Tag: Immunity from jurisdiction

A.C. v NATO and Belgium

On By In Supreme Court
Supreme Court, A. C. v NATO and Belgium, Nr. C.20.0313.F/1, 7 November 2024

In a judgment of 23 November 2017, the Brussels Court of Appeals upheld NATO’s immunity from jurisdiction in tort proceedings brought by relatives of individuals killed during a NATO strike in Libya in 2011. A subsequent appeal in cassation against the judgment was dismissed by the Supreme Court.

The Supreme Court confirms that the immunity from jurisdiction of international organizations serves a legitimate purpose. Whether its application constitutes a proportionate restriction of the right to access to court in the sense of Article 6(1) ECHR must be determined, not on the basis of the nature of the substantive right that is allegedly breached, but in light of the existence of other reasonable means to protect the rights guaranteed by the ECHR. Such reasonable means can notably consist of remedies available in a country that does not grant immunity of jurisdiction to an international organization. What is more, as indicated by the Court of Appeals, an alternative remedy could exist in a judicial procedure brought against the NATO Member State that carried out the contested airstrikes. The fact that the latter State had not been identified, and that the Court of Appeal had not established a concrete possibility for the claimant to identify this State, was not deemed not alter the foregoing.

Multiple sub-branches addressed different procedural and legal grounds were all found inadmissible or without merit. Thus, the Supreme Court i.a. held that, for lack of direct effect in Belgium, the UN Security Council resolutions invoked by the claimant did not constitute a law the violation of which could underpin an appeal in cassation, and that relevant passages from UNSC resolutions did not constitute binding decisions in the sense of Article 25 UN Charter. In the end, the Supreme Court dismissed the appeal and concluded that NATO’s immunity stands and cannot be bypassed.

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X v Kingdom of Saudi Arabia

On By In First Instance Tribunal
Ghent First Instance Tribunal, X v Kingdom of Saudi Arabia, Nr. 18/3932/A, 17 October 2022

A Belgian businesswoman sought compensation from the Kingdom of Saudi Arabia, claiming in particular that an official press release, in which she had been presented as  being unreliable, had caused her financial and moral damage. The Court held, however, that the passing on of information on the applicant by the Saudi Embassy in Belgium to the Saudi Ministry of Trade and Industry constituted an act ‘jure imperii’, benefiting from State immunity. By reference to Article 12 of the 2004 UN Convention on State Immunity and the preparatory works of the International Law Commission, the Court further held that the ‘territorial tort’ exception does not apply to reputational damage and was accordingly inapplicable. In turn, the publication of a press release on the applicant within Saudi Arabia did not fall within the jurisdiction of the Belgian courts.

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Prosecutor v A.S., N.N. et al.

On By In First Instance Tribunal
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.

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Russian Federation v Godeau Finances

On By In Supreme Court
Supreme Court, Russian Federation v Godeau Finances, Nr. C.18.0282.F/1, 6 December 2019

The Supreme Court addresses a case by the Brussels Court of Appeal between a Belgian Real Estate company and the Russian Federation. The company sought compensation after the Russian Federation renounced the acquisition of a set of real estate properties intended for the housing of personnel of its Permanent Mission to the EU.

The Supreme Court confirms that State immunity from jurisdiction is a rule of customary international law which only applies to acts performed in the exercise of public authority (‘acta jure imperii’) and not to ‘acta jure gestionis’. In order to determine whether an act is done in the exercise of a State’s public authority, the nature of the act and the capacity in which the State has intervened, and the context in which the act was performed must be taken into account.

The Supreme Court finds that, by relying exclusively on the nature or form of the acts of the Russian Federation’s Permanent Mission to the EU in order to determine that they constituted acta jure gestionis, without examining the quality in which the applicant intervened having regard to the context in which the acts were undertaken, the Court of Appeal infringed customary international law. Consequently, the judgement is annulled.

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United States of America v P.V.N.

On By In Supreme Court
Supreme Court, United States of America v P.V.N., Nr. S.15.0051.N/2, 4 March 2019

The Belgian Supreme Court examines a judgement of the Brussels Labour Court of Appeal. The case concerns a dispute involving an employment contract between the USA and a private person, P.V.N., who worked for the US embassy in Belgium and demanded compensation after being dismissed in 2010.

The Supreme Court holds that, according to international customary law and, as provided by Article 11(1) of the 2004 Convention on Jurisdictional Immunities of States and their Property, a foreign state can only invoke immunity from jurisdiction in the context of employment disputes when a number of criteria are met, including that a person must be appointed for the performance of certain acts performed in the exercise of public authority (‘acta jure imperii’).

The Brussels Court of Appeal previously established that, while the defendant performed certain preparatory acts with regard to acts involving the exercise of public authority, he did not have the authority to sign and bind the USA. Consequently, such acts could not of themselves be considered to entail the exercise of public authority for which immunity from jurisdiction can be invoked. The Supreme Court confirms that the judgement of the Court of Appeal was properly motivated.

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