CAT/C/67/D/813/2017
On 30 April 2009, the charges against the complainant were formally dismissed by the
Brussels Court of First Instance.
2.8
The complainant explains that on 28 April 2005, Mr. Clareboets was questioned by
the Belgian investigative judge about the interrogations of the complainant and of another
Belgian detainee at Guantanamo Bay (in the course of a criminal investigation being carried
out against the complainant). According to Mr. Clareboets, the two detainees had complained
that the circumstances of their detention had been very difficult: they were unaware of the
reasons for their detention at Guantanamo Bay, and its estimated duration; they had not been
charged with any offence, but had been subjected to many interrogations by the United States
forces; and they did not have access to a lawyer for the entire duration of their detention.
2.9
The complainant claims that despite their knowledge – and the information available
– about his unlawful detention at Guantanamo Bay, none of the Belgian authorities involved
took any effective steps towards his release, nor carried out any genuine investigation into
the complainant’s allegations of torture inflicted by the United States authorities. The
complainant adds that he was not released from Guantanamo Bay despite the fact that
Mr. Clareboets had actually advised the Belgian authorities that he would not pose any threat
to the national security of Belgium if he were returned to that country.5
2.10 The complainant claims to have exhausted all available domestic remedies. On
22 November 2011, he filed a civil party complaint before the investigative judge at the
Brussels Court of First Instance, against Mr. Clareboets and other unknown persons (marked
in the complaint as “X”).6 The complainant denounced the fact that Belgian authorities had
remained inactive for years despite their clear obligations to intervene as they knew about
the acts of torture perpetrated at Guantanamo Bay against the complainant. In two decisions,
dated 18 January 2012 and 5 October 2012, the complaint was declared inadmissible, since
one of the unknown suspects marked in the complaint as “X” was undoubtedly a member of
the Federal Prosecutor’s Office who enjoyed “jurisdictional privilege”. 7
2.11 The complainant explains that the investigative judge ordered the file to be sent to the
Crown Prosecutor “to act as he should”, and that it appears that the Crown Prosecutor sent
the file to the Federal Prosecutor. On 8 August 2013, the Federal Prosecutor requested the
Brussels Court of First Instance to declare the complaint inadmissible, to relieve the
investigative judge of his duties and to transfer the responsibility for the investigation to the
Federal Prosecutor’s Office.
2.12 At the hearing of 10 December 2013 before the Brussels Court of First Instance, the
complainant’s lawyers submitted that a decision to relieve the investigative judge of his
duties and to transfer the file to the Federal Prosecutor’s Office would amount to a violation
of articles 3, 6 and 13 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights) since it would result in the Federal
Prosecutor’s Office having to investigate itself.
2.13 On 7 January 2014, the Brussels Court of First Instance declared the complaint
inadmissible, referring in its reasoning to the “jurisdictional privilege” exemption, and
decided to relieve the investigative judge of his duties and to transfer the file to the Federal
Prosecutor’s Office.8
2.14 The complainant further explains that on 20 March 2014, the Brussels Chamber of
Indictment partially dismissed his appeal against the decision of the Brussels Court of First
Instance. It confirmed the inadmissibility of the complaint, but concluded that the file should
be transferred to the Prosecutor-General of the Court of Appeal rather than to the Federal
Prosecutor since the latter should not be investigating his own case.
5
6
7
8
The complainant includes a report by Mr. Clareboets to the Federal Public Prosecutor, dated 20 April
2005.
The complainant attached the civil party complaint, dated 22 November 2011.
The complainant includes both decisions, dated 18 January 2012 and 5 October 2012. Both have
exactly the same content and were issued by the same investigative judge, P. van Aelst.
The complainant annexed the decision, which is dated 7 January 2014.
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