{"id":466,"date":"2016-10-28T16:32:00","date_gmt":"2016-10-28T16:32:00","guid":{"rendered":"https:\/\/ilbc.be\/?p=466"},"modified":"2021-12-16T08:36:01","modified_gmt":"2021-12-16T08:36:01","slug":"m-r-v-l-p","status":"publish","type":"post","link":"https:\/\/ilbc.be\/?p=466","title":{"rendered":"M.R. v La Posterie"},"content":{"rendered":"\n
Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016<\/strong><\/h6>\n\n\n\n
ECLI:BE:CASS:2016:ARR.20161028.6<\/code><\/pre>\n\n\n\n
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 \u201cin no way compromise\u201d 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.<\/p>\n\n\n\n
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1
\n28 OCTOBER 2016
\nCourt of Cassation of Belgium
\nJudgment
\nNo. C.16.0039. N
\nM.R.
\napplicant,
\nrepresented by Mr. Bruno Maes, advocate at the Court of Cassation, with office at 1000
\nBrussels, Bergstraat 11, where the applicant made choice of domicile,
\nagainst
\nL.P.
\ndefendant,
\n2
\nI. PROCEDEEDINGS BEFORE THE COURT
\nThis application for review is made of a judgment of the tribunal of first instance of Leuven in appeal delivered on 9th October 2015.
\nPresident Eric Dirix made the report.
\nAdvocate General Andr\u00e9 Van Ingelgem gave his conclusions.
\nII. GROUNDS OF APPEAL
\nThe applicant raises one ground in her application for review which is attached to the present judgement.
\nIII. DECISION OF THE COURT
\nGrounds of the decision
\n1. The applicant submits, essentially, that the judgement under attack denied her diplomatic immunity in disregard of article XII of the status of the North Atlantic Treaty Organization signed in Ottawa on the 20th September 1951, adopted by Act of the 1st February 1955, the articles 29 to 31.1 of the Treaty of Vienna of 19 April 1961, adopted by the Act of 30 March 1968 and that in any event this immunity does not violate article 6 of the European Convention of Human Rights, nor can it be considered as such in the present case.
\n2. According to Article 6.1 of the European Convention of Human Rights everyone is entitled to the access to a court for the hearing of his disputes regarding his civil rights and obligations. This right of access to the courts is not absolute. It may be subject to limitations, since by its nature it calls for regulation by the State.
\n3. The granting of privileges and immunities to diplomats is needed to ensure the proper functioning of the diplomatic mission and to promote good relations between States. This
\n3
\ndiplomatic immunity is, in principle, absolute, both in regard to the exercise of the function of the diplomatic mission and in regard to private life.
\nThe immunity of jurisdiction and execution granted to diplomatic representatives based on treaties, acts constituting international organizations or international customary law and cannot be considered as a disproportionate limitation of the right of access to court as established by article 6.1 of the European Convention of Human Rights.
\n4. Pursuant to article 31, al. 1 a) of the Treaty of Vienna on diplomatic relations, a diplomatic agent shall enjoy immunity from civil and administrative jurisdiction of the receiving State, except in the case of real actions relating to private immovable property situated in the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission. Lawsuits regarding the lease of a private home do not fall within that category.
\n5. It results from the judgment under attack that:
\n– The defendant leased a home to the applicant located in Tervuren and a dispute has arisen regarding this contract;
\n– The defendant has sued the applicant before the justice of the peace for the payment of rent arrears and damages;
\n– The applicant raised the defence based upon her diplomatic immunity as a member of the Permanent Representative of the United States of America of NATO;
\n– It appears from a letter on the 16th January 2015 from the Ministry of Foreign Affairs, Directorate of Protocol, that the applicant is entitled to diplomatic status as a member of the Permanent Representative of the United States of America at NATO and accordingly enjoys the diplomatic privileges and immunity as stipulated in article XII of the Treaty of Ottawa.
\n6. The reasoning of the lower court that the diplomatic immunity of the applicant results in \u201cthe consequence that the defendant is in fact denied to the right of access to the court in order to obtain a judgement for the payment of rent arrears and damages\u201d while such a proceeding would \u201cin no way compromise\u201d the proper functioning of the Permanent Representation of the relevant State or of NATO itself does not legally justify the lower
\n4
\ncourt\u2019s decision that the immunity invoked by the applicant is inconsistent with article 6.1 European Convention of Human Rights.
\nThe application for review is founded.
\nDictum
\nThe Court,
\nQuashes the decision below,
\nRemits the case to the tribunal of first instance of Brussels.
\nThis judgement was given in Brussels by the Court of Cassation, first chamber, composed of Eric Dirix (presiding), Albert Fettweis, Beatrijs Deconinck, Geert Jocqu\u00e9 and Bart Wylleman, and pronounced in a public hearing on the 28th October 2016 in the presence of advocate general Andr\u00e9 Van Ingelgem, with the assistance of law clerk Veronique Kosynsky.<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[24,25,21,18,30,36,28],"_links":{"self":[{"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/posts\/466"}],"collection":[{"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/ilbc.be\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=466"}],"version-history":[{"count":13,"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/posts\/466\/revisions"}],"predecessor-version":[{"id":626,"href":"https:\/\/ilbc.be\/index.php?rest_route=\/wp\/v2\/posts\/466\/revisions\/626"}],"wp:attachment":[{"href":"https:\/\/ilbc.be\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=466"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ilbc.be\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=466"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ilbc.be\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=466"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}