Judicial review of the detention order

Belgium

Country Report: Judicial review of the detention order Last updated: 30/11/20

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When asylum seekers are detained, they are informed in writing of the detention decision, its reasons and the possibility to lodge an appeal. Those reasons are mostly limited to very general considerations such as “having tried to enter the territory without the necessary documents (at the border)”, or “risk of absconding (in Dublin cases)”. Translation of the detention decision in the language of the asylum seeker is not provided for by law, but in some centres a social interpreter is arranged by the centre’s social assistant on request by the detainee.  

National legislation does provide for judicial review of the lawfulness of detention. No habeas corpus writ is automatically brought before a judge when an asylum seeker is being detained, but he or she can lodge a request to be released with the Council Chamber of the Criminal Court every month.[1] The Council Chamber has to decide within 5 working days, and if this time limit is not respected, the asylum seeker has to be released from detention.[2] An appeal can be lodged against the decision of the Council Chamber before the Indictment Chamber at the Court of Appeal (Chambre des mises en accusation | Kamer van Inbeschuldigingstelling) within 24 hours. Against this final decision, a purely judicial appeal can be introduced in front of the Court of Cassation. 

When the Immigration Office decides to prolong the detention for another month after the applicant has spent already 4 months in detention, an automatic review by the Council Chamber of the Criminal Court takes place.[3]

The scope of judicial review of detention remains very restrictive. Only the legality of the detention can be examined, not its appropriateness nor its proportionality. This means that only the accuracy of the factual motives of the detention order can be scrutinised i.e. whether the reasons for detention are based on manifest misinterpretations or factual errors or not. The logic behind this is that the competence to decide on the removal of the foreigner, and as such on the appropriate measures to execute such a decision, lays with the Immigration Office and the CALL, not with the criminal courts. However, an appeal against a “refoulement decision” issued when applying for asylum at the border by the CALL will only be done once the execution becomes imminent, which is only the case once the asylum application has been refused (see Border Procedure).

The scope of the judicial review on the legality of detention measures is almost arbitrary and the Court of Cassation is ambiguous about the interpretation of such legality in its own jurisprudence, by including assessments of conformity of detention with the Return Directive or the ECHR, following the ECtHR’s ruling in Saadi v. United Kingdom.[4] The Council or Indictment Chambers have even sometimes considered the principle of proportionality as part of the legality of a decision, but in most cases they limit their review to the legal basis for the decision, without ever considering any of the provisions of the Reception Conditions Directive. The fact that the person detained is an asylum seeker or a particularly vulnerable person is generally not taken into consideration as an argument to limit the use of detention.[5] The law that entered into force on 22 March 2018 states that an asylum seeker can be detained if no other less coercive alternative measures can be applied and if it is deemed necessary based on an individual assessment. These less coercive measures have not yet been listed by way of Royal Decree. This recent reform remains to be evaluated in practice.

The procedure before the courts is determined in the Law on the Provisional Custody that applies in criminal law proceedings.[6] In practice, the time limits set in the law are respected, unless an appeal at the Court of Cassation is introduced against a judgment ordering release by the Court of Appeal. Since this cassation appeal suspends the detention period and it is not commonly treated within a reasonable time period, the detention period can exceed the legal maximum and result in the asylum seeker remaining in detention for prolonged periods. This practice has repeatedly been found by the ECtHR to be a violation of Article 5(4) ECHR.[7]

 


[1]Article 71 Aliens Act.

[2] Article 72 Aliens Act.

[3] Article 74 Aliens Act.

[4] ECtHR, Saadi v. United Kingdom, Application No 13229/03, Judgment of 29 January 2008.

[5]  See for examples of jurisprudence and more on this issue, BCHV-CBAR, Grens-Asiel-Detentie, Belgische wetgeving – Europese en internationale normen, January 2012.

[6] Law of 20 July 1990 concerning pre-trial detention, available in French at: http://bit.ly/1B626nE and Dutch at: http://bit.ly/1KpjZzR.

[7] ECtHR, Firoz Muneer v. Belgium; M.D. v. Belgium.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation