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Belgium / Constitutional Court / 1/2014

Association pour le droit des Etrangers Coordination et initiatives pour et avec les Réfugiés et Etrangers (CIRE), Liga voor Mensenrechten/Ligue des Droits de l’Homme, Vluchtelingenwerk Vlaanderen, Nazifa Mustafa and Daniel Vasic v Council of Ministers (Ministerraad/Conseil des ministres)

Policy area:
Asylum and migration
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:

Key facts of the case:

The applicants claim that asylum seekers from a country considered as a ‘safe country’, do not have the possibility to challenge the negative decision taken by the asylum authorities before the Council for Foreigners Disputes through an appeal whereby the court has full jurisdiction (the competence to decide on both legal and factual issues), because the only appeal they can access is a ‘request to annul’ the decision, which does not allow the court to examine the facts of the case and which does not have a suspensive effect. The applicants thus claim that they cannot exercise their right to an effective remedy. Therefore, the applicants claim that articles 2 and 3 (Article 2 of the Law of 15 March 2012 can be seen as implementing article 23 (4) (c) (ii) of Directive 2005/85/EC of 1 December 2005) of the Law of 15 March 2012 modifying the Law on Foreigners of 15 December 1980 and the Law of 17 May 2006 on the external legal position of persons sentenced to imprisonment and the rights granted to the victim in the context of the sentence execution modalities, violate articles 10, 11, 13, 23 and 191 of the Constitution, read in conjunction with articles 1, 3 and 33 of the 1951 Refugee Convention, with articles 3, 6, and 13 of the European Convention on Human Rights, with articles 1, 18 and 47 of the Charter of fundamental rights of the EU, with articles 23 and 39 of the EU Asylum Procedures Directive 2005/85/EG, with articles 13, 14 and 15 of the EU Reception Conditions Directive 2003/9/EG, with articles 3, 6 and 33 of the Law of 12 January 2007 concerning the reception of asylum seekers and certain other categories of foreigners, and with the general principle of the right of access to a judge. The applicants therefore request the partial or full annulment of the mentioned laws.

Outcome of the case:

The Court ordered the annulment of

- Article 2 of the Law of 15 March 2012 "amending the Law of 15 December 1980 on access to the territory, residence, establishment [and removal of foreign nationals] and the Law of 17 May 2006 on the external legal status of persons sentenced to a custodial sentence and on the rights granted to victims in the context of the execution of sentences";

- in Article 39/81, first paragraph, of the aforementioned Law of 15 December 1980, as amended by Article 3 of the aforementioned Law of 15 March 2012, the words "and 57/6/1".