Compatibility of the Law of 5 August 2003 on serious violations of IHL with the Belgian Constitution and European Convention on Human Rights and Fundamental Freedoms, Arbitration Court, 23 March 2005
Arrêt No 62/2005 en cause du recours en annulation des articles 16, 2°, et 18, 4°, de la loi du 5 août 2003
relative aux violations graves du droit international humanitaire, introduit par l'a.s.b.l. Ligue des
droits de l'homme et l'a.s.b.l. Liga voor Mensenrechten
||Cour d'arbitrage de Belgique
||http://competenceuniverselle.files.wordpress.com/2011/07/arrt_de_la_cour_constituti.pdf (last accessed on 28 August 2013)
On 23 March 2005, Belgium's Administrative Jurisdiction and Procedure Court (Cour d'arbitrage)ruled on the issue of the compatibility between certain provisions of the Law relating to serious violations of international humanitarian lawof 5 August 2003 and Articles 10 and 11 of the Federal Constitution (principles of equality and non-discrimination) and, finally, Article 6 of the European Convention on Human Rights and Fundamental Freedoms (right to fair trial). The provisions of the Belgian law of 2003 being challenged in the above-mentioned case confer on the Federal Prosecutor exclusive authority to initiate a criminal investigation, thereby making it impossible for the victims themselves to initiate proceedings and precluding a "constitution de partie civile" for that purpose. Nor does the law provide the possibility of appeal against the Prosecutor's decision if he decides not to prosecute.
The court decided that it was not unreasonable for the Prosecutor to enjoy an exclusive prerogative to decide on the admissibility of a case before Belgian courts in situations where the needs of justice, or Belgium's international obligations, require that the claim should be brought before an international court or tribunal, or before the national and independent courts of a another State enjoying jurisdiction over the case.
However, the court ruled that in other situations, the decision not to prosecute could not rest solely with the Federal Prosecutor and should be taken by an independent and impartial judge. The court consequently ordered that an amendment be made to the existing law, by 31 March 2006, in order to ensure that in such situations the decision not to prosecute would be taken under the authority of an independent and impartial judge.