Police custody in Belgium: what are your rights vis-à-vis the police?

Did you know that since 2017, the maximum duration of deprivation of liberty in Belgium has increased from 24 to 48 hours, profoundly changing your rights during an arrest? This lack of awareness of the new rules can lead to situations where arrested people do not assert their fundamental rights, thus exposing themselves to irregular procedures. With his experience since 2005, Maître Innocent TWAGIRAMUNGU, a lawyer established in Brussels, supports clients confronted with these delicate situations on a daily basis and regularly notes the crucial importance of knowing precisely one’s rights from the first moments of arrest.

• The maximum duration of judicial arrest is 48 hours (only 12 or 24 hours for minors), with a single possible extension of 24 hours by the investigating judge.
• You have the right to a lawyer upon your arrest for any offense punishable by more than one year of imprisonment, with compulsory assistance for minors even if the parents object.
• Arrests in a private place are prohibited between 9 p.m. and 5 a.m. (except flagrante delicto, authorization from the public prosecutor, or anti-terrorism measures according to the law of April 27, 2016)
• In the event of an irregularity, you can appeal to the indictment chamber within 15 days, with immediate release if the legal deadlines have not been respected.

Police custody or judicial arrest: what is the difference in Belgium?

The term « custody » that you often hear in the media is in reality a French expression which does not exist in Belgian law. In Belgium, we talkjudicial arrestordeprivation of liberty. This distinction is not just a question of vocabulary: it reflects important legal differences between the French and Belgian systems.

Recent developments in the Belgian legal framework have considerably modified your rights. On November 29, 2017, a major constitutional amendment came into force, increasing the maximum duration of detention from 24 to 48 hours. This extension of the deadline, although it provides more time for investigators, comes with additional safeguards to protect your fundamental rights.

There are two types of arrests in Belgium, each with its own time limits. L’administrative arrest, used to maintain public order during demonstrations or disturbances, cannot exceed 12 hours. L’judicial arrest, it concerns crimes and misdemeanors and can reach 48 hours (or only 12 to 24 hours for minors depending on the seriousness of the facts). Knowing this difference is essential to understanding your rights and identifying possible abuse by law enforcement.

How long can your arrest last according to Belgian law?

Since November 2017, judicial arrest can last up to48 hours maximum. This period begins to run from the moment you are actually deprived of your freedom to come and go, and not from the moment you arrive at the police station. For example, if you are arrested at 2 p.m. at your workplace and taken to the police station, it is 2 p.m. which marks the start of the deadline.

Administrative arrest, for its part, remains limited to12 hours. This measure is generally used during identity checks, demonstrations or when your behavior represents an immediate danger to public order. Beyond this period, the police must either release you or transform your administrative arrest into a judicial arrest if the legal conditions are met.

A single extension of 24 additional hours may be granted, but only by an investigating judge, once per procedure and in duly justified exceptional circumstances. This decision must be notified to you within the first 24 hours of your arrest. Without this official notification, your detention beyond 48 hours becomes illegal.

Please note: For minors, the regime is considerably reduced with a maximum arrest period of 12 hours for minor offenses or 24 hours for serious offenses, instead of the 48 hours applicable to adults. This reinforced protection demonstrates the legislator’s desire to limit the deprivation of liberty of young people to what is strictly necessary.

A crucial point concerns time restrictions: apart from strictly regulated exceptions, you cannot be arrested in a place not open to the public.between 9 p.m. and 5 a.m.. The three legal exceptions are flagrante delicto, special authorization from the King’s prosecutor, and the anti-terrorism measures provided for by the law of April 27, 2016. This protection aims to preserve your nighttime tranquility and that of your family.

In what situations can you be legally arrested?

Judicial arrest is only possible forcrimes and misdemeanors. Simple violations, such as inconvenient parking or a minor traffic violation, can never warrant an arrest. This distinction is fundamental and unknown to many citizens.

Two main situations allow your arrest: flagrante delicto (you are caught in the act or immediately after the facts) or with prior authorization from the public prosecutor. In any case, your arrest must beimmediately confirmedby the deputy of the King’s prosecutor on duty. Without this confirmation, the police must release you without delay.

The police have the obligation to record your arrest in a special register of deprivations of liberty, mentioning the exact time, the reason and the identity of the intervening agents. You have the right to obtain a copy of this registration and can expressly request the delivery of an extract from this register mentioning your arrest, an essential document to subsequently verify the regularity of the procedure.

Practical advice: Please note that the public prosecutor has alternatives to traditional criminal proceedings. The penal settlement allows you, upon payment of a sum fixed by the magistrate and on condition of admitting your responsibility and compensating the civil party if they do not contest, to terminate the public action. For offenses punishable by less than 2 years of imprisonment, criminal mediation can also be offered: set up by a justice assistant, it allows the extinction of public action if an agreement is reached and executed between the parties.

