On 18 August 2026 the Court of Cassation held that where a toilet in a shared cell is separated only by a curtain, the judge must examine whether other conditions of detention have a reinforcing or cumulative effect. Detention conditions cannot be examined in fragments.
On 18 August 2026, the vacation chamber of the Belgian Court of Cassation delivered an important judgment concerning detention conditions and Article 3 of the European Convention on Human Rights.
The case concerned a person in pre-trial detention who shared a two-person cell with another detainee. The toilet was situated inside the cell and separated from the living area only by a curtain. Meals were also eaten inside the cell.
In a judgment of 6 August 2026, the Indictment Chamber of the Ghent Court of Appeal had found no violation of Article 3. The Court of Cassation quashed that judgment in part and sent the case back to the Indictment Chamber, differently composed. The reasons given did not show that the appeal judges had examined whether other detention conditions, combined with the inadequate sanitary privacy, produced a reinforcing or cumulative effect capable of reaching the Article 3 threshold.
The Court of Cassation did not itself find a violation of Article 3. But the judgment matters because it applies an essential Strasbourg principle to a concrete situation:
Detention conditions must be assessed in light of their cumulative effects.
The absence of adequate separation of a toilet in a shared cell is not merely a comfort issue.
Strasbourg case-law has repeatedly treated sanitary privacy as an important element of the Article 3 assessment.
A detainee does not lose the right to basic human dignity because liberty has been lawfully restricted.
Where detainees share a cell, the way in which toilet facilities are separated from the living area therefore matters.
The Belgian Court of Cassation expressly connected its analysis to European Court of Human Rights case-law. Relying on judgments including Vasilescu v. Belgium, it recalled that a toilet in a shared cell which is screened off only by a screen, a curtain or a low wall is not acceptable.
At the same time, the Court did not hold that a curtain around a toilet automatically establishes a violation of Article 3 in every case.
Referring to Szafrański v. Poland, it stated that the mere fact that a toilet is not fully separated from the living area does not necessarily breach Article 3. Whether it does depends on the presence of other conditions of detention with a reinforcing or cumulative effect. In Szafrański itself, the European Court found no violation of Article 3, but a violation of Article 8.
Under Strasbourg case-law, the Article 3 threshold is assessed in light of the overall conditions of detention and their cumulative effects. Relevant factors include:
The importance of the judgment therefore lies not in creating an automatic rule but in its practical effect: a judge cannot reject such a complaint without examining whether other circumstances reinforce it.
Conditions which do not individually reach the threshold can cumulatively become degrading.
The Court of Cassation's approach requires judges to look beyond isolated characteristics of a cell.
If a detainee alleges lack of toilet privacy, the judge must examine whether other circumstances have a reinforcing or cumulative effect.
The Court of Cassation did not list those circumstances. They may include, for example, how long the detainee remains in the cell, whether meals are eaten beside the toilet and the personal space available.
That is the essence of the cumulative test.
Article 3 protects against the total reality of detention, not merely against individual deficiencies examined one by one.
The August judgment is part of a broader development.
The Court of Cassation has repeatedly returned to Article 3 and detention conditions in recent years, mostly in cases in which the investigating courts review pre-trial or extradition detention.
Earlier decisions had already addressed the evidential difficulties faced by detainees.
A detainee will rarely possess the official records necessary to establish every aspect of overcrowding, cell allocation, staffing, hygiene or prison organisation.
Convention protection would become largely theoretical if the evidential burden were placed entirely on a person whose living conditions are controlled by the State.
At the same time, objective reports concerning a prison do not necessarily establish automatically that every individual detained there has suffered an Article 3 violation.
The individual situation remains important.
This produces a balanced approach:
Individual allegations must be sufficiently concrete, but they must be assessed against the objective reality of the detention environment.
In principle, yes.
The European Court itself takes account of the cumulative effects of detention conditions, as the Grand Chamber recalled in Muršić v. Croatia.
Personal space is extremely important, but it may interact with sanitation, ventilation, freedom of movement, outdoor exercise, healthcare and other factors.
This is precisely why the cumulative approach matters.
The risk arises where national courts break the detention experience into separate components and conclude that none is sufficiently serious on its own.
That can miss the Convention issue entirely.
Five inadequate conditions do not become acceptable merely because each is assessed in isolation.
The timing of this development is significant.
Three weeks after the August cassation ruling, on 8 September 2026, the Council of Europe's Committee for the Prevention of Torture published its report on its periodic visit to Belgium in May 2025.
That report describes serious and structural problems affecting Belgian detention.
The relationship between those objective CPT findings and the individual Article 3 analysis before Belgian courts now becomes particularly important.
The CPT report deserves separate consideration.
The recent Court of Cassation case-law shows that Article 3 is not peripheral to detention litigation in Belgium.
Strasbourg standards already form part of the domestic legal test.
That makes proper preservation of Convention arguments particularly important.
Where an Article 3 complaint has been concretely raised, where the relevant evidence has been placed before the national courts and where the final domestic decision nevertheless appears inconsistent with Strasbourg standards, the end of the Belgian proceedings may mark the beginning of a separate Convention assessment.
The crucial lesson of the August 2026 judgment is therefore simple:
Article 3 detention conditions must not be examined in fragments.
Human dignity is assessed through the total conditions in which the person is actually detained.
These notes are general information on Convention law; they do not constitute legal advice and do not create a lawyer-client relationship.
After the final decision of the highest national court, a case may be submitted to us directly, by the client or by national counsel.