Search database

A. v Belgium

On By In Supreme Court
Supreme Court, A. v Belgium, Nr. P.25.1072.N, 29 July 2025

A former diplomat challenged the lawfulness of a house search on 17 June 2025 and her subsequent detention. She argued that while her diplomatic functions had ended on 27 November 2024, she continued to enjoy diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations (VCDR) as her Belgian residence permit remained valid and no explicit notification had been given regarding the expiry of the “reasonable period” to leave Belgium, as referred to in Article 39 (2) VCDR. She further contended that the search was invalid because her residence formed part of the inviolable premises of the mission under Article 22 VCDR.

The Court of Cassation found the latter plea to be inadmissible as it concerned a factual assessment for which it was not competent.

As to the former plea, the Court of Cassation held that the determination of the “reasonable period” under Article 39(2) falls within the autonomous assessment of the receiving State’s judiciary and does not require formal notification to the diplomat, nor a prior decision by the sending State. The existence of a residence permit does not bind the judge when assessing the expiry of immunity. Once the reasonable period has lapsed, immunity – including inviolability and protection from arrest – ceases to apply. As a result, the Court confirmed that the claimant no longer benefited from diplomatic immunity at the time of the search and rejected the appeal.

Download

G. v Belgium

On By In Board for Maritime Investigation
Board for Maritime Investigation, G. v Belgium, Nr. 3109, 3 June 2025

Following severe budget cuts, the Belgian Ministry of Defence could only provide the Belgian State-owned oceanographic vessel RV Belgica with three military crew members. To operate the vessel – which sails under a Belgian flag and under Navy operational command – a public tender was awarded to a French operator (G), which assumed responsibility for management and crewing. Following complaints about labour conditions, Belgian authorities identified serious breaches of the 2006 Maritime Labour Convention (MLC), revoked the vessel’s MLC certificate and eventually prohibited the vessel from sailing on 27 June 2024.

G. challenged this decision, arguing that the Belgica fell outside the MLC’s scope as a naval auxiliary and therefore benefited from the exemption in MLC art. II(4). Observing that the vessel could not meet the definition of a warship under art. 29 UNCLOS (given the composition of its crew), the Board rejected this argument and held that, under MLC art. II (5) and art. 4 §3 of the Belgian Law of 13 June 2014, in cases of doubt regarding a vessel’s inclusion, the determination rests with the flag State’s competent authority after consultation with shipowner and seafarer representatives. In casu, the Belgian Directorate-General for Shipping (the competent authority), after consultation with Commission paritaire 316, had validly determined that the vessel fell within the MLC regime, given its predominantly civilian crew and minimal military complement. G., designated as the “shipowner,” was therefore bound by its obligations under the 2006 MLC. The sailing ban was upheld and the appeal dismissed.

Download

I. à X. E. N. v Prosecutor

On By In Supreme Court
Supreme Court, I. à X. E. N. v Prosecutor, Nr. P.24.1012.F/1, 18 December 2024

The judgment concerns (among others) an appeal in cassation by a person who was found guilty by the Court of Assizes of the Judicial District of Brussels of genocide and war crimes committed in Rwanda between 9 April and 28 May 1994. The applicant claimed that the conviction for genocide violated the principle of legality in criminal law (inter alia Article 7 ECHR), since Belgian criminal law did not formally criminalize genocide at the time the acts were committed (but did so only as of 1999).

The Supreme Court dismissed the claim since the conviction was based on international law already in force at the time of the acts, namely the 1948 Genocide Convention, ratified by Belgium in 1951. The Court held that this convention defines the offence with sufficient clarity and confirms the existence of an international custom that is binding on States, including within their domestic legal order. Accordingly, the crime of genocide already formed part of the Belgian legal order before the entry into force of the dedicated legislation adopted in 1999. Furthermore, the Court held that whereas the Genocide Convention does not explicitly prescribe penalties, the national judge could determine the sentence under domestic criminal provisions, such as those relating to murder, since the killing of members of the targeted group constitutes one of the constitutive elements of genocide.

Download

L., M. et al. v Kingdom of Belgium

On By In Court of Appeal
Brussels Court of Appeal, L., M. et al. v Kingdom of Belgium, Nr. 2022/AR/262, 2 December 2024

This judgment overturns an earlier ruling of the Brussels First Instance Tribunal of 8 December 2021 (see here), in which the Tribunal rejected the claims for compensation against the Belgian State, lodged by five individuals of Congolese descent who had been forcibly removed from their mothers as children and placed in religious institutes on account of their mixed-race parentage between 1948 and 1961. The Court of Appeal overturned the judgement of the First Instance Tribunal on two fundamental grounds.

Firstly, with regard to the principle of legality, the Tribunal at first instance had held that, at the time the acts were committed, they did not yet qualify as crimes against humanity. The Court of Appeal rejected this reasoning. Relying on the Statute of the Nuremberg Tribunal, and UNGA resolution 95(I) of 1946, the Court held that the crime of humanity was recognized as an offence by the international community as of 1946. Further, notwithstanding the specific competence of the Nuremberg Tribunal, it was not confined to acts committed in situations of armed conflict. The fact that practices of racial segregation were not limited to Belgium at the time, and may have been institutionalized, moreover did not alter the fact that the abduction of young children solely for racial reasons qualified as a crime against humanity.

Secondly, concerning the issue of prescription, the First Instance Tribunal had found that the case was time-barred. This conclusion was also overturned on appeal. Since the acts were now qualified as crimes against humanity (offences that are not subject to statutory limitation) the Court of Appeal indeed held that prescription could not serve as a ground to bar the proceedings.

In the end, the Belgian government was ordered to pay EUR 50.000 compensation to each of the five “enfants métis” (increased with compensatory interest).

Download

A.C. v NATO and Belgium

On By In Supreme Court
Supreme Court, A. C. v NATO and Belgium, Nr. C.20.0313.F/1, 7 November 2024

In a judgment of 23 November 2017, the Brussels Court of Appeals upheld NATO’s immunity from jurisdiction in tort proceedings brought by relatives of individuals killed during a NATO strike in Libya in 2011. A subsequent appeal in cassation against the judgment was dismissed by the Supreme Court.

The Supreme Court confirms that the immunity from jurisdiction of international organizations serves a legitimate purpose. Whether its application constitutes a proportionate restriction of the right to access to court in the sense of Article 6(1) ECHR must be determined, not on the basis of the nature of the substantive right that is allegedly breached, but in light of the existence of other reasonable means to protect the rights guaranteed by the ECHR. Such reasonable means can notably consist of remedies available in a country that does not grant immunity of jurisdiction to an international organization. What is more, as indicated by the Court of Appeals, an alternative remedy could exist in a judicial procedure brought against the NATO Member State that carried out the contested airstrikes. The fact that the latter State had not been identified, and that the Court of Appeal had not established a concrete possibility for the claimant to identify this State, was not deemed not alter the foregoing.

Multiple sub-branches addressed different procedural and legal grounds were all found inadmissible or without merit. Thus, the Supreme Court i.a. held that, for lack of direct effect in Belgium, the UN Security Council resolutions invoked by the claimant did not constitute a law the violation of which could underpin an appeal in cassation, and that relevant passages from UNSC resolutions did not constitute binding decisions in the sense of Article 25 UN Charter. In the end, the Supreme Court dismissed the appeal and concluded that NATO’s immunity stands and cannot be bypassed.

Download