Tag: Iran

F.H. et al. v Kingdom of Belgium

On By In Constitutional Court
Constitutional Court, F.H et al. v Kingdom of Belgium, Nr. 163/2022, 8 December 2022
ECLI:BE:GHCC:2022:ARR.163

In March 2022, Belgium and Iran concluded a treaty pertaining to the transfer of convicted persons, meant to allow persons sentenced in one country to serve the remainder of their prison sentence in the territory of the other. The Belgian law approving the treaty was, however, challenged on the basis of the right to life. In particular, the applicants asserted that the treaty was meant to enable the exchange of Assadollah Assadi, an Iranian diplomat convicted in Belgium in connection with a failed State-sponsored terrorist attack against a meeting of Iranian opposition groups, against the Belgian aid worker Olivier Vandecasteele, who had been detained in Iran for unknown charges.

According to the Court, Belgium was or should be aware that if it transferred Assadi, Iran would not execute the sentence, but would instead grant him a pardon or amnesty pursuant to Article 13 of the Treaty. In such circumstances, the Court held that such transfer would violate the right to life of the victims of the foiled terrorist bombing. The Court thereby relied on the Strasbourg Court’s case law according to which the execution of a sentence that is imposed in the context of the right to life must be considered an integral part of the State’s procedural obligation under Article 2 of the ECHR. In conclusion, pending a definitive ruling on its constitutionality, the Court suspended the law in so far as the treaty permitted the transfer to Iran of persons that have been convicted for committing a terrorist offence with the support of Iran.

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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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