Two kilometers from Manneken-Pis in beautiful Brussels is the seat of the Belgian Constitutional Court, which has recently condoned the torture of an innocent citizen putting the very right to life on the line in a blunt attack against the overwhelming political consensus, as well as popular and academic support to save Olivier Vandecasteele’s life. Today, all eyes are on the court, as it will get a chance to correct the injustice of its own making.
For a few weeks now, street corners, trams, banks, supermarkets, and homes in Belgium are covered with the slogan #Freeoliviervandecasteele and a picture of the 42-years-old Belgian humanitarian worker held hostage under gruesome conditions in Iran. Since his kidnapping from a Tehran apartment more than a year ago Olivier Vandecasteele was tortured by the Iranian security apparatus. Uninterruptedly kept in a cold solitary cell with no charges, he lost 25kg and the nails on his toes, suffers from numerous infections and a nervous breakdown. Olivier was in the wrong place at the wrong time, as Iran is using him as a bargaining chip to exchange for Asadollah Assadi, an Islamic Republic’s diplomat in Vienna convicted in Belgium on terror charges in 2020.
The public outrage is not only so much against Iran, however – there is nothing new in its behavior – but also against the Belgian Constitutional Court. In its judgment of 8 December 2022, the court suspended the law ratifying the Treaty on the transfer of sentenced persons, which Iran and Belgium concluded last March enabling the exchange of Assadi, the diplomat-turned-terrorist, for the Belgian aid worker kept hostage in Iran. In that case, the Belgian Constitutional Court, whose political composition raises eyebrows (6 out of the 12 judges are former MPs and legal training is not at all an appointment requirement for them), took into account solely the procedural right to life of the applicants, who are victims of a failed attack against an Iranian opposition rally in France planned by Assadi – not Vandecasteele. The court’s blunt refusal to take the drastic situation of the innocent hostage into account was met with outright disbelief.
A few days after the suspension ruling by the Belgian Constitutional Court, the Islamic Republic being the Islamic Republic, Olivier was convicted by a phony court behind closed doors of spying and sentenced to 40 years in jail and 74 lashes of a whip, as if to remind the Belgian Constitutional Court, what the right to life and what torture was really about. Awaiting the final decision of this court on the constitutionality of the suspended law, we demonstrate the dangers of:
- Shortsighted and unbalanced reading of the right to life;
- Ignoring the limits of own powers by the Belgian court.
1. Shortsighted and unbalanced reading of the right to life
The Belgian Constitutional Court adjudged that the law approving of the convicted prisoner exchanges between Iran and Belgium ‘seemed’ to violate the right to life of the applicants who attended the congress of Iranian opposition in France, which was the target of Mr Assadi acting for the Iranian national security services. The Belgian court relied on the European Court of Human Rights’ (ECtHR) ruling in Kitanovska Stanojkovic 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 (para. 32). In the words of the court, ‘Belgium knows or should know that if, pursuant to the treaty of March 11, 2022, Iran and Belgium agree on the transfer to the territory of Iran of a person of Iranian nationality who has been convicted by Belgian courts and tribunals of committing, with the support of Iran, a terrorist offence with the aim of endangering the lives of others, Iran will not effectively carry out this sentence, pursuant to Article 13 of that treaty’ (para. B.16.3, own translation).
Astonishingly, beyond the questionable consequentialist and concrete approach, the court decided to focus exclusively on the interests of the Iranian opposition – who, luckily, were not harmed as a result of a failed attack by the Iranian diplomat – without even mentioning once that there is an innocent Belgian dying in cold solitary confinement in some secret Iranian prison: Olivier Vandecasteele. The astonishing presumption entertained by the court– that only unharmed Iranian activists, but not an innocent Belgian aid worker, who is being tortured, should enjoy the right to life is so outright obscurantist that commenting on it in all seriousness is difficult. No attempt was made by the court to balance the interests and rights of the unharmed activists and someone who is being tortured and whose life is in direct danger. Ironically, precisely due to the fact that the right to life, which stems from public order, is absolute and should not be subject to balancing, the Belgian court has moved close denying the right to life outright, through giving priority to procedure over substance, what the Convention does not authorize under Article 2 ECHR.
