The complainant is Cassandra Bodart, a national of Belgium born on 11 January 1995. She is the widow of a deceased Da’esh fighter and is currently being held in the Rawj camp in the north-east of the Syrian Arab Republic, which is under the control of the Syrian Democratic Forces. She claims that the refusal of the Belgian authorities to facilitate or even enable her repatriation amounts to a failure by the State party to meet its positive obligations under the Convention. The complainant therefore challenges the State party’s decision not to take any steps to end the cruel, inhuman and degrading treatment to which she is currently subjected in the Rawj camp, in violation of articles 2 (1), 11 and 16 (1) of the Convention. The State party made the declaration provided for in article 22 (1) of the Convention on 25 June 1999. The complainant is represented by counsel.
On 6 March 2020, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to provide the complainant with all administrative authorizations and identity and travel documents needed for her repatriation, whether organized by the Government or by a humanitarian or relief organization, and to take all other relevant measures reasonably within its power to actively protect the complainant’s physical and psychological integrity.
On 7 April 2020, the State party informed the Committee that it was unable to implement the interim measures requested, claiming that, because the Belgian authorities had no jurisdiction over the territory concerned, they were under no legal obligation to provide consular assistance to the complainant or to repatriate her. Furthermore, the State party had no diplomatic representation in the Syrian Arab Republic and no official point of contact with the Rawj camp. Lastly, according to the State party, the issuance of identity documents would be pointless without any prospect of the complainant’s imminent repatriation. On the contrary, it might even constitute a risk for her4 and for national security. Moreover, the complainant did not meet the legal requirements for issuance of identity documents and the State party could not contravene its own law.
- The State party indicates that, from its discussions with the Autonomous Administration of North and East Syria, it appears that the possession of identity documents in camps could represent a risk for the holder, since such documents are considered to be valuable property. Moreover, such documents could ultimately end up in the hands of third parties, who might usurp the complainant’s identity. ↩
On 14 July 2020, the complainant indicated that, for her, it was clear that the State party had the capacity and opportunity to take certain specific, practical steps towards meeting the Committee’s requests and safeguarding her physical and mental integrity almost entirely from Belgian territory. She noted, however, that the State party refused to take any steps in this direction.
On 24 July 2020 and 2 June 2021, the Committee, acting through its Rapporteur on new complaints and interim measures, reminded the State party of its request for interim measures of 6 March 2020.
Facts as submitted by the complainant
When the complainant was 16 years old, she dropped out of school and converted to Islam. She met people who encouraged her to attend a mosque in the region of Charleroi, Belgium. Shortly thereafter, she met a man on the Internet whom she eventually joined in France. In November 2013, the complainant announced to her mother that she intended to move to Algeria in order to live in a Muslim country. In January 2014, the complainant’s mother learned that she was not in Algeria but in the Syrian Arab Republic, where she had joined her husband.5
- In her communication to the Committee, the complainant makes no mention of her husband or the fact that she was married. This information appears in the decisions of the Belgian authorities, which indicate that her husband was a jihadi fighter who died in 2017 in Raqqa, Syrian Arab Republic. ↩
On 19 November 2014, the Belgian authorities issued a European arrest warrant in respect of the complainant in connection with a case involving participation in the activities of a terrorist group and, in April 2015, she was subject to a measure withdrawing and invalidating her passport under the Consular Code. Later in 2015, acting through her mother, the complainant sought assistance from the Belgian authorities, in particular the police, in the hope of returning to Belgium. However, no action has been taken by the Belgian authorities to assist her or to organize her repatriation.
In late 2017, the complainant was present at the siege of Raqqa by Kurdish forces. She was hit by shrapnel in various parts of her body. These wounds were left untreated and have been worsening since. Following these events, the complainant spent three months in prison, including one month in a cell the size of a mattress which she was permitted to leave once a day only, to go to the toilet. Food was given to her in her cell. On her arrival at the Rawj camp, she witnessed serious acts of aggression and violence against women, some of whom were beaten and given electric shocks. Since she was wounded, she escaped this ordeal in part but was still severely humiliated. For example, she was forced to undress in front of soldiers and spent a month in solitary confinement.
In the Rawj camp where she is currently detained, being no longer a Muslim the complainant is subjected to harassment by people seeking to force her to wear a headscarf. The Kurdish detaining authorities do not intervene, despite repeated acts of violence and the complainant’s extremely worrying medical situation. The complainant has been able to send WhatsApp messages to her parents in which she let them know that she had a kidney infection that was not being treated and that she was still suffering from the shrapnel wound in her leg.
