Category: Supreme Court

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.

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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.

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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.

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B. A. M. vs Republic of Indonesia

On By In Supreme Court
Supreme Court, B. A. M. vs Republic of Indonesia, Nr. S.22.0043.F, 8 April 2024

The case concerns an appeal in cassation against a judgment of the Brussels Labour Court of Appeal which had upheld the immunity of Indonesia in an employment dispute lodged by an Indonesian national formerly employed at the embassy in Brussels (see here). In particular, the claimant argued that the Labour Court had erred in law by holding that Article 11(2)(e) of the UN Convention on State Immunity (UNCSI) does not reflect customary international law insofar as it conditions the application of State immunity in employment disputes between a foreign State and a national of that State on the latter person not having permanent residence in the forum State.

Rather than addressing the specific provision of the UNCSI, the Supreme Court reaffirmed that State immunity attaches only to acts performed in the exercise of public powers (acta jure imperii), to the exclusion of acta jure gestionis.

The Supreme Court further emphasized that there is no rule of customary international law according to which the exception to State immunity for acta jure gestionis would not apply when the claimant is a national of the foreign State, regardless of the claimant’s permanent residence. Accordingly, the claim asserting that customary international law prevents the forum State from exercising jurisdiction over a foreign State in matters relating to its acta jure gestionis, at least when the claimant is a national of that foreign State residing permanently in the forum State, was deemed unfounded in law.

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C.C. v A.P.

On By In Supreme Court
Supreme Court, C.C. v A.P., Nr. C.21.0470.F, 26 January 2024

Does Article 3.1 of the UN Convention on the Rights of Children (‘CRC’) have direct effect? This issue was at the heart of the judgment of the Supreme Court of 26 January 2024. In a short judgment, the Court answered that question in the negative and quashed the decision of the Court of Appeal of Liège.

The case concerned two (divorced) parents who were in dispute over their child’s housing and education. In support of his application, A.P. (the defendant party), had produced certain documents taken from the child’s youth case file. Although this contravened Article 27, §5 of the Code on Prevention, Youth Support and Youth Protection, the Court of Appeal had nevertheless admitted these documents to the procedure, as it considered that ‘[a] child’s life forms a whole, even if, from a legal or psychosocial level, different authorities are each responsible to deal with a part of its existence’. It based its reasoning on Art. 3.1 CRC, which stipulates that all decisions concerning children must be taken in their best interests. As it considered it in the best interests to have of as much information as possible, the Court of Appeal gave precedence to Article 3.1 over the aforementioned provision of domestic law.

In its judgment, the Supreme Court recalls that, for an international norm to have direct effect, two conditions must be fulfilled: the norm must be (i) sufficiently precise and (ii) complete. Article 3.1 CRC, however, does not fulfil these conditions, as it leaves the State with several options for meeting the requirements of the child’s best interests. The Court did not provide any further explanation, but has spoken out on this matter in other judgments (Cass., 2 March 2012, C.10.0685.F, Pas., 2012, n° 145 ; Cass., 4 November 1999, C.99.0048.N, Pas., 1999, n° 588, et Cass., 4 November 1999, C.99.0111.N.). In the end, the Court concluded that Article 3.1 CRC cannot serve as a source of subjective rights or obligations for individuals, and cannot override domestic law.

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