Year: 2022

F.H. et al. v Kingdom of Belgium

On By In Constitutional Court
Constitutional Court, F.H et al. v Kingdom of Belgium, Nr. 163/2022, 8 December 2022
ECLI:BE:GHCC:2022:ARR.163

In March 2022, Belgium and Iran concluded a treaty pertaining to the transfer of convicted persons, meant to allow persons sentenced in one country to serve the remainder of their prison sentence in the territory of the other. The Belgian law approving the treaty was, however, challenged on the basis of the right to life. In particular, the applicants asserted that the treaty was meant to enable the exchange of Assadollah Assadi, an Iranian diplomat convicted in Belgium in connection with a failed State-sponsored terrorist attack against a meeting of Iranian opposition groups, against the Belgian aid worker Olivier Vandecasteele, who had been detained in Iran for unknown charges.

According to the Court, Belgium was or should be aware that if it transferred Assadi, Iran would not execute the sentence, but would instead grant him a pardon or amnesty pursuant to Article 13 of the Treaty. In such circumstances, the Court held that such transfer would violate the right to life of the victims of the foiled terrorist bombing. The Court thereby relied on the Strasbourg Court’s case law according to which the execution of a sentence that is imposed in the context of the right to life must be considered an integral part of the State’s procedural obligation under Article 2 of the ECHR. In conclusion, pending a definitive ruling on its constitutionality, the Court suspended the law in so far as the treaty permitted the transfer to Iran of persons that have been convicted for committing a terrorist offence with the support of Iran.

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X v Kingdom of Saudi Arabia

On By In First Instance Tribunal
Ghent First Instance Tribunal, X v Kingdom of Saudi Arabia, Nr. 18/3932/A, 17 October 2022

A Belgian businesswoman sought compensation from the Kingdom of Saudi Arabia, claiming in particular that an official press release, in which she had been presented as  being unreliable, had caused her financial and moral damage. The Court held, however, that the passing on of information on the applicant by the Saudi Embassy in Belgium to the Saudi Ministry of Trade and Industry constituted an act ‘jure imperii’, benefiting from State immunity. By reference to Article 12 of the 2004 UN Convention on State Immunity and the preparatory works of the International Law Commission, the Court further held that the ‘territorial tort’ exception does not apply to reputational damage and was accordingly inapplicable. In turn, the publication of a press release on the applicant within Saudi Arabia did not fall within the jurisdiction of the Belgian courts.

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H.S.

On By In Supreme Court
Supreme Court, H.S., Nr. P.22.0053.N, 14 June 2022

The Belgian Supreme Court rejects the claim that the judgment of the Antwerp Court of Appeal of 22 December 2021 violated the duty to state reasons by holding, on the one hand, that Islamic State (IS) qualified as a ‘terrorist group’ in the sense of Articles 139 and 140 of the Criminal Code, pertaining to the prosecution of terrorist offences, but did not constitute ‘armed forces’ in the sense of Article 141bis of the same Code (which excludes members of armed forces involved in an armed conflict from prosecution for terrorist offences). The Supreme Court held that the notion of ‘armed forces’ in the sense of Article 141bis must be understood in light of the requirements of intensity and organization under international humanitarian law (IHL), and is distinct from the notion of ‘terrorist group’. The Supreme Court recalls the various reasons that led the Antwerp Court of Appeal to conclude that IS lacked the required degree of organization to be considered an ‘armed force’, including e.g. the lack of a single headquarters or command structure; the large number of foreign fighters operating without a clear overarching command, or; the practice of random detentions in lieu of disciplinary rules as envisaged under IHL. The Supreme Court concludes that the contested judgment was duly motivated.

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