Tag: Article 6 ECHR

Sipos Szabo v NATO and the Kingdom of Belgium

On By In Labour Court of Appeal
Brussels Labour Court of Appeal, Sipos Szabo v North Atlantic Treaty Organization (NATO) and the Kingdom of Belgium, 2018/AB/22, Nr. 28 October 2020
ECLI:BE:CTBRL:2019:ARR.20190207.11

The case concerned a medical doctor who claimed an entitlement under NATO’s Civilian Personnel Regulation (CPR) to an indefinite contract and had brought its claims before NATO’s Administrative Tribunal. NATO’s Tribunal ruled it had no jurisdiction to entertain the claims because the plaintiff concluded successive sui generis contracts that NATO was entitled to offer. Those contracts did not bring the plaintiff within the realm of the CPR, while the jurisdiction of NATO’s Tribunal is limited to alleged breaches of the CPR. The plaintiff brought her claims before Belgian courts, host nation of NATO, and argued on the basis of ECtHR case-law relating to the interplay between the right to a judge and International Organizations’ immunity that NATO’s immunity must be set aside because she did not have access to an effective remedy within NATO’s legal system as NATO’s Tribunal declared itself without jurisdiction and arguably did not consider the merits of her claims. NATO’s immunity was upheld before Brussels’ Labour Tribunal and, on appeal, by the Brussels Labour Court of Appeal which agreed with NATO that the plaintiff’s argument was based on a wrong premise, that NATO’s internal justice system was effective and independent, that the plaintiff was heard and received an articulated legal answer to her claims following due process.

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Prosecutor v A.I., B.H. et al.

On By In Court of Appeal
Brussels Court of Appeal, Prosecutor v A.I., B.H. et al., Nr. 2017 FC 1, 26 February 2019

The case concerned several individuals accused of terrorist offences on account of their alleged involvement in a terrorist group operating in Chechnya. The Court held that Article 6(3)(a) ECHR (the right to a fair trial) does not imply that the indictment must state all the concrete information from which the existence of the personal involvement of the accused can be derived. In casu, the charges were sufficiently clear and unambiguous. The Brussels Court of Appeal held, however, that there were no indications that the defendants were indeed guilty of the crimes charged. Accordingly, there was no need to inquire whether the ‘terrorism exception’ of Article 141bis of the Belgian Criminal Code, relating to acts of armed forces during an armed conflict, was applicable.

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NML Capital Ltd & Yukos Universal Limited

On By In Constitutional Court
Constitutional Court, NML Capital Ltd & Yukos Universal Limited, Nr. 48/2017, 27 April 2017

The Constitutional Court examines two actions for annulment filed by the companies NML Capital and Yukos Universal against the law of 23 August 2015 introducing Article 1412quinquies of the Judicial Code, which provides for a far-reaching immunity from execution for property of foreign States or international organizations. In light of the case-law of the Strasbourg Court, the Court acknowledges that restrictions on the right to access to Court and the right to property that stem from immunity of execution for property of foreign States are accepted inasmuch as they reflect generally recognized international immunity rules. What is more, Article 19 of the 2004 UN Convention on State Immunity, while not yet in force, can be regarded as indicative of present international custom on States’ immunity from execution.
The Court notes that the requirement under Article 1412quinquies that a State waiver from immunity from execution be ‘express’ is in accordance with the aforementioned Convention and international custom. By contrast, the additional requirement that such waiver must also be ‘specific’ goes beyond what international custom posits inasmuch as this requirement of specificity applies not only to diplomatic property (including embassy bank accounts), consular property, property of special missions, or international organizations (which is permissible), but also to other property of a foreign State more generally. The provision is indeed annulled to the extent that it extends the specificity requirement to the latter. By contrast, the Court upholds the requirement in Article 1412 quinquies that any attachment of the property of a foreign State presupposes prior approval by the juge de saisie.

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VANDERSCHUREN, J., "Satisfecit constitutionnel partiel pour l’article 1412quinquies du Code judiciaire", JT 2018, afl. 6737, 560-564 and http://jt.larcier.be/ (6 july 2018).

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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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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