26 MAY 2005. - An Act to amend the Act of 23 May 1990 on the interstate transfer of convicted persons and the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Preliminary provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Amendments to the Act of 23 May 1990
on the transfer of convicted persons
Art. 2. The title of the Act of 23 May 1990 on the interstate transfer of convicted persons is replaced by the following title:
"The Law on the Interstate Transfer of Convicted Persons, the Resumption and Transfer of Supervision of Convicted Persons under Condition or Released under Condition and the Resumption and Transfer of Enforcement of Penalties and Custodial Measures".
Art. 3. An article 5bis, as follows, is included in chapter II of the Act:
“Article 5bis. When an international instrument binding Belgium prescribes it, the consent of the convict is not required, by derogation from Article 1^erParagraph 1^er3°, where the convicted person is subject to expulsion or surrender to the border or any other measure under which the person, once released, will no longer be allowed to stay in Belgian territory. However, the government makes its decision after considering the notice of the convicted person. »
Art. 4. In section 8, paragraph 2, of the Act, the words "or, by derogation from section 1^erParagraph 1^er, 3°, the notice is inserted between the words "consent" and "interested" and the words "or, if any, a copy of the expulsion or surrender measure to the border, or any other equivalent measure", are inserted between the words "foreign judgment of conviction" and ", order immediate incarceration".
Art. 5. The same law is supplemented by a chapter V, comprising sections 15 to 17, and entitled as follows:
“Chapter V. Resuming and transferring supervision of persons sentenced under condition or released on condition. »
Art. 6. Section 15, as follows, is included in Chapter V of the Act:
“Article 15. The Belgian State may, pursuant to an international convention or an international treaty and provided that it respects the measures and conditions imposed in the foreign criminal judgment, take charge of the supervision of persons convicted under condition or released under condition. The resumption of surveillance does not require the consent of the convicted person under condition or conditional release."
Art. 7. Section 16, as follows, is included in Chapter V of the Act:
“Article 16. When the monitoring measures imposed abroad do not correspond, by their nature or duration, to those provided for by the Belgian law for similar facts, the Crown's procurator of the borough of the person's home or residence, promptly seizes the probation commission, the parole board or, if the measure imposed in the requesting State is the same as that provided for in chapter II of the law of 9 April 1930 of social defense to The King's prosecutor requires the adaptation of the surveillance measures imposed on the measures provided for in Belgian law for a similar offence. Foreign surveillance measures may not be aggravated in their nature or duration. The Probation Commission, the Parole Board or, where applicable, the Social Defence Commission shall decide in the month in accordance with the applicable procedure. However, the decision is immediately enforceable. "
Art. 8. Section 17, as follows, is included in Chapter V of the Act:
“Article 17. The Belgian State may, pursuant to an international convention or an international treaty, request a foreign State to resume the supervision of persons sentenced under condition or released under condition in Belgium. The transfer of surveillance does not require the consent of the convicted person under condition or released on condition."
Art. 9. The Act is supplemented by chapter VI, which includes sections 18 to 25, and is entitled to:
“Chapter VI. Execution in Belgium of penalties and custodial measures imposed abroad. »
Art. 10. Section 18, as follows, is included in Chapter VI of the Act:
“Article 18. § 1^er. A foreign State may, under an international convention or an international treaty, request the Belgian State to:
1° shall, in addition to the exercise of supervision over a person sentenced under condition or released on condition, make the possible revocation of the decision on conditional suspension or conditional stay of the sentence or custodial measure, or the revocation of parole. Revocation is only possible if the person under surveillance violates surveillance measures. Where applicable, the Belgian State also proceeds to the resumption of the execution of the sentence or of the deprivation of liberty;
2° proceed to the resumption of the execution of a sentence or a measure of deprivation of liberty, if the sentenced person is of Belgian nationality or may be considered, in accordance with Article 3, as a Belgian national and tries to avoid the execution of the sentence in the State where he was sentenced by taking refuge in Belgian territory before having suffered the entirety of his conviction.
§ 2. The judicial decision taken pursuant to Article 6, 4°, of the Act of 19 December 2003 on the European arrest warrant shall prevail over the execution of the sentence or the deprivation of liberty referred to in the said judicial decision. The penalty or measure of deprivation of liberty shall be carried out in accordance with the provisions of this Act.
§ 3. In the cases referred to in § 1^er and 2 and in accordance with the provisions of Article 22, the penalty or deprivation of liberty imposed abroad in respect of a person in the territory of the Kingdom is directly and immediately enforceable in Belgium".
Art. 11. Section 19, as follows, is included in Chapter VI of the Act:
“Article 19. As soon as the Belgian State has received a request for the execution of a sentence or a custodial measure, the sentenced person is transferred to the prison facility where he or she has his or her habitual residence. »
Art. 12. Section 20, as follows, is included in Chapter VI of the Act:
“Article 20. § 1^er. Within twenty-four hours of his arrival at the penitentiary institution, the convicted person appeared before the King's attorney at the court of first instance of the place. The King's prosecutor proceeds to the hearing of the convicted person and to prepare a report, after consultation with the documents transmitted by the competent authorities of the State who pronounced the conviction. The consent of the convicted person to the execution of the sentence or a custodial measure of foreign freedom in Belgium is not required. The convicted person is assisted by counsel, either if requested, or if the King's prosecutor considers it necessary given the mental state or age of the convicted person.
