Tag: Principle of legality

I. à X. E. N. v Prosecutor

On By In Supreme Court
Supreme Court, I. à X. E. N. v Prosecutor, Nr. P.24.1012.F/1, 18 December 2024

The judgment concerns (among others) an appeal in cassation by a person who was found guilty by the Court of Assizes of the Judicial District of Brussels of genocide and war crimes committed in Rwanda between 9 April and 28 May 1994. The applicant claimed that the conviction for genocide violated the principle of legality in criminal law (inter alia Article 7 ECHR), since Belgian criminal law did not formally criminalize genocide at the time the acts were committed (but did so only as of 1999).

The Supreme Court dismissed the claim since the conviction was based on international law already in force at the time of the acts, namely the 1948 Genocide Convention, ratified by Belgium in 1951. The Court held that this convention defines the offence with sufficient clarity and confirms the existence of an international custom that is binding on States, including within their domestic legal order. Accordingly, the crime of genocide already formed part of the Belgian legal order before the entry into force of the dedicated legislation adopted in 1999. Furthermore, the Court held that whereas the Genocide Convention does not explicitly prescribe penalties, the national judge could determine the sentence under domestic criminal provisions, such as those relating to murder, since the killing of members of the targeted group constitutes one of the constitutive elements of genocide.

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L., M. et al. v Kingdom of Belgium

On By In Court of Appeal
Brussels Court of Appeal, L., M. et al. v Kingdom of Belgium, Nr. 2022/AR/262, 2 December 2024

This judgment overturns an earlier ruling of the Brussels First Instance Tribunal of 8 December 2021 (see here), in which the Tribunal rejected the claims for compensation against the Belgian State, lodged by five individuals of Congolese descent who had been forcibly removed from their mothers as children and placed in religious institutes on account of their mixed-race parentage between 1948 and 1961. The Court of Appeal overturned the judgement of the First Instance Tribunal on two fundamental grounds.

Firstly, with regard to the principle of legality, the Tribunal at first instance had held that, at the time the acts were committed, they did not yet qualify as crimes against humanity. The Court of Appeal rejected this reasoning. Relying on the Statute of the Nuremberg Tribunal, and UNGA resolution 95(I) of 1946, the Court held that the crime of humanity was recognized as an offence by the international community as of 1946. Further, notwithstanding the specific competence of the Nuremberg Tribunal, it was not confined to acts committed in situations of armed conflict. The fact that practices of racial segregation were not limited to Belgium at the time, and may have been institutionalized, moreover did not alter the fact that the abduction of young children solely for racial reasons qualified as a crime against humanity.

Secondly, concerning the issue of prescription, the First Instance Tribunal had found that the case was time-barred. This conclusion was also overturned on appeal. Since the acts were now qualified as crimes against humanity (offences that are not subject to statutory limitation) the Court of Appeal indeed held that prescription could not serve as a ground to bar the proceedings.

In the end, the Belgian government was ordered to pay EUR 50.000 compensation to each of the five “enfants métis” (increased with compensatory interest).

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L., M. et al. v Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, L., M. et al. v Kingdom of Belgium, Nr. 20/4655/A, 8 December 2021

This case revolves around a claim issued by 5 people with Congolese roots against the Belgian state in connection with Belgium’s colonial past in Belgian Congo, now the Democratic Republic of the Congo. All claimants had been committed into a religious institute and hence separated from their family as children between 1948 and 1961. At the time, placing Métis (mixed-race parentage) children  in religious institutes was routine practice. The claimants’ position that this segregation epitomized a crime against humanity, based on which they were entitled to compensation, was, however, held to be unfounded. Having regard to the principle of legality, the Tribunal rather found that the placement of people in such religious institutions for racial reasons did not amount to a crime against humanity at the time. Acknowledging that the concept of crimes against humanity had gradually broadened over time, however, the court added that if these actions were to occur today, they would likely be seen as such.

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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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