On 27 April 2018, the complainant was sentenced in absentia to 5 years’ imprisonment by Namur Correctional Court in Belgium and was ordered to pay a fine for participating in the activities of a terrorist group. An order was put out for her immediate arrest. In this context, the Belgian federal police has continued to take an active interest in the complainant and continuously gathered information about her, such that the Belgian authorities could not have been unaware of the urgent situation in which she found herself in the Rawj camp.
In January 2019, the complainant, acting through her counsel, appealed her conviction. An introductory hearing took place before Namur Correctional Court on 25 January 2019. At this hearing, the complainant’s counsel asked for the case to be adjourned to a later date so as to allow them to apply for an interim order against Belgium and, in this context, demand the complainant’s repatriation so that she could appear in court and actively participate in her criminal trial. The case was postponed on three occasions: 28 June 2019, 4 October 2019 and 31 January 2020. On 31 January 2020, at the request of the Federal Prosecution Service, a date for oral pleadings on both procedural and substantive matters was set for 29 May 2020.
In the meantime, the complainant’s counsel took various steps to petition the Belgian authorities to enable her repatriation. These efforts failed to yield any results. On 5 March 2019, one of the counsels sent a final email to the Belgian authorities requesting the repatriation of the complainant. In a reply received on 7 March 2019, the Ministry of Foreign Affairs explained that it would be impossible, from a practical point of view, to provide consular assistance to the complainant in the Syrian Arab Republic as Belgium had no consular representation there. Moreover, the area in which the complainant was located was administered by Kurdish forces with which the Belgian Government did not maintain diplomatic relations. Lastly, there was no international judicial cooperation agreement between Belgium and the Syrian Arab Republic on the basis of which the Belgian authorities would be able to request her extradition. However, if the complainant were to present herself to a Belgian diplomatic or consular mission in the future, documents for her return to Belgium could be issued.
In June 2019, a Belgian sociomedical mission arrived at the Rawj camp. During this mission’s time at the camp, the complainant was able to consult a doctor who, on 19 July 2019, passed on the following medical observations to her counsel: tumour on the right leg, which required urgent imaging in order to determine its nature; severe depressive tendencies; and signs of psychotic behaviour.6 The doctor also mentioned the complainant’s medical history: swelling and pain in the legs; eight miscarriages; knee pain; and multiple scars on the back and legs.
- This doctor clarified that he is a surgeon and not a psychiatrist. ↩
The complainant initiated summary proceedings in Belgium in a bid to compel the State party to take action, and, more specifically, to take active steps, through regular checks, to ensure her physical and psychological integrity; to provide her with the administrative, identity and travel documents needed for her repatriation, whether organized by the Government or by a non-governmental organization; and to make arrangements for her repatriation so that she could receive the care necessary for her condition and defend herself in person at her criminal trial. The complainant based her claims on the positive obligation to actively ensure protection against cruel, inhuman or degrading treatment incumbent on the State party.
In an order dated 7 June 2019, the French-speaking Court of First Instance in Brussels dismissed the complainant’s claims, notably on the ground that she was not under the jurisdiction of the State party within the meaning of article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and articles 2 (1), 11 and 16 (1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The court also considered the complainant’s claim that she had a subjective right to consular assistance. After reviewing the 1963 Vienna Convention on Consular Relations, the Belgian Consular Code and the jurisprudence of the International Court of Justice and the Belgian Court of Cassation, it found that the complainant had not proved that she had a subjective right to consular assistance. The complainant appealed this decision, reiterating her claim that the State party should be condemned for its failure to comply with its duty to actively ensure protection against the ill-treatment to which she had been subjected and provide her with all possible consular and/or humanitarian assistance.
On 30 December 2019, the Brussels Court of Appeal dismissed the complainant’s appeal. While the Court admitted that the extraterritorial jurisdiction of a State could flow from a power to exercise jurisdiction over a person, it held that it had not been established prima facie that the complainant was under the extraterritorial jurisdiction of Belgium in the Rawj camp since the State party neither ran the camp nor exercised control over the persons residing there; it had not arrested the complainant, transported her to the Rawj camp or, in a general sense, placed her there, and it was not keeping her there. In conclusion, no violation committed there could be attributed to the State party. The same applied to the complainant’s procedural relationship with the Belgian State in the context of her appeal against the judgment of the criminal court that sentenced her in absentia. This procedural relationship existed solely within the context of the Belgian State’s powers of jurisdiction over its territory. It did not give rise to powers of extraterritorial jurisdiction.
