Act To Amend The Law Of May 23, 1990 On The Inter-State Transfer Of Sentenced Persons And The Act Of 15 December 1980 On Access To The Territory, Residence, Establishment And Removal Of Foreigners (1)

Original Language Title: Loi modifiant la loi du 23 mai 1990 sur le transfèrement interétatique des personnes condamnées et la loi du 15 décembre 1980 sur l'accès au territoire, le séjour, l'établissement et l'éloignement des étrangers (1)

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Posted the: 2005-06-10 Numac: 2005009465 SERVICE PUBLIC FÉDÉRAL JUSTICE May 26, 2005. -Act to amend the law of May 23, 1990, on the interstate transfer of sentenced persons and the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners (1) ALBERT II, King of the Belgians to all, present and to come, hi.
The Chambers have adopted and we endorse the following: chapter I:. -Available preliminary Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER II. -Amendments to the law of May 23, 1990 on the transfer of sentenced persons art. 2. the title of the law of May 23, 1990 on the inter-State transfer of sentenced persons is replaced by the following: "The inter-State transfer of sentenced persons Act, recovery and the transfer of supervision of conditionally sentenced conditionally or released conditionally and the resumption and transfer of execution of sentences and custodial measures".
S. 3. an article 5bis, worded as follows, shall be inserted in chapter II of the Act: 'Article 5bis. When an international instrument binding the prescribed Belgium, the consent of the sentenced person is not required, by way of derogation from article 1, paragraph 1, 3 °, when this person is the subject of a measure of expulsion or remission at the border or any other measure under which this person, once released, will no longer be permitted to stay on Belgian territory. However, the Government took its decision after taking into consideration the opinion of the sentenced person. » Art. 4. in article 8, paragraph 2, of the Act, the words "or, by way of derogation from article 1, paragraph 1, 3 °, notice" shall be inserted between the words "consent" and "of the person concerned" and the words "or, where appropriate, a copy of the measure of expulsion or delivery at the border, or any other equivalent measure," shall be inserted between the words "foreign judgment" and «» ', ordered the immediate detention.
S. 5. the Act is supplemented by a chapter V, including sections 15 to 17, and entitled as follows: "chapter v". Recovery and the transfer of supervision of conditionally sentenced or conditionally released persons. » Art. 6. an article 15, as follows shall be inserted in chapter V of the Act: 'Article 15. The Belgian State may, pursuant to an international agreement or an international treaty and provided that they comply with the measures and the conditions imposed in the foreign criminal judgment, support the supervision of conditionally sentenced or conditionally released persons. The resumption of monitoring does not require the consent of the person sentenced conditionally or released conditionally.
S.
7. an article 16 as follows shall be inserted in chapter V of the Act: 'Article 16. When the measures imposed surveillance abroad are not, by their nature or their duration, to those laid down by Belgian law for similar facts, the Prosecutor of the District of the home or residence of the person, seizes without delay the commission's probation, parole or, if the measure imposed in the requesting State is the same nature than that provided for in chapter II of the Act of April 9, 1930 social defence against the abnormal and the usual offenders, Social Defence Committee. The Prosecutor requires adaptation of the monitoring measures imposed the measures provided for in Belgian law for an offence of the same nature. Surveillance measures handed down abroad may not be aggravated in their nature and duration.
The commission's probation, parole board or, where appropriate, the Social Defence Committee statue in the month in accordance with the applicable procedure. However, the decision is immediately enforceable. ».
S. 8. an article 17 as follows shall be inserted in chapter V of the Act: "Article 17. The Belgian State may, pursuant to an international agreement or an international treaty, apply to a foreign State to resume the monitoring of persons convicted conditionally or freed conditionally in Belgium. The transfer of the surveillance does not require the consent of the person sentenced conditionally or released conditionally.
S.
