Brussels Labour Court of Appeals, B.A.M. v Republic of Indonesia, Nr. 2018/AB/868, 2 November 2021
The plaintiff, a former member of the service staff at the Indonesian embassy in Brussels, was challenging his dismissal. Affirming the appealed judgment, the Brussels Labour Court of Appeals upheld Indonesia’s State immunity from jurisdiction. With a view to determining the applicable rules of customary international law, the Court relied upon the United Nations Convention on Jurisdictional Immunities of States and Their Property. More specifically, it focused on Article 11(2)(e), which maintains the immunity where the employee is a national of the employer State – the plaintiff had indeed Indonesian citizenship. The Court considered that the limitation in Article 11(2)(e), that sets immunity aside where the employee has its permanent residence in the State of the forum, does not reflect an existing rule of customary international law. The Court went on to add that, in any event, the plaintiff had failed to demonstrate a permanent residence in Belgium at the time when the proceedings were instituted.
Brussels First Instance Tribunal, Labour Prosecutor et al. v X et al., Nr. 21.N.003187, 15 December 2021
A former diplomat and his wife are condemned in absentia for the crimes of human trafficking and unlawful imprisonment on account of their exploitation of a domestic worker. The Tribunal asserts that, pursuant to Article 39 of the Vienna Convention on Diplomatic Relations, a diplomat whose function has come to an end enjoys immunity only in respect of those acts that were performed in the exercise of this function. The exploitation of domestic workers in the diplomat’s private residence does not qualify as such, and is accordingly not covered by diplomatic immunity.
Supreme Court, X and X v Prosecutor, Nr. C.20.0482.N, 26 February 2021
In this case, two applicants instituted an appeal in cassation against a judgement of the Ghent Court of Appeal of 28 March 2019 denying their request for recognition as stateless persons. According to the Court of Appeal the applicants could not be regarded as stateless persons because they were considered as Palestinian nationals by the State of Palestine in accordance with applicable law. As the Palestinian law referred to was not specified in the judgment itself, the Court of Cassation quashed the judgment because of an inadequate statement of reasons.
AGENTSCHAP INTEGRATIE & INBURGERING, “HvC verbreekt arrest dat naar Palestijnse nationaliteitswetteving verwijst”, 2021, www.agii.be/nieuws/hvc-verbreekt-arrest-dat-naar-palestijnse-nationaliteitswetgeving-verwijst.
Liège First Instance Tribunal, X, Nr. 20/770/B, 5 February 2021
The Tribunal assessed wether a man of Palestinian origin, as well as his underage children, could be recognized as stateless persons. According to the Tribunal, the inconsistent Belgian case-law on the question whether Palestine qualified as a State rendered it necessary to refer to the position of the organ constitutionally competent in the matter, i.e., the Belgian federal government. In light of the government’s refusal to recognize Palestine as a State, any attempt at indirect recognition of Palestinian statehood by the judiciary was in vain. The Tribunal accordingly confirmed the applicants should be regarded as being stateless in the sense of the 1954 New York Convention.
Antwerp First Instance Tribunal, Prosecutor v A.S., N.N. et al, Nr. 20/A/3763, 4 February 2021
The Tribunal of First Instance imposes heavy prison sentences on four individuals of Iranian origin, including an diplomat accredited to the Iranian embassy in Austria, for planning a terrorist attack. The Tribunal finds that the diplomat cannot invoke immunity from jurisdiction under Article 31 VCDR, since this only applies in the bilateral relationship between the sending and the receiving State. In addition, the diplomat was not in transit in the sense of Article 40 VCDR. This provision must be read restrictively, and does not extend to situations where a diplomat is on a holiday abroad. The Tribunal also observes that the activities of which the diplomat is accused cannot form part of the normal diplomatic function, and that it cannot have been the intention of the States parties to the VCDR for such acts to be covered by diplomatic immunity.
According to the Tribunal, the immunity of Iran itself is not triggered since Iran or its secret service are not a party to the proceedings. With respect to the residual functional immunity of the diplomat as a State organ, the Tribunal asserts that such immunity extends only to acts performed in the exercise of official functions. The planning of a terrorist attack can be presumed not to be part of such tasks. Nor did Iran claim responsibility for this conduct. In any case, the Tribunal finds it difficult to accept that there is an exception to State immunity for commercial acts, but not for crimes against humanity that flout the basic right to life.