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Belgium / Cassation Court / P.16.0281.F/1

A.H. against a decision issued by the Appeal Court of Liège

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Cassation Court
Decision date:

Key facts of the case: 

The claimant has no valid documentation for living in the Belgian territory and he or she has been deprived of liberty in order to guarantee his or her removal from the national territory. The claimant has challenged the decision of deprivation of liberty in front of the domestic courts of Liège but the Appeal Court has dismissed his claim.

Therefore, the claimant challenged the Appeal Court decision in front of the Cassation Court. In his or her cassation complaint, the claimant firstly argues that the Appeal Court decision must be quashed because the decision of the deprivation of liberty does not need to outline the reasons for which less coercive measures could not be applied to guarantee the execution of the removal order. In other words, the claimant contends that the administrative authority that issued the deprivation of liberty measure infringed Articles 7(3) and 62 of the Aliens Act because it did not give the reasons why a less coercive measure could not have been applied in its decision of deprivation of liberty.

Second, the claimant argues that the decision of deprivation of liberty issued by the administrative authority infringes Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union, Article 6 of the European Convention of Human Rights and the general principle concerning the respect of the rights of defence, including the right to be heard. He or she criticised the administrative authority’s decision for having issued a measure of deprivation of liberty in order to guarantee his or her expulsion while he or she has not been heard prior to the decision.

Outcome of the case: 

In its ruling, the Cassation Court firstly decided that Articles 7(3) and 62 of the Aliens Act were not infringed in this case because these provisions do not set out an obligation for the tribunals to give the reasons why a less coercive measure has not been adopted.

Second, the Court examined each of the Charter’s Articles raised by the claimant regarding the facts of the present situation and stated that:

1.        Article 41 of the Charter does not impose any obligations to Member States, only on the institutions and bodies of the European Union. That provision cannot, therefore, be founded on the alleged right to be heard by the administrative authority of a Member State before the detention decision for the time strictly necessary to the execution of the order to leave the territory.

2.        Article 47 of the Charter enshrines the right to an effective remedy before a tribunal and the rights of the accused to have a public, impartial and fair hearing in a reasonable time by an impartial and independent court. This provision guarantees, therefore, to anyone the right to have an effective remedy against a removal order accompanied of a measure of detention. However, the claimant cannot deduce from it a right to be heard prior to the adoption of the detention measure.

3.        Article 48 of the Charter and Articles 6(2) and 6(3) of the ECHR set out the right of every accused person to the presumption of innocence until proved guilty according to law, and guarantees the respect of the rights of defence. These provisions only concern the criminal procedure when a person has committed a criminal offence, but do not apply when a measure of deprivation of liberty has been issued by an administrative authority.

4.        The authorities of the Member States are not subject to the obligation to observe the rights of the defence of addressees of decisions which significantly affect their interests when they take measures which derives from the scope of the European Union Law.

5.        No rule, set out by the European Union, has established the conditions in which the law must guarantee the respect of the rights of the defence of a third country national in an irregular situation prior to being subject to a detention measure following a removal order.

Lastly, the Court considered that the claimant has been heard several times throughout the course of the judicial remedies and, as a consequence, the Appeal judges have legally deduced that his or her rights of defence have been respected.