Belgium: Council of State rules to suspend Royal Decree permitting the detention of children

Thursday, April 4, 2019

On the 4 April, the Belgian Council of State ruled to suspend a Royal Decree from 22 July 2018 which permitted the detention of children. The Decree amended a previous Royal Decree of 2 August 2002 and permitted the government to open family units in closed detention centres.

The case was submitted by a coalition of Belgian NGOs and called for the urgent suspension of the Royal Decree due to the irreversible damage inflicted on children, with particular regard to the 127bis Centre that is located close to Brussels Airport. The applicants submitted complaints regarding the infringement of, inter alia, Articles 5 and 17 of Directive 2008/115/EC, Articles 3, 5, 6 and 8 of the ECHR, the Convention on the Rights of the Child, as well as relevant domestic law.

The applicants submitted a list of the deficiencies in the amended Royal Decree in the protection and safeguards in place for families and children. The applicants allege, inter alia, that the facilities and infrastructure of the centre were inadequate for families, the best interests of the child were not taken into account, and that detention was not being used as a means of last resort. The applicants’ submissions relied on the Muskhadzhiyeva v. Belgium judgment, where the ECtHR had ruled that the family units in the 127bis Centre were not child-friendly places of detention.

The Court established that the Centre failed to respect the rights under Article 8 of the ECHR, particularly with regard to the access of staff to the rooms, and the requirements under the Convention on the Rights of the Child that the child is consulted before any decision concerning them is adopted. With reference to the case of RM and others v. France, the Court found that the family units in the 127Bis Centre exposed children of a detained family to significant noise pollution due to the location of the centre close to the runway of Brussels airport. It was also found that beyond the detention of a child for a very brief duration, the exposure of the child to this noise pollution exceeded the severity threshold required for a violation of Article 3 of the ECHR. 

The Court ruled against the detention of young children in a place where they are exposed to significant noise nuisances and suspended the Royal Decree of 22 July 2018.  

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Best interest of the child
Child Specific Considerations