With regard to the right to consular assistance, the Court of Appeal referred to a ruling in which the Belgian Court of Cassation7 had found that articles 5 and 36 of the Vienna Convention on Consular Relations did not impose an obligation on the sending State to provide consular assistance to its nationals and did not confer upon the latter the right to claim such assistance. Furthermore, according to the jurisprudence of the International Court of Justice, article 36 of the Vienna Convention on Consular Relations creates individual rights for nationals of the sending State and rights that may be invoked by this State only vis-à-vis the receiving State.8 The Court also noted that the Convention against Torture, the International Covenant on Civil and Political Rights and the European Convention on Human Rights do not oblige States parties to provide consular assistance to nationals who are or are at risk of being subjected to treatment punishable under these instruments at the hands of a third State. Lastly, since the international arrest warrant issued in respect of the complainant was still in force, the Consular Code did not allow, prima facie, for the Belgian State to be ordered to issue provisional documentation.9
- Judgment of 29 September 2017, C.15.0269.F (www.juridat.be). ↩
- LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466, and Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 12. ↩
- According to article 63 (1 (1)) of the Consular Code, read in conjunction with article 62. ↩
On 6 January 2020, the complainant applied to the Court of Cassation for legal aid and the appointment of a lawyer with a view to lodging an appeal in cassation. A lawyer at the Court of Cassation was appointed to draw up a preliminary opinion on the chances of success of an appeal to the Court. On 10 February 2020, the appointed lawyer informed a member of the complainant’s counsel that he had issued a negative opinion. In this opinion, which was issued after a detailed examination of the reasoning and jurisprudential references of the Court of Appeal, the lawyer concluded that the assessment of the facts by the Court of Appeal could not be faulted before the Court of Cassation.
On 3 April 2020, noting that nothing had been done and gravely concerned about their client’s situation, the complainant’s counsel sent a formal notice to the Belgian State, recalling the binding nature of the interim measures ordered by the Committee. No action was taken on this formal notice. Having taken note of the State party’s reply of 7 April 2020 to the Committee’s request for interim measures (para. 1.3 above), the complainant decided to summon the State party in summary proceedings before the President of the Frenchspeaking Court of First Instance in Brussels for the purpose of asserting and giving effect to her subjective right to the immediate execution of the interim measures requested by the Committee.
In an order dated 9 July 2020, the French-speaking Court of First Instance of Brussels declared the claim unfounded. According to the court, it would have been premature to order the immediate execution of the interim measures at that stage, given that the Committee had not yet responded to the State party’s observations of 7 April 2020 concerning the continuation or lifting of these interim measures. The court held that the request for interim measures could, at most, be binding only if non-observance thereof led to irreversible consequences, rendering subsequent international oversight futile and nullifying the effectiveness of the right to refer the matter to the Committee, which was not true in the case in question. Lastly, the interim measures decided upon by the Committee in the absence of any adversarial debate could not justifiably prompt the court to alter its earlier decision in application of the principle of good faith which should govern the State party’s fulfilment of its international commitments, given that the complainant’s claim had been submitted to a national judge in adversarial proceedings before her complaint was submitted to the Committee.
On 4 December 2020, the Brussels Court of Appeal dismissed the complainant’s appeal. After comparing the wording of article 22 of the Convention against Torture with that of article 34 in fine of the European Convention on Human Rights, the Court concluded that article 22 of the Convention against Torture did not establish the legally binding nature of the interim measures requested by the Committee nor any obligation to comply with them in good faith, and that, accordingly, there was no subjective right to have such interim measures enforced under penalty by a Belgian judge. The Court noted that the complainant was not in the same situation as other persons in respect of whom the Committee had ordered interim measures in the past. In practice, the Committee had granted interim measures to persons who were already in the territory and under the jurisdiction of the State party concerned and needed to remain there in order to avoid the irreparable harm that extradition or expulsion might cause them. In addition, the Court noted that it could not, without violating res judicata and the principle of the separation of powers, impose the requested injunctions upon the State party, which prima facie went beyond the international commitments that Belgium had assumed by acceding to the Convention against Torture, since there was nothing in the Convention that empowered the Committee to require the State party to take measures to protect persons who prima facie were not under its jurisdiction.
On 10 February 2021, the complainant applied for legal aid and the appointment of a lawyer before the Court of Cassation to help her to file an appeal in cassation. On 6 August 2021, the appointed lawyer concluded that the Court of Appeal’s decision was not manifestly unreasonable and that it would therefore be impossible to lodge an effective appeal in cassation against it. This opinion led to a decision to refuse to grant the complainant legal aid on 18 August 2021, which, in practice, made it impossible for her to have any prospect of gaining satisfaction before the Court of Cassation.