When and how to benefit from the assistance of a lawyer?

The Salduz law, which came into force on January 1, 2012, revolutionizes your rights in terms of legal assistance. For any offense punishable by more than one year of imprisonment, you haveright to a lawyerupon your arrest. This right is fundamental and cannot be denied to you under any circumstances.

If you do not have the financial means to pay a lawyer, the Salduzweb system allows the automatic appointment of a duty lawyer. It is important to distinguish between first-line legal aid (free for all, regardless of means) and second-line legal aid (reserved for people with insufficient resources, with automatic free access for all minors regardless of family income). The appointed lawyer has a maximum period of2 hoursto meet you at your audition location.

Before any hearing, you benefit from a confidential consultation with30 minuteswith your lawyer. This valuable time allows you to understand the accusations against you, prepare your defense and receive advice on the attitude to adopt. The police cannot listen to or record this conversation.

For minors, the regime is even more protective: the assistance of a lawyer isOBLIGATORYand it is impossible to give it up, even with parental consent. This reinforced protection aims to guarantee that young people, who are particularly vulnerable to the judicial system, always benefit from professional support.

Concrete example: Thomas, 17, is arrested for shoplifting in a Brussels store. Even if his parents, contacted by the police, believe that he does not need a lawyer for « a youthful mistake », the law requires the presence of a lawyer. The duty lawyer arrives within 2 hours and discovers during the confidential interview that Thomas was under pressure from an older group. This information, which the minor would perhaps not have dared to reveal alone to the investigators, makes it possible to direct the procedure differently towards protection of the young person rather than pure punishment.

What are your essential rights while in police custody?

Your first fundamental right isright to silence. After disclosing your identity, you are never obliged to answer the investigators’ questions. This silence cannot be interpreted against you and is an essential protection against self-incrimination. Your lawyer will advise you on the advisability of making use of this right depending on your situation.

The authorities must give you awritten declaration of your rightsbefore the first audition. This document, written in a language you understand, details all of your prerogatives. If you do not understand French or Dutch, a sworn interpreter registered in the national register of sworn translators-interpreters (RN TIJ) must be made available to you free of charge, with an obligation for him to respect absolute confidentiality according to the code of ethics in force.

• Right to inform a loved one of your arrest (unless postponement justified by the magistrate)
• Right to free medical assistance or from a doctor of your choice
• Right to consult the minutes and demand corrections
• Right not to sign your declarations if you do not agree
• Right to meals and drinks at usual times

How can you protect yourself against irregularities and assert your rights?

Verifying compliance with the 48-hour deadline is essential. Always ask for the exact time of your arrest and make sure it appears correctly in all documents. Exceeding the legal deadline automatically results in yourimmediate release, unless presented before an investigating judge within the time limit.

Carefully check your statements transcribed in the minutes. The investigators should allow you to reread the entire document and make corrections if necessary. Never sign a report whose content does not correspond exactly to your words. If in doubt, your lawyer can ask for the document to be read in full.

If you notice irregularities in the procedure, several remedies are available to you. The council chamber, during your first appearance within 5 days following the issuance of an arrest warrant, will examine the legality of your arrest. Your lawyer will be able to raise any violation of your rights and request your release. In the event of an unfavorable decision, you have the right to appeal to the indictment chamber within 15 days following the decision, with immediate release if the legal deadlines have not been respected.

Please note: If you are held in preventive detention, be aware that a mandatory periodic judicial review is planned. The council chamber will review your situation monthly for the first three months, then quarterly. At each hearing, the magistrate must give specific reasons why your continued detention remains necessary, which constitutes an additional guarantee against arbitrary or excessively long detentions.

Free legal aid remains available even after your release. The Télébarreau, reachable at02 511 54 83from 2 p.m. to 5 p.m. on weekdays, offers free legal advice (front-line help open to all). This service can direct you to the appropriate steps if your rights have not been respected.

The consequences of failing to follow procedures can be significant. An irregular arrest can lead to the nullity of the evidence collected, or even the annulment of the entire procedure. This is why it is crucial to report any irregularities to your lawyer immediately.

Faced with the complexity of arrest procedures and the constant evolution of legislation, the support of acriminal law lawyerbecomes essential to effectively protect your rights. Maître Innocent TWAGIRAMUNGU puts his in-depth expertise in Belgian criminal law and his practical knowledge of Brussels legal procedures at your service. His firm offers complete assistance, from the arrest to the resolution of your case, with a human and personalized approach that makes the difference in these difficult times. If you are faced with an arrest situation in Brussels or its surroundings, do not hesitate to request its services to benefit from rigorous defense and reassuring support throughout the procedure.