§ 2. Where applicable, the Crown Prosecutor orders the immediate incarceration of the convict or his placement in the psychiatric schedule of the penitentiary institution, where the custodial measure imposed abroad is the same as that provided for in chapter II of the Social Defence Act of 9 April 1930 with respect to abnormals and ordinary offenders. »
Art. 13. Section 21, which reads as follows, is included in Chapter VI of the Act:
“Article 21. Where the measure imposed abroad is the same as that provided for in chapter II of the Act of 9 April 1930 of Social Defence in respect of abnormals and ordinary offenders, the Crown Prosecutor shall promptly refer to the social defence commission established with the psychiatric annex where the convicted person was placed, so that the commission shall designate the institution in which the internating takes place. »
Art. 14. Section 22, which reads as follows, is included in Chapter VI of the Act:
“Article 22. § 1^er. When the penalty or deprivation of liberty imposed abroad does not correspond, by its nature or its duration, to that provided for by Belgian law for the same acts, the King's prosecutor promptly seizes the court of first instance and requires the adaptation of the sentence or measures to that provided for by Belgian law for a similar offence. The appropriate penalty or custodial measure must, with respect to its nature, correspond to the penalty or custodial measure imposed by the sentencing abroad, and the latter cannot in any case be aggravated.
§ 2. The court shall rule in the month in accordance with the criminal procedure. His decision is subject to appeal. However, it is immediately enforceable. »
Art. 15. Section 23, as follows, is included in Chapter VI of the Act:
“Article 23. The execution of the sentence or the measure of deprivation of liberty is governed by Belgian law, subject to the derogatory provisions of the international convention or the international treaty which is the basis of the transfer of execution of the sentence. »
Art. 16. Section 24, as follows, is included in Chapter VI of the Act:
“Article 24. No prosecution can be carried out and no conviction can be executed on the basis of the facts on which a person has been sentenced abroad to a penalty or deprivation of liberty whose execution occurs in Belgium, following the transfer of execution of the sentence. »
Art. 17. Section 25, as follows, is included in Chapter VI of the Act:
“Article 25. The provisions of Chapters V and VI are not applicable to criminal convictions by default, except in the cases referred to in Article 18, § 2, when it is a default conviction that has acquired the force of judgment. »
Art. 18. The Act is supplemented by chapter VII, which includes sections 26 and 27, and is entitled to:
“Chapter VII. Execution abroad of penalties and custodial measures imposed in Belgium".
Art. 19. Section 26, as follows, is inserted in Chapter VII of the Act:
“Article 26. The Belgian State may, pursuant to an international convention or an international treaty, ask a foreign State:
1° to carry out, in addition to the resumption of supervision, the possible revocation of the conditional suspension, conditional suspension or conditional release and, if necessary, to enforce the penalty or custodial measure imposed in Belgium. Revocation, if any, if the person under surveillance violates surveillance measures;
2° to execute a sentence or a custodial measure pronounced in Belgium, if the sentenced person tries to escape the execution or continuation of the execution of this sentence or measure of deprivation of liberty by taking refuge in the territory of a State party to the international convention or to the international treaty that allows the resumption and transfer of execution. "
Art. 20. Section 27, as follows, is included in Chapter VII of the Act:
“Article 27. Penalties or custodial measures whose execution has been transferred to a foreign State may no longer be executed in Belgium unless the foreign State communicates that execution is refused or is impossible. »
CHAPTER III. - Amendments to the Act of 15 December 1980
on access to the territory, residence,
establishment and removal of aliens
Art. 21. In section 20 of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens, the following amendments are made:
1° to the first sentence of paragraph 1^eramended by the Act of July 15, 1996, the words "and section 21" are inserted between the words "international" and "the minister";
2° the first sentence of paragraph 2, is replaced by the following sentence:
"Without prejudice to Article 21, §§ 1^er and 2, the foreigner established in the Kingdom may, when he has seriously violated public order or national security, be expelled by the King, after the advice of the Aliens Advisory Commission. »
Art. 22. Section 21 of the Act is replaced by the following provision:
« § 1^er. In no case may be returned or expelled from the Kingdom:
1° the foreigner born in the Kingdom or arrived before the age of twelve and who has been there mainly and regularly since;
2° the recognized refugee.
§ 2. Unless there is a serious breach of national security, the Kingdom cannot be dismissed or expelled:
1° the foreigner who has been staying there regularly for at least twenty years;
2° the foreigner who has not been sentenced to a prison sentence of five years or more and who exercises parental authority as a parent or guardian or assumes the maintenance obligation referred to in Article 203 of the Civil Code with respect to at least one child who is in a regular residence in Belgium.
§ 3. Except in the event of a serious breach of public order or national security, the Kingdom shall not:
1° the foreigner who has been living there in a regular and uninterrupted manner for at least ten years;
2° the foreigner who fulfils the legal conditions to acquire Belgian nationality by option or by a declaration of nationality or to recover that nationality;
3° the foreigner, spouse not separated from the body of a Belgian;
4° the foreign worker with a permanent incapacity for work within the meaning of section 24 of the Act of 10 April 1971 or section 35 of the Acts relating to the repair of damages resulting from occupational diseases, coordinated on 3 June 1970, when the work accident took place or the occupational illness was contracted in the performance of the work benefit of a foreigner residing regularly in Belgium. »
Art. 23. Section 56 of the Act is repealed.
CHAPTER IV. - Entry into force
Art. 24. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 26 May 2005.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
The Minister of the Interior,
P. DEWAEL
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Regular session 2004-2005.
House of Representatives:
Parliamentary documents. - Bill No. 51-1555/1. - Amendments, n^bones 51-1555/2-5. - Report, no. 51-1555/6. - Text adopted by the Commission, No. 51-1555/7. - Amendments, No. 51-1555/8. - Text adopted in plenary and transmitted to the Senate, No. 51-1555/9.
Annales parliamentarians. - Discussion and adoption. Session of March 24, 2005.
Senate:
Parliamentary documents. - Project transmitted by the House of Representatives, No. 3-1113/1. Project not referred to by the Senate.