Complaint
The complainant claims a violation of articles 2 (1), 11 and 16 (1) of the Convention. Detained in the Rawj camp, she is enduring humiliation and violence and her health is gradually deteriorating owing to shrapnel lodged in her body; she is thus being subjected to severe cruel, inhuman and degrading treatment. The State party is the only authority in a position to put an effective end to such treatment, which is contrary to the Convention, since the detaining authorities are unable to improve the situation in any practical way and are calling for the repatriation of detainees to their States of origin. By taking no measures to facilitate or even enable repatriation, the State party is failing to meet its positive obligations under the Convention.
The complainant is of the view that it cannot be claimed that she is outside the “jurisdiction” of the State party within the meaning of articles 2 (1), 11 and 16 (1) of the Convention simply because she is being detained in the Syrian Arab Republic and not on Belgian territory. She maintains that the Committee – like the European Court of Human Rights or the Human Rights Committee – does not define the notion of jurisdiction exclusively in relation to territory.10 According to the complainant, what matters in terms of “jurisdiction” is the question of what the State is practically able to do in relation to the concrete violations at the root of the person’s complaint.11 The existence of a “jurisdictional” link is therefore essentially dependent on whether it is in fact the State party that exercises control over the complainant’s situation, or, in other words, is in a position to ensure that the human rights violation at the root of the complaint ceases.
- Committee against Torture, general comment No. 2 (2007), paras. 15 and 16. ↩
- The complainant refers to the case law of the European Court of Human Rights and the Human Rights Committee as well as to reports of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. ↩
The complainant challenges the ruling of 30 December 2019 of the Brussels Court of Appeal since the detaining authorities are themselves in favour of repatriations and even request them; the complainant’s fate depends, in practice, on the goodwill of the Belgian authorities, who thus exercise control – or “jurisdiction” – over the complainant and respect for her rights under the Convention. It cannot be denied that, in practice, the Belgian authorities actually do have the capacity to negotiate with the detaining authorities. The State party has already repatriated several children held in camps in the north-east of the Syrian Arab Republic, and, to this end, the Belgian authorities had issued the travel documents needed to facilitate their repatriation.
The complainant states that the most recent news confirm that the State party has power of “jurisdiction” over Belgian nationals held in camps in the north-east of the Syrian Arab Republic. Recent statements issued by the Minister of Foreign Affairs confirm the exercise of this power by Belgium, which has in fact defined its repatriation policy as consisting in repatriating very young children without their mothers but refusing to repatriate adults and is apparently about to put this policy into practice as it is currently planning a new repatriation operation.12
- P. de Boek, “Philippe Goffin au ‘Soir’: ‘On va regrouper les retours d’enfants de combattants djihadistes’”, Le Soir, 10 February 2020. ↩
Lastly, the complainant condemns the fact that, in failing to take action to facilitate her repatriation, the State party is allowing her health to deteriorate. She stresses that the Belgian authorities have the power and are the only authorities in a position to put an end to this situation, which is contrary to human dignity, at the very least by facilitating her repatriation by issuing travel documents and arranging for her return through the intermediary of humanitarian and relief organizations or international partners. However, the State party does not appear to be making any effort to meet its positive obligations to protect the complainant from the cruel, inhuman and degrading treatment to which she is being subjected, even though it has the means to do so.
State party’s observations on admissibility and the merits
On 6 April 2021, the State party contested the admissibility of the complaint on the grounds of non-exhaustion of domestic remedies and lack of jurisdiction.
The State party explains the summary procedure. The urgent applications judge may order interim protection measures to safeguard rights if rights justifying such a decision are perceived to exist. When taking such action, the judge is not permitted to rule on the existence of such rights or settle the legal situation of the parties definitively: urgent applications judges who issue interim rulings must refrain from prejudicing any future assessment by the trial judge. The principle is thus that it is not the role of the urgent applications judge to rule on the legal merits of the case. The complainant did not subsequently refer the matter to the trial court for a legal ruling on the question of jurisdiction but instead referred it directly to the Committee. While the State party understands the complainant’s desire to obtain a prompt decision on her situation, it recalls that subsidiarity is an essential principle of the Committee’s complaints mechanism, particularly when it comes to the question of the extent of a State’s jurisdiction, as this underpins the entirety of its obligations under the Convention. The State party therefore requests that the matter be duly examined by the national courts before being referred to the Committee.