It is beyond any doubt that Belgium did take responsibility vis-à-vis Assadi’s victims under Article 2 ECHR. Assadi’s immunity under Article 40 of the Vienna Convention was not recognized by the Belgian Supreme Court, resulting in twenty years behind bars, of which Assadi has by now served five, but will most likely not serve all twenty under the Belgian enforcement of sentences law. Yet, as this whole story illustrates, keeping prisoners like Assadi in Belgium constitutes a danger for the national interests of the country and those of Belgian citizens. Back in 2016, the Belgian government, well-aware of such a threat, started negotiations of the prisoner exchange Treaty with Iran following the recommendation of national security services. By failing to recognize the margin of appreciation of the executive and legislative powers to appraise such risk, the court opted for an obscurantist ultra vires intervention amounting to an assault on Olivier’s right to life and prolonging his torture.
2. Ignoring the limits of judicial powers
Belgium has a priori jurisdiction under Article 1 ECHR, Belgian authorities having explicitly and unconditionally awarded Olivier diplomatic protection (as opposed to ECtHR’s H.F. case). The key priority of the Belgian government in this context has been clear from the moment of his kidnapping: saving his life and ceasing torture and the degrading treatment he is suffering from as soon as possible. Following negotiations since 2016, the Belgo-Iranian bilateral Treaty on the Transfer of Sentenced Persons was finally signed on March 11, 2022. On July 30, 2022, a law ratifying this international instrument was adopted by the Belgian federal legislator. In October 2022 the National Council of Resistance of Iran (NCRI), which opposes the current government in Iran and had been the target of the attempted attack by the Iranian government through Assadi, launched a request for the suspension and annulment of this law before the Belgian Constitutional Court a few days after their request to forbid Assadi’s transfer was rejected by the Tribunal of first instance.
On December 8, 2022 the Belgian Constitutional Court decided to suspend Article 5 of the law ratifying the Treaty in question, adjudging that it infringed the NCRI members’ procedural right to life under Article 2 ECHR and sacrificing Vandecasteele’s life on the altar of procedural purity. As a consequence, the court’s intervention has paralyzed the on-going efforts to ensure that the goals outlined by the Belgian government from the very beginning be reached. The government and the legislator thereby ended up prevented from pursuing the most efficient and reasonable approach to help a Belgian citizen who is being tortured and whose life is in direct danger. Diplomacy and international relations precisely have a regalian character: governments usually have all the necessary knowledge to deal with it, implying, a fortiori, a wide margin of appreciation. The court, moreover, simply ignored its own words according to which it does not have the same power of assessment and decision as the democratically elected legislative assemblies and it is not for the venue to review political choices. The short-sighted and self-assured ultra vires action by the court left the hands of the other branches tied and de facto extended at least by two months the torture of an innocent Belgian citizen in the face of overwhelming political mobilization and cross-party consensus behind helping the victim as soon as possible. This is a textbook example of ultra vires intervention in politics at the expense of the most fundamental human rights – a situation that no wise constitutional court would normally permit itself, should it have longer term respect vis-à-vis the judiciary in mind.
In any case, the transfer Treaty does not, in itself, plan the transfer of Assadi: it is drafted in general terms. In fact, other jurisdictions in Belgium are competent to control concrete transfers – such as the one of Assadi – once they are decided. In reviewing the case in light of Assadi’s transfer, the Court thus also overstepped its own competences.
The Belgian Constitutional Court deployed an obscurantist misinterpretation of the ECHR and use of its powers preventing the Belgian legislator and the government to comply with their duty under Article 2 ECHR to make sure that an innocent citizen is not subjected to torture and not be deprived of life. The position of the court makes saving Olivier Vandecasteele much more difficult, if not impossible. Given that any court’s power is confined to its ability to convince, the Belgian Constitutional Court puts its own standing on the line: so far, this is the court that ensured two months more of torture of an innocent victim whom it did not even recognize was in its hands. One does not convince many by such a dereliction of duties. Thankfully, hope is not yet irreparably lost: the procedures surrounding the action for annulment of the suspended ratification law offer an opportunity for the court to come back to its senses.