Court/Judicial body: Court of Appeals of Brussels, Juvenile Court, Belgium
Date: March 1, 2002 CRC
Provisions: Article 2: Non-discrimination Article 19: Protection from abuse and neglect
Other international provisions:Vienna Convention on Diplomatic Relations (18 April 1961) 500 UNTS 95 ( Article 29: Diplomatic agent inviolable; Article 31: Immunity from criminal, civil and administrative jurisdiction; Article 37: Privileges and immunities of family members)
Case summary
Background: The Public Prosecution Service requested that a juvenile court order supervisory and educational measures for a minor (“LC”) who was in a “situation of troubled upbringing.” The juvenile court decided it did not have the ability to impose any measures on LC because she was the daughter of the first secretary of the Zambian embassy in Belgium, and members of the diplomatic corps and their families living abroad enjoy immunity from criminal, civil and administrative prosecution under the Vienna Convention on Diplomatic Relations. LC, her mother and the Public Prosecution Service then appealed the juvenile court’s decision that it lacked jurisdiction due to diplomatic immunity.
Issue and resolution: Child protection in the context of children with diplomatic immunity. The Court decided that the juvenile court could order supervisory and educational measures on LC. Despite the diplomatic immunity that diplomats’ family members enjoy under the Vienna Convention on Diplomatic Relations, the treaty is unable, under any circumstances, to prevent legal proceedings from being instigated to protect diplomats’ children.
Court reasoning: The Court refused to interpret the Vienna Convention on Diplomatic Relations as prohibiting the legal authorities in Belgium from ordering supervisory or protective measures for children with diplomatic immunity. The Court reasoned that such an interpretation would conflict with both (i) the state’s obligations to take appropriate steps to prevent attacks on such children’s person, freedom or dignity under the same Convention (Articles 29 & 37), and (ii) the state’s obligations to protect all children within its jurisdiction from abuse and neglect under the CRC (Articles 2 & 19).
Excerpt citing CRC and other relevant human rights instruments as translated by the Oxford Reports on International Law in Domestic Courts [3] By virtue of Articles 31 and 37 of the Vienna Convention of 18 April 1961 on Diplomatic Relations, transposed by the Act of 30 March 1968, both diplomatic officers and their resident family members enjoy immunity from criminal, civil and administrative jurisdiction in the host State. However, these provisions cannot be interpreted as meaning that legal authorities in the host State are unable to apply compulsory supervisory or protective measures in the case of children in a situation of troubled upbringing if such children “enjoy” diplomatic immunity. This interpretation does not conflict with Article 29 of the said Convention, which in combination with Article 37, clearly imposes the obligation on the host State to take all suitable steps to prevent the dignity, freedom or values of resident family members of diplomatic officers from being jeopardised. [4] If the provisions of the Vienna Convention of 18 April 1961 are to be assumed to be incompatible with the initiation of legal proceedings to protect diplomats’ children, then these provisions will be in conflict with the New York Convention of 20 November 1989 on the Rights of the Child. According to Article 19 of this Convention, State parties will take all suitable steps to protect the child against all forms of physical or mental violence, injury or abuse, neglect or neglectful treatment, mishandling or exploitation, including sexual abuse, and these measures must include suitable procedures for tracing, reporting, referring, examining, treating and the following up of cases of child abuse and, where applicable, procedures for involving legal authorities. [5] Article 2 of this Convention emphasises that State parties guarantee the rights described in the Convention for each child under their legal authority without discrimination of any kind whatsoever.
Notes: The Oxford Reports on International Law in Domestic Courts notes that this case was decided less than three weeks after the International Court of Justice (“ICJ”)’s judgment in the Arrest Warrant Case, Congo, the Democratic Republic of the v. Belgium, deciding that the functional immunity from criminal prosecution of a minister of Foreign Affairs was absolute. Following the ICJ’s Arrest Warrant judgment, the Belgian legislature added Article 1bis to the Preliminary of the Code of Criminal Procedure, absolutely barring prosecution for any offence against people enjoying immunity under international law.
CRIN comments: CRIN believes that this decision is consistent with the CRC, and that all children in any state that has ratified the Convention should fully enjoy its rights and protections, regardless of their nationality or diplomatic status.
Citation: Public Prosecutor v. LC, Appeal Judgement, Belgian Court of Appeals of Brussels, Juvenile Court, RW (Rechtskundig Weekblad) 2002-2003, no 8, 301; ILDC 46 (BE 2002).