The State party then notes that the Committee recalled the essentially territorial scope of the notion of jurisdiction in the case of H.S.T. v. Norway;13 it also notes that both national and international jurisprudence recognize that jurisdiction can have extraterritorial reach in certain cases. The decisive factor in assessing this possibility lies in the question of whether the State exercises effective control over the individual claiming to be the victim of a human rights violation. However, it is not disputed that the State party exercises no effective control over any part of Syrian territory, including the north-east of the Syrian Arab Republic where the camps are located, or over the camps themselves. Moreover, it cannot be argued that a jurisdictional link could arise in relation to the complainant through control exercised by consular officials,14 since the State party no longer has any career consular posts on Syrian territory since the closure of the Belgian consulate in Damascus in 2012.
The State party is of the view that the complainant is misinterpreting the decision of the European Court of Human Rights in the case of M.N. and Others v. Belgium, which in no way calls into question the Belgian State’s lack of jurisdiction in the present case. In that decision, the Court ruled that, while, in issuing visas governing access to Belgian territory, the Belgian authorities were exercising a public power, that fact was not sufficient to bring the persons concerned under the extraterritorial jurisdiction of the Belgian State.15 The Court also expressly stated that the mere fact that decisions taken at national level had an impact on the situation of persons resident abroad is also not such as to establish the jurisdiction of the State concerned over those persons outside its territory.16
The State party also refers to a decision of the European Commission of Human Rights, in which the Commission found that no right to diplomatic intervention vis-à-vis a third State, which by action within its own territory has interfered with Convention rights of a person within the jurisdiction of a Contracting State, could be inferred from the obligation imposed on the Contracting States by article 1 of the European Convention of Human Rights.17 The State party considers that these arguments are entirely applicable to the Convention against Torture and declares that it cannot subscribe to the view that it has a positive obligation to intervene.
- European Commission of Human Rights, S. v. Federal Republic of Germany, application No. 10686/83, decision, 5 October 1984. ↩
On the substance, the State party stresses that, under international law, there is currently no subjective right to consular assistance for nationals in a foreign territory. Moreover, no subjective right to consular assistance or repatriation exists under Belgian law, as confirmed by the Constitutional Court in its ruling No. 117/2020 of 24 September 2020. In view of the clear terms of article 83 of the Belgian Consular Code, the complainant cannot claim a subjective right to demand the provision of consular assistance since she voluntarily travelled to a region of armed conflict to which the State party advises against all travel. Decisions as to whether consular assistance is provided are taken entirely at the sovereign discretion of the State party. The complainant cannot attempt to substitute her assessment of the possibilities of taking action in the field and the manner in which diplomatic relations might be established for that of the State party, all the more so in view of the closure of the Syrian borders, which compounds the difficulty of gaining access to the Rawj camp where she is located.
Complainant’s comments on the State party’s observations
In her comments of 11 July 2021, the complainant points out that, in the present case, a claim for redress before the civil liability court would not have had any preventive effect that might have offered any realistic prospect of bringing a prompt and effective end to the violation of her right to respect for her physical and mental integrity. Civil liability claims are not a useful remedy since, in Belgian legal practice, they take many, many years to initiate and process. While it is possible to apply for urgent interim measures as part of a claim on the merits before the civil liability court, it is indisputable that, in Belgian practice, summary proceedings, which are quicker and more effective than a request for interim measures on the merits on the basis of article 19 of the Judicial Code, remain the natural legal avenue to remedy an ongoing violation of fundamental rights. Moreover, in a case concerning detention conditions incompatible with protection against ill-treatment, the European Court of Human Rights found that submitting an application to the civil liability court on the basis of article 1382 of the Belgian Civil Code did not constitute an effective remedy subject to exhaustion in the context of a situation of ill-treatment.18
- European Court of Human Rights, Vasilescu v. Belgium, application No. 64682/12, judgment, 25 November 2014, para. 75. ↩
With regard to the jurisdiction of the State party,19 the complainant reiterates that, in practice, in the particular circumstances of the present case, she is totally dependent on and therefore under the jurisdiction of the Belgian authorities; they alone have the power and duty to put an end to the ill-treatment to which she is being subjected. In view of the fact that the State party has announced that its definitive policy is to repatriate only Belgian children under the age of 12 years old and, subject to a case-by-case assessment, their mothers,20 it is indisputable that the failure to implement protective measures on behalf of the complainant is the result of a confirmed and openly admitted political decision by the State party, and not, as the State party has long maintained, a supposed inability to act.
