Brussels First Instance Tribunal, Labour Prosecutor et al. v X et al., Nr. 21.N.003187, 15 December 2021
A former diplomat and his wife are condemned in absentia for the crimes of human trafficking and unlawful imprisonment on account of their exploitation of a domestic worker. The Tribunal asserts that, pursuant to Article 39 of the Vienna Convention on Diplomatic Relations, a diplomat whose function has come to an end enjoys immunity only in respect of those acts that were performed in the exercise of this function. The exploitation of domestic workers in the diplomat’s private residence does not qualify as such, and is accordingly not covered by diplomatic immunity.
Antwerp First Instance Tribunal, Prosecutor v A.S., N.N. et al, 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.
Belgian Supreme Court, A. A., Nr. P.18.1301.N, 2 January 2019
The case concerns an Iranian diplomat working at the embassy in Vienna (Austria), who was arrested in Germany and extradited to Belgium to face criminal charges for alleged involvement in terrorist activities. The Court acknowledges that diplomats enjoy inviolability when they are ‘in transit’ to or from the receiving State as part of their diplomatic assignment pursuant to Article 40(1) of the Vienna Convention on Diplomatic Relations. However, this inviolability does not apply where a diplomat returns to the receiving State from a holiday in a third country.
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016
The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.