentence served under “house arrest” (electronic surveillance or an ankle bracelet) or “early release under strict conditions.

Of course, the court does not simply modify a sentence and certainly not for every convict who applies for it. Statutory criteria are taken into account for each application. Thus, not every convict is released just because they have served 1/3 (respectively 2/3) of the sentence.

What does the sentencing court take into account for early release?

Not every convict is released just because they have served 1/3 (respectively 2/3) of the sentence. The sentencing court does not simply change a sentence and certainly not for every convict who applies for it. Each request is made taking into account criteria established by law to verify that there are no counter-indications as far as the convict is concerned.

Those criteria are:

• absence of prospects for social rehabilitation,
• risk of committing new crimes,
• the risk of harassing the victims and his attitude towards them and
• the efforts made by the convict to compensate the victims

A prison sentence of up to three years

Previously, convicts with a short prison sentence (up to 3 years) did not spend a day in jail. After all, a prison sentence of three years or less could automatically be converted to a “prison sentence under electronic supervision.”

Under six months, you usually remained unpunished altogether.

Since Sept. 1, 2022, this has changed: sentences between two and three years have also been effectively enforced since then.

From September 1, 2023, sentences shorter than two years will now also follow.

Whereas previously the prison administration itself made a decision regarding the execution of prison sentences, since September 1, 2022, a single-seat sentence execution judge (SUR) is competent to do so.

Those sentenced to a prison term of up to and including two years can ask to serve all or part of that sentence outside prison, through so-called sentence execution modalities.

Specifically, these are: limited detention, electronic surveillance, conditional release and provisional release with a view to removal from the territory or surrender.

The sentenced person applies for the sentence execution modality himself and it is the sentence execution judge who decides on it.

For prison sentences of up to three years, the following deadlines apply:

• limited detention or electronic surveillance: application possible from six months before 1/3 of the sentence is served,
• conditional and provisional release: possible from the moment a third of the sentence has been served.

Concretely: A person sentenced to 28 months is eligible for conditional release (1/3 of the sentence) after 9 months and 10 days.

Electronic monitoring in that case is possible after 3 months and 10 days (1/3 of the sentence reduced by 6 months).

That initial time will thus be spent in custody. Only after that can electronic supervision be granted by the sentencing judge.

IMPORTANT: if sentenced to less than 18 months, one can thus be immediately eligible for an ankle bracelet.

The sentencing judge -just like the SURB- also takes into account a number of criteria in his decision, such as: the personality of the offender, the chances of social reintegration, whether there is a risk of flight, and the behavior the offender exhibits toward the victim.

With the various legislative changes, the question arises as to who is covered by which legislation. Three possible scenarios are conceivable here.

1. A conviction to a prison term of three years or less that occurred before Sept. 1, 2022. Naturally, this falls under the old legislation, so the prison itself decides on the execution of the sentence: the period will usually be served under electronic surveillance.

For the situation after Sept. 1, 2022, it is important to distinguish between final convictions of more and less than two years.

2. A sentence of imprisonment of less than two years after Sept. 1, 2022, and before Sept. 1, 2023. In this scenario, the old legislation continues to apply. Thus, the consequence is that the  convicted person is likely to serve this sentence under electronic supervision.

3. A sentence of two to three years imprisonment after September 1, 2022 and before September 1, 2023. In this case, the new legislation applies

As a result, the prison sentence is no longer automatically converted to release or electronic monitoring. Taking into account a number of criteria, such as: the personality of the offender, the chances of social reintegration, whether there is a risk of flight and the behavior the convict exhibits towards the victim, the judge can effectively send the convict to prison.

For all convictions after Sept. 1, 2023, the new legislation will, of course, apply.

If you have been sentenced to multiple prison terms and at different times, matters become more complex.

We are happy to assist you in providing advice for your specific personal scenario.