Constitutional Court, F.H et al. v Kingdom of Belgium, Nr. 163/2022, 8 December 2022
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.
Supreme Court, H.S., Nr. P.22.0053.N, 14 June 2022
The Belgian Supreme Court rejects the claim that the judgment of the Antwerp Court of Appeal of 22 December 2021 violated the duty to state reasons by holding, on the one hand, that Islamic State (IS) qualified as a ‘terrorist group’ in the sense of Articles 139 and 140 of the Criminal Code, pertaining to the prosecution of terrorist offences, but did not constitute ‘armed forces’ in the sense of Article 141bis of the same Code (which excludes members of armed forces involved in an armed conflict from prosecution for terrorist offences). The Supreme Court held that the notion of ‘armed forces’ in the sense of Article 141bis must be understood in light of the requirements of intensity and organization under international humanitarian law (IHL), and is distinct from the notion of ‘terrorist group’. The Supreme Court recalls the various reasons that led the Antwerp Court of Appeal to conclude that IS lacked the required degree of organization to be considered an ‘armed force’, including e.g. the lack of a single headquarters or command structure; the large number of foreign fighters operating without a clear overarching command, or; the practice of random detentions in lieu of disciplinary rules as envisaged under IHL. The Supreme Court concludes that the contested judgment was duly motivated.
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.
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.
Council Chamber of the Tribunal of First Instance, Federal Prosecutor, Republic of Turkey and F.A. v U.S, K.R. et al., 3 November 2016
The Council Chamber of the Tribunal of First Instance adjudges that the PKK should be considered as a non-State armed group that is party to a non-international armed conflict with the Turkish State under international humanitarian law (IHL). In accordance with the IHL exclusion clause of Article 141bis of the Belgian Criminal Code, this qualification entails that the 42 defendants cannot be prosecuted for ‘terrorist offences’ in connection with their involvement in that conflict as members of the PKK.
In order to establish the intensity and degree of organization required to conclude to the existence of a non-international armed conflict, the Chamber (implicitly) draws from a range of factors, including: the PKK’s armed activities since 1984, the high number of these activities, the use of heavy weapons, the existence of a chain of command, the position of the International Committee of the Red Cross, the formal initiative undertaken by the PKK to comply with international conventions, the territorial control of the PKK over parts of South-East of Turkey (as demonstrated by a call for armistice by the PKK leader in 2013), as well as the conduct of negotiations between the PKK and Turkey.