Year: 2016

Federal Prosecutor, Republic of Turkey and F.A. v U.S., K.R. et al.

On By In First Instance Tribunal
Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016

The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.

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M.R. v La Posterie

On By In Supreme Court
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016
ECLI:BE:CASS:2016:ARR.20161028.6

The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.

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M.E.Y. v O.R.V. / F.B. v Politiezone nr. 5340 Brussel-West, D.B. et al

On By In Supreme Court
Belgian Supreme Court, M.E.Y. v O.R.V.; F.B. v Politiezone nr. 5340 Brussel-West, D.B. et al, Nr. P.16.0244.N, 24 May 2016
ECLI:BE:CASS:2016:ARR.20160524.5

The case concerns an action for annulment brought against a judgment of the Antwerp Court of Appeals finding the applicants guilty of terrorist offences under the Belgian Criminal Code in connection with their involvement in islamist terrorist groups abroad. In particular, the applicants unsuccesfully raise breaches of Article 3 of the Geneva Conventions, Article 141bis of the Belgian Criminal Code, Article 7 ECHR and the principle of legality. All claims are, however, dismissed by the Supreme Court.

Pursuant to Article 141bis of the Criminal Code, the provisions pertaining to terrorist offences do not apply to the conduct of armed forces during an armed conflict. Such ‘armed conflict’ exists whenever when there is armed violence between States or protracted armed violence between State authorities and organized armed groups or between such groups within a State. The existence of a non-international armed conflict is determined primarily in light of the intensity of the conflict and the degree of organization of the parties involved. Other criteria cited by international jurisprudence are merely indicative criteria that can be used to interpret the requirements of intensity and organization. The appraisal of these criteria in a given case is a matter for the judge of the merits, and is not subject to review by the Supreme Court (as long as proper statement of reasons is provided).

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V. et al v the Holy See

On By In Court of Appeal
Ghent Court of Appeal., V. et al v the Holy See, Nr. 2013/AR/2889, 25 February 2016

Following the 2013 ruling by the Court of First Instance, the Ghent Court of Appeal confirms that the Holy See enjoys immunity from jurisdiction in a case brought by multiple victims of sexual abuse by catholic priests, since the Holy See is expressly recognized by Belgium as a state or at least as a foreign sovereign enjoying the same rights and obligations as a state.
The Court disagrees with the appellants’ argument that the Holy See enjoys state immunity only when acting int its capacity as the government of Vatican City, but not when acting in its capacity as the government of the Roman Catholic Church.
The Court further dismisses the appellants’ argument that the Holy See does not qualify as a state as it does not meet the requirements under Article 1 of the 1993 Montevideo Convention. In particular, the Court emphasizes that the Holy See is recognized ‘de jure’ as a state by Belgium. Moreover, the Holy See, as a governmental body, can claim immunity from jurisdiction based on Article 2 of the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which reflects customary international law.
The Court asserts that the Holy See’s alleged policy errors must be qualified as ‘acta jure imperii’ which are covered by jurisdictional immunity. In this regard, the Court rules that the territorial tort exception in Article 11 of the 1972 European Convention on State Immunity does not apply to ‘acta jure imperii’ and that, moreover, the conditions of that provision are not met. Similarly, the territorial tort exception laid down in Article 12 of the 2004 UN Convention cannot be considered to reflect customary international law with regard to ‘acta jure imperii’, and its conditions are not met in the current case. Finally, the Court dismisses the appellants’ arguments that granting immunity from jurisdiction would breach their right to access to justice as guaranteed under Article 6(1) of the ECHR.

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