9. the Act is supplemented by a chapter VI, comprising sections 18 to 25, and entitled as follows: "chapter VI. Execution in Belgium of punishment and custodial measures handed down abroad. » Art. 10. a section 18, as follows shall be inserted in chapter VI of the Act: "Article 18. § 1. A foreign State may, under any international convention or international treaty, apply to the Belgian State of: 1 ° carry out, in addition to the exercise of supervision on the person convicted conditionally or released conditionally, to the possible revocation of the decision of conditional suspension or conditional sentence to the penalty or deprivation of liberty, or the revocation of parole. Revocation is possible only if the person placed under surveillance violates the surveillance measures.
If necessary, the Belgian State will make the resumption of the execution of the sentence or deprivation of liberty;
2 ° carry out the resumption of the execution of a sentence or a measure involving the deprivation of liberty, if the convicted person is of Belgian nationality or may be considered, in accordance with article 3, as a Belgian national and he tries to evade the execution of the sentence in the State where he was sentenced by taking refuge on Belgian territory before undergoing completeness of his conviction.
§ 2. The judicial decision taken in application of article 6, 4 ° of the Act of 19 December 2003 on the European arrest warrant carries the resumption of execution of the sentence or deprivation of liberty referred to in the judicial decision. The penalty or deprivation of liberty is executed in accordance with the provisions of this Act.
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3. "In the cases referred to in §§ 1 and 2 and in accordance with the provisions of article 22, the punishment or measure involving the deprivation of liberty imposed abroad against a person within the territory of the Kingdom is directly and immediately enforceable in Belgium.
S.
11. an article 19 as follows shall be inserted in chapter VI of the Act: «Article 19. As soon as the Belgian State received a request for enforcement of a sentence or deprivation of liberty, the convicted person is transferred to the prison of the place where he has his habitual residence.
» Art. 12. a section 20, as follows shall be inserted in chapter VI of the Act: "Article 20. § 1. Within 24 hours of his arrival in the prison, the convicted person appears before the Crown Procurator at the Court of first instance of the place. The Prosecutor proceeded to hearing of the convicted person and draws up minutes, after consultation of the documents transmitted by the competent authorities of the State which pronounced the sentence. The consent of the convicted person in execution of the sentence or foreign custodial measure in Belgium is not required. The convicted person is assisted by a Council, if it so requests or if the Prosecutor considers it necessary given the mental condition or the age of the convicted person.
§ 2. Where appropriate, the Prosecutor ordered immediate of the convicted person or his incarceration placement psychiatric prison, when pronounced deprivation abroad is of the same nature than that provided for in chapter II of the Act of April 9, 1930, of defence of society against the abnormal and offenders usually scheduled. » Art.
13. an article 21, as follows shall be inserted in chapter VI of the Act: "Article 21. When pronounced abroad measurement is of the same nature as laid down in chapter II of the Act of April 9, 1930, of defence of society against the abnormal and offenders than usual, the Attorney of the King seizes the commission of social defence attached to psychiatric annex where the person has been placed without delay, so that the commission means the establishment which will take place the internment. » Art. 14. an article 22, as follows shall be inserted in chapter VI of the Act: 'Article 22. § 1. When the penalty or deprivation imposed abroad does not, by its nature or duration, to the statutory Belgian for the same facts, the prosecutor seized without delay the Court of first instance and requires the adaptation of the sentence or to that provided for by the Belgian for an offence of the same nature law. The penalty or adapted custodial measure shall, in relation to its nature, correspond as much as possible to the punishment or measure involving the deprivation of liberty imposed by the conviction abroad, and the latter cannot in any case be aggravated.
§
2. The tribunal shall decide in accordance with the criminal procedure. Its decision is subject to appeal. However, it is immediately enforceable. » Art. 15. a section 23 as follows shall be inserted in chapter VI of the Act: 'Article 23. Execution of the sentence or deprivation of liberty is governed by Belgian law, subject to the derogations

the international convention or international treaty which is the basis for the transfer of the execution of the sentence. » Art. 16. an article 24, as follows shall be inserted in chapter VI of the Act: "Article 24. No prosecution shall be exercised and no condemnation can be executed for the acts on the basis of which a person has been sentenced abroad to a sentence or a deprivation of liberty whose execution occurs in Belgium, following the transfer of the execution of the sentence. » Art. 17. a section 25 as follows shall be inserted in chapter VI of the Act: "Article 25. The provisions of chapters V and VI shall not apply to convictions by default, except in the cases referred to in article 18 § 2, when it comes to a default conviction having acquired force of res judicata. » Art.
