Belgium – Constitutional Court, 1 December 1994, Nr. 83/94
Keywords:
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
This case concerned subsequent applications for asylum. The Constitutional Court ruled that Art 50, (3) and (4) of the Belgian Aliens Law (current Art 51/8) should be interpreted in such a way that the possibility to lodge an appeal for suspension of that decision is only excluded in cases where the following three conditions are met:
(1) the applicant has filed an earlier asylum application that was refused;
(2) the applicant has had the opportunity to appeal this decision and to exhaust his legal remedies;
(3) the applicant is making an identical asylum application without submitting any new elements.
Facts:
X and Y, of Romanian nationality, lodged an appeal for suspension before the Council of State (procedure of extremely urgent necessity – see country overview) against the execution of the decision to not take into consideration a subsequent asylum application, taken by the Immigration Department on 31 March 1994.
The Council of State, which was verifying its competence, noted that Art 50, last paragraph, of the Belgian Aliens Law (currently, since the 2006 reform, Art 51/8 in fine of the Law), determines that no appeal for suspension can be lodged against a decision not to take into consideration a subsequent application. The Council decided to submit the following “prejudicial” question to the Constitutional Court:
“does Art 50, last paragraph of the Aliens Law violate Arts 10 and 11 of the Constitution given that it prevents the candidate refugee whose application was not taken into consideration from filing any judicial appeal in administrative summary proceedings, while the judicial summary proceedings are already denied by Art 63 of the Aliens Law”.
Decision & reasoning:
Art 50 (3) and (4) of the Aliens Law (current Art 51/8) is the provision that determines that the Minister or his/her mandate holder can decide not to take into consideration an asylum application when the applicant has already filed the same application and he/she does not bring forward any new elements that there are, regarding him/herself, serious indications of a well-founded fear for persecution under the 1951 Refugee Convention. Furthermore it is stated that a decision to not take into consideration an application can only be appealed for annulment before the Council of State (this is the old procedure, in art. 51/8 the appeal should be lodged with the Council for Alien Law Litigation (CALL)) and that no appeal for suspension can be lodged against such decisions.
The question had arisen whether such exclusions of the procedure for suspension for this category of applicants amounted to a violation of the constitutional principle of equality.
The Constitutional Court examined what the purpose of the legislator was when introducing such limitations and found that it was to eliminate a particular form of procedural abuse, i.e. the system of repeated identical applications. The legislator therefore excluded the appeal for suspension before the Council of State in the cases where an applicant (1) has previously filed an asylum application that has been denied, (2) has had the possibility of filing an appeal against that denial and exhausting the legal remedies, and (3) made an identical application without bringing forward any new elements, these being understood as “elements relating to facts or situations that occurred after the last phase of the procedure in which the applicant could have submitted them”. The Constitutional Court therefore concluded that the exclusion of the suspension procedure was only applicable in the case of a purely affirmative decision of the Minister or his/her mandate holder (the Immigration Department). The appeal for suspension shall not be admissible in that specific case. Prior to declaring the appeal for suspension inadmissible, the Council of State shall check whether the conditions regarding those grounds for inadmissibility are fulfilled. If the applicant brings forward new elements, but the Minister or his/her mandate holder decides that they are not of a nature to demonstrate a well-founded fear of persecution under the 1951 Refugee Convention, then the exclusion of the suspension procedure is not applicable.
This means concretely that when a second asylum application is not being taken into consideration and there are serious indications to contest such a decision, an appeal for suspension can still be lodged, arguing that the three criteria are not fulfilled.
Outcome:
The Constitutional Court ruled that the legislator is allowed to take measures in order to fight abuses of procedure. Within the strict limits of Art 50, third and fourth paragraph, of the Belgian Aliens Law (as interpreted by the Court), this rule is not manifestly unreasonable or disproportionate. The constitutional principle of equality has not been violated (in that interpretation).
Observations/comments:
The legal provision, Art 51/8 of the Aliens Law, states:
“The Minister or his/her mandate holder can decide not to take into consideration an asylum application when the foreign national has previously filed the same application (…), and he/she does not present new elements that there exist, in his/her respect, serious indications of a well-founded fear of persecution (…), or serious indications of a real risk of serious harm (…). The new elements should relate to facts or situations that have occurred after the last phase in the procedure in which the applicant would have been able to present them.”
Other decision of the Constitutional Court with the same reasoning: decision nr. 61/94.
In 2008 the Constitutional Court, in its decision nr. 81/08, confirmed that its 1994 decision still stands after the 2006 changes in the asylum procedure. The fact that the appeals body is now the “Council for Alien Law Litigation” rather than the “Council of State” has no effect. The CALL, in its decision nr. 133 of 16 June 2007, accepted the interpretation given by the Constitutional Court.