Is the fuss surrounding the situation of the defendants in the terror trial justified?
Even before the largest assize trial that has ever taken place in Belgium has kicked off substantively, the defence has several times drawn the card of the degrading treatment of their clients. First there was the saga surrounding the accused boxes, now there is criticism of the detention conditions and the way the terror suspects are transferred from their prison to the location where the trial takes place.
To a lot of people, this undoubtedly comes across as strange or even vindictive. "How can terrorists who place no value on other people's lives so easily and successfully crawl into the victim role and abuse our legal system?" These are spontaneous and perhaps understandable reactions. We make an effort to make sense of what is happening just now: legally, socially and practically.
What is it about?
What exactly are the accused and their lawyers raising this time? The terror suspects are/were handcuffed and blindfolded during their transfer to court and they are put on headphones with what they say is "satanic" music. They would also be systematically searched naked in prison. Finally, it was reported that there would be cameras above the toilets. However, enquiries revealed that these would not be aimed at the toilets themselves. The defence said that these were degrading practices. The competent ministers Van Quickenborne and Verlinden have been held to account for this. The defence has also threatened to file summary proceedings. In that case, the court would have to wait for a ruling in that case.
What is allowed under the law?
Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the European Union stipulate as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Belgium has already been condemned several times by the European Court of Human Rights on this ground because prison living conditions were not humane. Not especially for people accused of terrorism, by the way, but also in many other situations. The articles also apply to the transfer of detainees, which is what most of the objections in this case are about.
This is an absolute right. Of course, it is essential to ensure security, but the measures used to that end must always be circumscribed by those rights. Without making a definitive judgment on the humanity of the security measures specifically complained of, the fact is that nude frisks, for example, already have a history with the cited Article 3 ECHR. In line with the case-law of the European Court of Human Rights, the Constitutional Court ruled in 2014 that systematic nude frisking upon entry to prison, as then defined in the Basic Prison Act, violates the prohibition against being treated in a degrading manner.
So why do these complaints feel so strange?
Whatever the legal obligations, the objections of the terror suspects may feel sour, not least for the victims and their relatives. Why should we feel sorry for people who were involved in the most terrible crimes and have already been convicted of them in France? Why should we pay attention to the humane treatment of defendants on trial for inhumane crimes against the citizens of a democratic state governed by the rule of law that they would prefer to see destroyed? The last question actually offers the answer already: because we just have to keep protecting and propagating the principles of that terrorised rule of law, even when it comes under pressure. In no way will humane treatment of those on trial for the most inhumane acts prevent them from being tried and punished properly and proportionately.
It is also within this whole framework that the actions of lawyers must be understood. They perform the role that the rule of law requires of them and, in doing so, will use all the legal means at their disposal (but also no more than that). More to the point, lawyers are deontologically and legally obliged to do so.
What does this mean practically?
More than six years after the terrorist attacks in our country, victims and relatives not only want a legal end, but also need answers. Whether those will come remains to be seen and depends partly on the accused. Although they reportedly have already stopped getting heavy metal rammed through their ears, five accused still left the hearing on the third day of the trial. On the one hand, this shows the fine line between protecting human rights and using circumstances as a means of pressure; on the other, there is the pragmatic observation that the terror trial in Paris earlier this year (which generated far less fringe controversy) did result in a (limited) form of response. In this sense, it is not only the rights of the accused that are at stake, but also the coping process of the victims and their trust in the process.
Perhaps the president of the court, Ms Laurence Massart, is also taking all this into consideration. She has clarified that her powers are limited to the courtroom itself, but has nevertheless urged changes in the actual treatment of the accused in a letter.