Implementation of short prison sentences as of Sept. 1, 2023

Implementation of short prison sentences as of Sept. 1, 2023

The sentencing landscape in recent years has been dominated by the implementation of prison sentences of up to 3 years. The External Legal Status Act had provided for the execution of these "short" prison sentences since its enactment in 2006, but due to a lack of capacity, implementation in practice took some time. After the implementation of custodial sentences of more than 2 years to 3 years already started on September 1, 2022, it is the turn of custodial sentences of 6 months to 2 years since September 1, 2023.

What custodial sentences have been carried out since Sept. 1, 2023?

Whereas previously custodial sentences of 2 years or less were generally carried out through electronic monitoring, the situation has changed radically since Sept. 1, 2023.

The custodial sentences of 6 months to 2 years that as of September 1, 2023 pronounced by judgment or decree, will be implemented in accordance with the provisions of the External Legal Status Act. Thus, it is the date of the court ruling that determines whether or not the new regulations apply.

To determine whether it is a custodial sentence of 6 months to 2 years, the executable portion is considered. Example: A prison sentence of 12 months, of which 8 months are imposed with a stay of execution, has an executable portion of 4 months so the regime in effect from Sept. 1, 2023, will not apply.

When a custodial sentence from before Sept. 1, 2023, and a custodial sentence from after Sept. 1, 2023, are to be executed together, the situation becomes somewhat more complicated and tailored advice is appropriate.

How will the sentencing process work?

When a person is sentenced to a custodial sentence, that person will receive a jail bill. The convicted person must then present himself to the prison within 5 days.

With custodial sentences of 6 months to 2 years, as with custodial sentences of between 2 and 3 years, it will be the sentencing judge who decides how the sentence execution will be concretely shaped. This is done at the request of the sentenced person and when the legal conditions are met (Article 28 External Legal Status Act).

The sentencing modalities that the sentencing judge may grant concern:

• Restricted detention or electronic monitoring: 6 months prior to the date from which parole may be granted
• Conditional release: award possible after serving 1/3 of sentence
• Provisional release with a view to expulsion or surrender: award possible after serving 1/3 of sentence

The procedure regarding the application of certain sentencing modalities can proceed in two ways.

1) The procedure from freedom

To freely await the decision of the sentencing judge on the sentencing modalities requested by the convicted person, a number of conditions must be cumulatively fulfilled:

• Spontaneous and timely self-offering in prison after receiving prison bill
• Immediately be in the time conditions for electronic monitoring or limited detention (sentenced to an effective prison term of up to 18 months)
• Have not been convicted of sexual or terrorist crimes
• Show no signs of violent extremism

The offender must submit his request for electronic monitoring or limited detention in writing to the clerk of the prison.

The clerk of the prison shall transmit the convict's request to the clerk of the sentencing court within 24 hours.

The filing of this request results in an automatic immediate suspension of the execution of the sentence pending the decision of the sentencing judge. The convicted person remains at liberty until the decision of the sentence execution judge is final.

Within 15 working days of the request, the convicted person must complete his file by submitting the necessary supporting documents. The necessary documents depend on the type of modality requested. It is therefore up to the offender to compile the dossier. The file must be delivered to the clerk of the criminal court.

The sentencing judge will then review the file and grant or deny the sentencing modality. This procedure is basically done in writing, but if appropriate, the sentence execution judge may hear the convicted person. Depending on the decision, the convicted person must re-offend at the prison.

2) The procedure from detention

A second possibility is the procedure to apply for a sentencing modality from detention. The convicted person is therefore in prison at the time this procedure is initiated.

This scenario occurs in the following cases:

• The offender did not voluntarily and/or timely offer himself to the prison;
• The offender is not immediately in the time conditions of limited detention or electronic monitoring upon confinement;
• The convict undergoes punishment for sexual or terrorist crimes;
• The convict shows signs of violent extremism;

The procedure from detention is different from the procedure from freedom.

The prison warden informs the offender as soon as an application for a sentence modality is possible.

The convict must apply for the modality himself by submitting a written request to the prison clerk's office.

The prison director will compile a file and discuss the application with the offender. Afterwards, the warden will prepare a written recommendation advising the sentencing judge to grant or deny the requested modality.

Specialized counsel is required in the case of convictions for sexual offenses or terrorism.

The prosecution may also issue an opinion if it deems it necessary.

Then the criminal execution judge will consider the application, which is usually done in writing. If the criminal execution judge wants to discuss the application or if the convicted person himself requests to be present because a previous application was denied, the convicted person does have to appear.

The sentencing judge reviews the application and may decide to:

• Grant the requested modality;
• To deny the application; or
• Assign another modality

What if you disagree with the sentencing judge's decision?

If the sentencing judge makes a decision with which the convicted person disagrees, this decision may be appealed in cassation. This cassation appeal must be filed by a lawyer within 5 days from the decision.

Sentencing a convicted person can be particularly complex. Therefore, it may be important for the convicted person to be assisted by a lawyer during these proceedings. Would you like further information or to be assisted by a specialized lawyer? Feel free to contact us at info@bannister.be or 03/369.28.00.