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NEWS

Commentary: 73 000 alleged COVID-19 breaches in Belgium - now is time to launch a review

FairTrialsAdmin - June 30, 2020 - COVID-19 Updates, Commentary, New criminal offences, Extended police powers

Amare[1], a 20 year-old food delivery cyclist was at a standstill to check the number of the house he had to deliver in Brussels when a police officer asked him for his identity card. When Amare tried to understand why, the officer responded “Sir, it is quarantine, you are stopped, you must be on the move”. Despite clear indications that Amare was on duty (uniform and bike from his company), he was fined several hundred euros – an amount equivalent to several days of work for Amare, who felt he had been targeted because of his North African origins.

The story of Amare is not unique. Willy and Marghareta each received a fine of 250 euros while taking a break on a bench during a cycling tour in Ostend. Sawa was fined for having used her car to reach a park to walk her dog, because there is no green area close to her house and her health condition prevented her from reaching the park on foot. In another case, police officers enforced the COVID-19 ban on gatherings with violence against migrants and homeless people standing near their temporary shelter. By early May, before the end of lockdown, the Belgian police oversight body, the Comité P, had already received 111 complaints concerning cases of abusive fines, excessive use of force or police officers’ failure to respect the necessary distancing or to wear protective equipment.

Around the globe, countries have responded to the COVID-19 pandemic by extending law enforcement powers and creating new criminal offences. In many places, this led to abusive and excessively high fines and disproportionate law enforcement actions, including unlawful arrests, charges and convictions. Belgium is no exception to this trend.

On 23 March, Belgian authorities adopted a decree establishing measures to limit the spread of COVID-19 (closing of stores, ban on gatherings etc.). Anyone not complying with the lockdown measures could face a fine of 250 euros. Anyone caught a second time may be summoned directly to appear before the criminal courts, and face fines of up to 4,000 euros and/or a prison term of 8 days to 3 months leading to a criminal record.[2] To reduce the workload of the courts, the authorities authorised municipalities to resort to the use of administrative sanctions of 250 euros, with judicial proceedings being limited to minors, repeated or concurrent offences. But not all municipalities have the legislative framework in place to impose such sanctions and some expressly refused to use it.

These measures have been criticised for affecting mainly young, poor and racialised sections of the population with excessively high fines in already very challenging financial circumstances. By imposing a fixed fine of 250 euros for any breach of the rules,[3] the authorities did not allow for sentences to be proportionate to the gravity of the offence committed – a key principle of criminal law. The Decree also failed to comply with the principles of legality and foreseeability, which require that all restrictions on rights be clearly and precisely set. For instance, the Decree prohibits “public and private activities of a cultural, social, festive, folkloric, sporting and recreational nature”. Without any detail about the concept of gathering, this broad provision could literally be interpreted as prohibiting reading a book or playing piano at home. The authorities tried to circumvent this lack of clarity with the publication of an extensive list of “frequently asked questions” which, in practice, went far beyond what was prohibited by the Decree. In doing so, the authorities completely disregarded the basic principle that restrictions on fundamental freedoms and criminal law must be of strict interpretation. For instance, the FAQ forbade lone basketball playing or horse riding despite the Decree authorising “physical activity”. The same goes with the prohibition to sit on a bench. While the Decree only banned gatherings, the Prime minister stressed that “the goal was to keep moving”, leading police officers and some municipalities to prevent people from resting on a bench despite keeping social distances. This was later “authorised” by the FAQ for the elderly, people with disabilities and pregnant women.

The mix between informal statements and binding rules, federal and local provisions created great confusion and legal uncertainty on what was permitted or not, both for police officers and citizens. The numerous versions of the Decree[4] and the FAQs didn’t help. The Belgian police itself had urged for more clarity - acknowledging that in the absence of clearer guidance, it had to lean on the government FAQs, a document which has no legal force. It is therefore not surprising that the vaguely defined provisions have resulted in wrongful charges and convictions for alleged COVID-19 related offences.

The numbers are self-explanatory. Within 2 months, over 20 000 alleged breaches of the lockdown decree were recorded by the police for Brussels alone. The local authority representative in charge of processing the administrative sanctions notes that about 30-40 % of the breaches have been challenged. The representative admits he won’t impose any administrative sanction for half of the contested cases – cases like those of Amare, Willy, Marghareta or Sawa. This means approximately 3500 wrongful police reports just for the city of Brussels. For the whole country, about 73 000 cases were registered by the prosecution services as at 4 June.

The COVID-19 pandemic led to major restrictions on the fundamental freedoms of the Belgian population, involving criminal and administrative sanctions, and potentially also criminal records. Given the speedy evolution of the pandemic, the authorities had to respond quickly with appropriate regulations – some regulations were enacted within just a few hours. Adopting clear and precise rules is however a prerequisite to prevent wrongful charges and convictions.

The disproportionate use of criminalisation in Belgium is not unique. Fair Trials reported extensively on the same situation across Europe, and JUSTICIA, a network of European leading civil society organisations, issued a statement calling for Member States to review all COVID-19 related charges and prosecutions:

  • States should urgently review all charges, convictions and fines imposed for alleged COVID-19 offences. Any disproportionate, illegal or abusive charge, conviction and fine should be immediately lifted and courts should ensure that an effective remedy is available.
  • States should develop easy procedures for people to apply for fines imposed during the emergency to be lifted, including because of financial hardship.
  • States should ensure that any records relating to violations of COVID-19 laws are expunged from criminal records and police databases.

Fair Trials urges Belgium to follow these recommendations and review all charges, convictions and fines related to alleged COVID-19 offences with the view of lifting any illegal or disproportionate sanction and ensuring the consistency of charging decisions across the country.

 

[1] Not his real name. Amare’s story has been collected via Police Watch, an initiative by La Ligue des Droits Humains to monitor police violence in Belgium. Mid-June, la Ligue des Droits Humains released a report “Abus policiers et confinement” based on 100 testimonies received during the lockdown.

[2] The law provides for a fine of 208 to 4,000 euros and/or 8 days to 3 months in prison but the General Prosecutors’ Circular adopted on 25 March indicates that first time offender will be offered an amicable settlements (‘transaction pénale’) of 250 euros, which avoid any criminal record.

[3] Administrative sanctions are usually flexible, allowing the officer to choose an amount between 1 to 350 euros.

[4] The ministerial decree establishing emergency measures to limit the spread of the COVID-19 coronavirus has been modified a dozen times within 3 months. The complete list of measures is far more impressive.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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