- The complainant also refers to the decisions of the Committee on the Rights of the Child in S.H. et al. v. France (CRC/C/85/D/79/2019-CRC/C/85/D/109/2019) and S.B. et al v. France (CRC/C/86/D/R.77/2019), and of the Human Rights Committee in A.S. et al v. Italy (CCPR/C/130/D/3042/2017), para. 7.8. ↩
- M. Benayad, “Les enfants belges de moins de 12 ans détenus en Syrie seront rapatriés, les mamans le seront ‘au cas par cas’ˮ, La Libre, 20 March 2021. ↩
The complainant states that she was interviewed by Belgian consular agents in Rawj at the beginning of June 2021. This meeting was not denied by the State party although it did not agree to provide the complainant’s counsel with the minutes of the meeting or the precise names and positions of the persons who interviewed her. The State party’s assertion that it has no operational capacity to provide consular assistance in the camps in the Syrian Arab Republic therefore cannot be believed.
The complainant notes that the State party is questioning the scope of its positive obligations. In particular, she recalls that steps taken to meet positive protection obligations, which necessarily and by their nature limit the discretionary power of States, must be adequate and proportionate, that is to say capable of providing an effective remedy for harm suffered.
The complainant states that, on 16 May 2021, an ultrasound scan was performed on her right thigh. The examination confirmed the presence of a tumour. These medical results were submitted anonymously to an English specialist doctor, who contacted the complainant to conduct a medical consultation over the telephone. According to this doctor’s report, the cancerous nature of the tumour cannot be ruled out and, regardless of whether the tumour is malignant or benign, the complainant’s condition requires urgent medical intervention.
Lastly, the complainant submits that it is now clear, after 15 months of total and openly admitted inaction on the part of the State party since the Committee’s request for interim measures, that the violation of article 22 of the Convention by the State party has become irreversible and complete. The State party has in no way complied with the Committee’s requests. The complainant therefore requests that the Committee also find a violation of article 22 of the Convention by the State party.
State party’s additional observations
On 1 March 2022, the State party reiterated that, while it is true that, in the past, the urgent applications judge has issued injunctions that have, in practice, had a definitive effect on the situation of the persons concerned, the judge may base his or her decision on a right belonging to one of the parties or on a factual situation, provided that this right or situation is not seriously challenged. However, in the present case, the fine nuances of the complainant’s interpretation of the concept of jurisdiction clearly illustrate that the questions submitted to the urgent applications judge concerned both a seriously contested situation and a contested and novel interpretation of the concept of jurisdiction.
Specifically, the argument that the jurisdiction of a State with nationals in the Syrian Arab Republic extends to those nationals because the State exercises effective control not over the territory or the persons concerned – the only two criteria currently accepted according to jurisprudence – but over the situation of those persons goes well beyond the scope of the debate on the appearance of a right considered before the urgent applications judge. In the context of that debate, the urgent applications judge could not have ruled on the extension of the notion of jurisdiction under the Convention against Torture; the summary proceedings in the present case could not therefore constitute an ad hoc remedy for purposes of the exhaustion of domestic remedies.
The State party also notes that the complainant is substituting herself for the public authorities, which alone are capable of assessing the feasibility of an on-site mission. Admittedly, she claims that she is not necessarily requesting repatriation, yet, it is clear from the documents she has submitted, and particularly from her medical records, that only repatriation would be likely to allow her to receive the medical care she needs. However, the organization of repatriation operations falls exclusively within the discretionary power of the State. Such operations are the culmination of a long and complex procedure, the reins of which must remain in the hands of the Belgian State, which alone is in a position to assess their feasibility and appropriateness. In addition to the obvious complexity of organizing repatriation from a territory in which war has been raging for over 10 years, the State party does not have full authority over questions of repatriation, which it must negotiate with the Kurdish authorities and other stakeholders on the ground. The State alone does not dictate the parameters of such operations, nor does it organize them alone; they are after all, should it need recalling, operations carried out outside the national borders of Belgium.
According to the State party, the repatriation operation of July 2021 confirmed that the agreement of the Kurdish authorities and recourse to diplomatic channels were necessary to carry out repatriations, as well as analyses of the safety and feasibility of repatriation operations involving Belgian civil servants abroad. These factors clearly demonstrate that the State does not have jurisdiction over Syrian camps. The State party’s avowed willingness to repatriate certain categories of people, and the considerable efforts made to give effect to this decision, should in no way be interpreted as establishing that the State party has jurisdiction over Syrian camps. Moreover, the fact that the State has been able to organize repatriations in the past does not mean it could do so again in the future and certainly does not mean that it must.
