Category: Court of Appeal

Prosecutor v X

On By In Court of Appeal
Brussels Court of Appeal, X v Prosecutor, Nr. 2017/FA/707, 5 June 2018

The Brussels Court of Appeal states that according to article 1.1° of the 1954 Statelessness Convention, a person who is not considered a national by any State constitutes a stateless person. In assessing the statehood of Palestine, the Court takes into account the four criteria established in the 1933 Montevideo Convention and holds that, in accordance with the declaratory theory, the political existence of a State is not contingent on its recognition by other States. The Court determines that, based on these elements, Palestine must be considered as a ‘State’ hic et nunc.

According to the Court, the alleged absence of a Palestinian nationality legislation does not imply that the defendant ought to be regarded as a stateless person. Instead, what matters is that the State of Palestine considers the defendant as a Palestinian citizen by virtue of applicable national law. In particular, the defendant’s UNRWA Registration Card indicates Palestinian descent, whereas individuals of Palestinian origin and their descendents who sought refuge in Lebanon following the establishment of the State of Israel are recognized as nationals by the Palestinian National Authorities. It follows that the defendant is not a stateless person in the sense of the 1954 Convention.

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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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