18. the Act is supplemented by a chapter VII, including sections 26 and 27, and entitled as follows: "Chapter VII. "Enforcement abroad of the sentences and custodial measures imposed in Belgium.
S. 19. an article 26 as follows shall be inserted in Chapter VII of the Act: «Article 26. In application of an international convention or international treaty, the Belgian State can request a foreign State: 1 ° to proceed, in addition to the resumption of monitoring, the possible revocation of conditional suspension, the conditional sentence or parole and, where appropriate, to run the punishment or measure involving the deprivation of liberty imposed in Belgium. Shall, where appropriate, be made revocation if the person placed under surveillance violates the surveillance measures;
2 ° to execute a sentence or a measure involving the deprivation of liberty imposed in Belgium, if the convicted person attempts to evade execution or prosecution of the execution of this sentence or measure involving the deprivation of liberty by taking refuge in the territory of a State party to the international convention or the international treaty that allows the resumption and the transfer of enforcement. ».
S. 20. an article 27, as follows shall be inserted in Chapter VII of the Act: "Article 27. Sentences or measures involving deprivation of liberty whose execution has been transferred to a foreign State can no longer be executed in Belgium, unless the foreign State shall communicate 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 arts 21A article 20 of the Act of 15 December 1980 on access to the territory, residence, establishment and expulsion of foreigners, the following changes are made: 1 ° to the first sentence of paragraph 1, as amended by law 15 July 1996, the words "and article 21" are inserted between the words "international" and ", the Minister";
2 ° the first sentence of paragraph (2), is replaced by the following: ' without prejudice to article 21, §§ 1 and 2, established in the Kingdom abroad can, when it has seriously prejudiced public order or national security, be expelled by the King, after receiving the opinion of the Advisory Commission on aliens. ''
S. 22. article 21 of the Act is replaced by the following provision: «§ 1.»
Cannot under any circumstances be returned or expelled from the Kingdom: 1 ° foreign born or arrived before the age of twelve years and which has mainly and regularly stayed since;
2 ° the recognized refugee.
§ 2. Except in the case of serious breach of national security, cannot be returned or expelled from the Kingdom: 1 ° abroad that stayed regularly for twenty years at least.
2 ° abroad that was not sentenced to a term of imprisonment equal to or more than five years and who exercise parental authority as a parent or guardian or assumes the obligation of maintenance referred to in article 203 of the civil Code towards at least a child staying in a regular manner in Belgium.
§ 3. Except in the case of serious infringement of public order or national security, cannot be returned to the Kingdom: 1 ° an alien who stayed in a regular and uninterrupted manner for at least a decade;
2 ° the foreigner who meets the legal requirements to acquire Belgian nationality by option or by a declaration of nationality or to recover that nationality;
3 ° abroad, husband not separated from body of a Belgian;
4 ° the foreign worker with a permanent incapacity of work within the meaning of article 24 of the Act of 10 April 1971 or article 35 of laws relating to compensation for damage resulting from occupational diseases, coordinated on 3 June 1970, when the accident at work occurred or the occupational disease was contracted in the performance of the work of an alien lawfully resident in Belgium. » Art. 23. article 56 of the Act is repealed.
CHAPTER IV. -Entry into force art. 24. this Act comes into force the day of its publication in the Moniteur belge.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
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 sealed with the seal of the State: the Minister of Justice, Ms. L. ONKELINX _ Notes (1) Regular Session 2004-2005.
House of representatives: parliamentary Documents.
-Bill, no. 51 - 1555/1. -Amendments, Nos. 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 meeting and transmitted to the Senate, no. 51-1555/9.
Parliamentary Annals. -Discussion and adoption.
Meeting of March 24, 2005.
Senate: Parliamentary Documents. -Draft transmitted by the House of representatives, no. 3-1113/1. Project not referred by the Senate.

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