The State party contests the complainant’s argument that the concept of jurisdiction could or should be extended such that it encompasses not only effective control over a territory or a person, but also influence over a person’s situation or fate. Such an extension of jurisprudence is neither legally nor practically viable. In the present case, the alleged influence of the State party over the situation or fate of the person concerned certainly does not amount to effective control over that person or the territory in which she is located. Such an interpretation would impose far too great a burden on States parties to the Convention and go far beyond the original spirit of the Convention. This approach would be legally flawed in that it distorts the notion of effective control, which can be demonstrated on the basis of a series of clear criteria, to such an extent that the notion no longer has anything to do with effective or even simple control and all to do with potential and conjunctural influence.
Such an extension is not desirable from a practical perspective either. Extending the jurisdiction of the State beyond its territory and its direct sphere of action would place an excessive burden on the State. It would no longer be a matter of an obligation for the State either to refrain from taking action or to take action to remedy the situation of persons falling directly within its sphere of influence, but rather of an obligation to take steps – potentially considerable steps, as in the present case – to remedy the situation of individuals who do not fall directly within its jurisdiction. In short, not every person who can prove that they have a link to a State can legitimately expect that State to be legally required to intervene on his or her behalf just because it might be able to improve his or her situation. It does not therefore seem advisable to set a precedent and extend the concept of jurisdiction beyond the established criteria of effective control over a territory or a person without consensus between the States parties.
Lastly, the State party stresses that, contrary to the complainant’s assertions, the adversarial principle allows the State to contest interim measures requested by the Committee if it considers that it is unable to take appropriate action.
Consideration of admissibility
Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
The Committee notes that the State party contests the admissibility of the complaint on the grounds of non-exhaustion of domestic remedies and lack of jurisdiction.
With regard to the question of the exhaustion of domestic remedies, the Committee notes the State party’s arguments that the complainant, having referred the matter to the urgent applications judge, did not formally raise the question of jurisdiction before the trial judge, who is responsible for ruling on the merits of the case. At the same time, the State party concedes that, in the past, the urgent applications judge has issued injunctions that have, in practice, had a definitive effect on the situation of the persons concerned. The Committee also takes note of the complainant’s argument that a claim for redress before the civil liability court would not have offered any realistic prospect of bringing a prompt and effective end to the violation of her right to respect for her physical and mental integrity. It notes, moreover, that such proceedings would exceed reasonable deadlines, given the fairly long time it takes to process civil liability claims, and that the European Court of Human Rights has already declared that the remedy provided for by article 1382 of the Belgian Civil Code is not, on its own, an effective remedy for resolving complaints about material conditions of detention.
The Committee first notes that the State party has not demonstrated, notably through national jurisprudence, that a claim before the trial judge would have been likely to offer the complainant the possibility of obtaining a legal victory that she could not obtain through a claim before the urgent applications judge. The Committee notes that the State party accepts that the urgent applications judge may issue injunctions that could affect the situation of the persons concerned. The Committee also notes that, in the proceedings before the Court of Cassation – whose role is to verify the legality of judgments – the complainant was given a preliminary negative opinion on the chances of success of an appeal in cassation, which would have enabled the Court of Cassation to rule on whether the decision of the urgent applications judge was in accordance with the law, meaning that the lawyer at the Court of Cassation deemed, after a prima facie examination, that it was.
In the absence of any pertinent information from the State party demonstrating that proceedings before the trial judge, rather than proceedings before the urgent applications judge, would have allowed the complainant to effectively invoke her rights under the Convention, the Committee concludes that the State party’s objection to the admissibility of the complaint for failure to exhaust domestic remedies is not relevant in the present case.
Lastly, the Committee notes that the State party is challenging the admissibility of the communication on the ground that the complainant, who is being held in the north-east of the Syrian Arab Republic, is not under its jurisdiction. The State party maintains that it does not have effective control over the camp in the north-east of the Syrian Arab Republic and does not exercise any control or authority over the complainant through its agents. Furthermore, the State party rejects the argument that it has an obligation under international or national law to provide consular assistance to its nationals in a foreign territory.
The Committee also notes the complainant’s claim that, in practice, in the particular circumstances of the present case, she is totally dependent on and therefore under the jurisdiction of the Belgian authorities, who alone have the power and duty to put an end to the ill-treatment to which she is being subjected.
