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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X {Ex parte}

On By In First Instance Tribunal
Bruges First Instance Tribunal, X, 14/1508/B, 23 November 2015

The Tribunal examined a request of a man of Palestinian origin seeking recognition as a stateless person. Since statelessness presupposes an absence of ‘nationality’, and ‘nationality’ in turn necessitates a connection between an individual and a ‘State’, the Tribunal needed to determine whether Palestine qualified as such. Starting from the four cumulative conditions of the 1933 Montevideo Convention, the Tribunal accepts that Palestine fulfills the requirements of a permanent population and a defined (even if fragmented) territory. By contrast, it is less clear whether the Palestinian National Authority (PNA) qualifies as an ‘effective government’, since it only has limited powers and Israel still controls their airways, external borders, territorial waters, national registrations, taxes and functions in the government itself. In any case, according to the Tribunal, fulfillment of the Montevideo criteria is ‘manifestly meaningless’ if the Palestinian State is not internationally recognized. As a significant number of countries, including Belgium itself, has not recognized Palestine as such, the Tribunal cannot under present circumstances establish the existence of a sovereign Palestinian State. It follows that the applicant cannot be seen as having the ‘Palestinian nationality’ and must be regarded as being stateless.  

Rb. Brugge 23 november 2015, T.Vreemd 2016, afl. 2, 223.
AGENTSCHAP INTEGRATIE EN INBURGERING, “Palestijnse nationaliteit wordt niet erkend, staatloosheid dus niet uitgesloten”, T.Vreemd 2016, 509-510.
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R.J.V.D.B. v Imerial Tomacco Ltd. and Gallagher Ltd.

On By In Supreme Court
Supreme Court, R.J.V.D.B. v Imperial Tobacco Ltd. and Gallagher Ltd, Nr. 14.0414.N, 26 May 2015

In this case, the claimant seeks annulment of a judgment of the Antwerp Court of Appeal, inter alia on the basis of an alleged breach of Article 22(3) of the Vienna Convention on Diplomatic Relations (VCDR). In particular, the claimant argues that a vehicle of the Ivorian embassy in London with a British diplomatic license plate be immune from search and seizure in the context of a criminal investigation in Belgium.  The Supreme Court recalls that Art. 22(3) VCDR regulates mutual obligations between the sending and receiving States. By contrast, neither Article 22(3) nor article 40 VCDR provide immunity from investigation or seizure of a means of transportation of a diplomatic mission that is not accredited in Belgium.

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NML Capital Ltd v Republic of Argentina

On By In Supreme Court
Belgian Supreme Court, NML Capital Ltd v Republic of Argentina, Nr. C.13.0537.F, 11 December 2014
ECLI:BE:CASS:2014:ARR.20141211.4

According to the Court, the right of access to court, as enshrined in Article 6 ECHR, cannot be invoked to force a State to set aside the customary rule of immunity from execution, which seeks to ensure the proper functioning of diplomatic missions and to promote friendly relations between sovereign States. The Court rejects the argument that immunity from execution must be set aside when no alternative means of legal redress are available.

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F.H-E. v Kingdom of Belgium, Belgocontrol et al.

On By In Supreme Court
Supreme Court, F.H.-E. v Kingdom of Belgium, Belgocontrol et al., Nr. C.11.0521.F, 4 April 2014

After the bankruptcy of Air Zaïre, the Congolese minister of transportation designated Scibe Airlift as the temporary instrument of exploitation of the DCR’s air traffic rights under the 1965 air services agreement between the DCR and Belgium. This designation was subsequently approved by his Belgian colleague.

The bankruptcy curator for Air Zaïre challenged the latter move, arguing that the approval constituted a fault within the meaning of article 1382 of the Belgian civil code, as the abovementioned agreement, which had not been made public, designated Air Zaïre as the holder of DCR’s air traffic rights.

The Supreme Court recalled the judgement of the Court of Appeal, which held that, by accepting the designation of Scibe Airlift, Belgium had simply complied with its obligations under the 1965 agreement; that a State which signs an international treaty must implement that treaty in good faith and cannot therefore be accused of wrongdoing when it fulfils those obligations; and that the claimant had argued in vain that the Belgian State had deprived her of her rights and could not have done so by virtue of an undisclosed treaty, which could not be held against it. By so doing, the Court of Appeal had merely raised against the claim before it the limits which Article III of the 1965 placed on the right that the claimant sought to derive from that provision. The action for annulment was accordingly dismissed.

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