Belgium’s new Penal Code explicitly provides that imprisonment is a measure of last resort. This change, alongside other key provisions, aims to reduce prison admissions in a country plagued by structural prison overcrowding.
On 1 September 2026, Belgium’s new Penal Code entered into force, replacing the former code, adopted in 1867. An important provision concerning prison sentences is Article 27 on “the purposes of punishment”, which provides that imprisonment is a measure of last resort (“ultime recours”) and may be imposed only where the purposes of punishment cannot be achieved by another penalty or measure provided for by law.
This principle is particularly relevant for “level 2 penalties”, which include both non-custodial sentences (such as electronic monitoring, community service and probation) and imprisonment of six months to three years. [1] For level 2 imprisonment, Article 27 requires judges to explain why the purposes of punishment cannot be achieved through another level 2 penalty. This arguably makes imprisonment at this level a sanction whose necessity must be demonstrated, rather than the starting point from which alternatives are considered.
Article 27 also retains the requirement, introduced in 2025, to consider the adverse side effects (“effets secondaires indésirables”) of a sentence on those directly concerned, their social environment and society. Although not expressly listed, loss of employment or housing, disruption of family relationships and interruption of medical treatment in the event of imprisonment are relevant examples of consequences that this assessment should encompass.
Article 27 does not itself create new alternatives to imprisonment, of which Belgium already makes extensive use: according to European statistics, Belgium is among the countries reporting the highest rates of probation measures. Yet extensive community supervision coexists with persistent prison overcrowding – a combination that illustrates that expanding alternatives does not necessarily lead to a reduced use of imprisonment. As the CPT noted in its latest report on Belgium, “[w]hile the number of people placed under electronic surveillance doubled between 2013 and 2024, the rising prison population continued to fuel the persistent problem of structural overcrowding”.
The Penal Code reform therefore seeks to change the reasoning behind the choice of sentence and to reduce admissions to prisons. This is particularly relevant for prison sentences of up to three years. The number of prisoners serving such sentences “had nearly quadrupled” between 2021 and 2025, reported the CPT.
However, several obstacles stand in the way of the reform. First, Article 27 governs sentencing, not pre-trial detention, which remains a separate contributor to prison overcrowding. Second, it remains to be seen whether courts will actually assess the necessity of imprisonment in each individual case, rather than reproduce standard explanations for rejecting other sanctions. Third, the effectiveness of community sanctions requires adequately staffed and funded probation services, housing support, healthcare and social services. Without this infrastructure, the legal preference for alternatives risks remaining theoretical.
Emergency measures to address prison overcrowding, adopted in July 2025, had already sought to restrict short custodial sentences and strengthen the requirement for judges to justify the choice of a custodial sentence. While their impact on prison overcrowding remains to be established, assessing the specific impact of the new Article 27 of the Penal Code will therefore require distinguishing its effects from those of earlier reforms and changes in sentence execution.
[1] The Code organises penalties into eight levels of increasing severity. While level 1 excludes imprisonment and level 2 includes both imprisonment and non-custodial sentences, levels 3 to 8 provide for custodial penalties of varying durations.
The European Prison Litigation Network (EPLN) and its members and partners monitor developments in domestic prison law across Europe and provide concise analyses of the most significant changes affecting prisoners’ rights at national level. These updates are intended to support practitioners in identifying emerging European trends, drawing on comparative experiences, and strengthening their legal practice and advocacy in defence of prisoners’ rights.
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