The Committee recalls that, pursuant to article 22 of the Convention, it receives and considers communications from or on behalf of individuals subject to a State party’s jurisdiction who claim to be victims of a violation by that State party of the provisions of the Convention, provided that the State party has declared that it recognizes the competence of the Committee in that regard.21 As the Committee clarified in its general comment No. 2 (2007), the concept of jurisdiction is not limited to national territory but extends to all areas where the State party exercises, directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law, including detention facilities or other areas over which a State party exercises factual or effective control.22
- Committee against Torture, general comment No. 4 (2017), para. 6. ↩
- Committee against Torture, general comment No. 2 (2007), para. 16. See European Court of Human Rights, Al-Jedda v. the United Kingdom, application No. 27021/08, Grand Chamber, judgment, 7 July 2011, para. 74–86, and H.F. and Others v. France, application Nos. 24384/19 and 44234/20, Grand Chamber, judgment, 14 September 2022, paras. 184–188. See also International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, para. 110. ↩
In the present case, the Committee notes that it is uncontested that the State party was informed of the situation of extreme vulnerability of the complainant, who is detained in a refugee camp in a conflict zone. The detention conditions in such camps have been widely reported in the media as deplorable and have been brought to the attention of the State party’s authorities through the various complaints filed by the complainant at the national level. Together with the complainant’s state of health, these conditions pose an imminent risk of irreparable harm to her life and to her physical and mental integrity. The Committee also notes that effective control is being exercised over the Rawj camp by a non-State actor that has made it publicly known that it does not have the means or the will to care for the women and children detained in the camps and that it expects their countries of nationality to repatriate them. In the circumstances of the present case, the Committee considers that the State party, as the State of nationality of the complainant, has the capacity and the power to protect her rights by taking action to repatriate her or providing other consular responses.23 These circumstances include the State party’s relations with the Syrian Democratic Forces, the latter’s willingness to cooperate, and the fact that, by its own admission, the State party has already repatriated minors and their mothers from camps in the north-east of the Syrian Arab Republic.24
In the light of the foregoing, the Committee concludes that there is a jurisdictional link between the State party and the complainant and is of the view that the present complaint raises substantive issues under articles 2 (1), 11 and 16 (1) of the Convention that should be examined on the merits. As the Committee finds no obstacles to the admissibility of the present communication, it declares it admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.
The Committee notes that, according to the complainant, the State party has a positive obligation under the Convention to facilitate or enable her repatriation. In this respect, the complainant contests the interpretation of the Convention by the national courts, which found that there existed no right to repatriation or consular assistance. The State party also notes the State party’s argument that, under international law, there is currently no subjective right to consular assistance for nationals in a foreign territory. According to the State party, the organization of repatriation operations falls exclusively within the discretionary power of the State.
The Committee notes the conflicting arguments put forward by the parties as to whether States have an obligation to repatriate their nationals under public international law or international human rights law or to provide them with consular assistance outside the territory under their jurisdiction. In this respect, the Committee notes that this issue was at the heart of the debate in the domestic proceedings.
The Committee recalls, first of all, that it is for the courts of the States parties to the Convention, and not for the Committee, to evaluate the facts and evidence in a particular case, unless it can be ascertained that the manner in which such facts and evidence were evaluated was clearly arbitrary or amounted to a denial of justice.25 The Committee notes that, unlike in other cases it has considered,26 in the present case the complainant has had the opportunity to provide supporting evidence and further details about her claims before the national courts, which duly analysed all these factors. However, the Committee is of the view that the complainant has not established that the examination of her claims before the national courts was manifestly arbitrary or amounted to a denial of justice. Furthermore, the Committee considers that the complainant has not provided convincing evidence of a judicial nature that would cast doubt on the conclusions or interpretation of the Belgian courts.
The Committee observes that the national courts examined in detail the facts and evidence presented by the complainant – including in relation to the notion of jurisdiction under international human rights law, with multiple references not only to national jurisprudence but also to the jurisprudence of the International Court of Justice and the European Court of Human Rights – and found that she was not under the extraterritorial jurisdiction of the State party in the Rawj camp and that the State party had no legal obligation to provide her with consular assistance. With regard to the complainant’s arguments in the present case, the Committee notes that the Convention against Torture does not establish a right to repatriation or an obligation to provide consular assistance.27
- See also European Court of Human Rights, H.F. et al v. France, para. 259. ↩
The Committee is therefore of the view that the information submitted by the complainant is insufficient to call into question the legal analysis of the Belgian judicial authorities.
The Committee, acting under article 22 (7) of the Convention, finds that the facts before it do not permit it to conclude that the State party has violated articles 2 (1), 11 and 16 (1) of the Convention. However, the Committee invites the State party to continue its efforts and to take all useful and reasonable humanitarian measures in its power to actively protect the physical and psychological integrity of the complainant and the other Belgian nationals detained in camps in the north-east of the Syrian Arab Republic.