Brussels Court of Appeal, Kingdom of Belgium v E. M., Nr. 2020 KR 3, 5 March 2020
This case concerns a Belgian woman who had travelled to Syria to join her partner and claimed to have given birth to a son there. Held in the camp of Al-Hol, operated by the Kurdish authorities, she sued the Belgian State to repatriate her son and herself from Syria. The Court of Appeal of Brussels ruled that the guidelines issued by the Ministry of Foreign Affairs providing for the repatriation of all Belgian children up to ten years old from Syrian territory created a subjective right prone to judicial review. Further, having regard to Article 22bis(4) of the Belgian Constitution as well as Article 3(1) of the Convention of the Rights of the Child, the government’s discretionary power to exercise the right to consular assistance was limited by the child’s best interests. Having regard to the fact that the Kurdish authorities controlled the Al-Hol camp and could determine the modalities for repatriation, the Court found that Belgium did not exercise extraterritorial jurisdiction in the sense of the ECHR or the ICCPR. Nor did the human right to enter one’s own country entail a positive obligation on the part of the State to ensure repatriation.
L. DE BRUCKER, “Het recht op consulaire bijstand vanuit nationaal-, Europees- en internationaalrechtelijk perspectief. Naar een subjectief recht op repatriëring voor kinderen van Syriëstrijders?”, Tijdschrift voor Jeugd- en Kinderrechten 2020, 194-210.
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019
Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.
The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.
In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.
Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.