No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 07 July 2009
1. 572 U.N.T.S. p. 133; Trb. 1961 No. 88.
2. Stb. 1963 No. 536. Art. 66; “Legal regulations in force within the Kingdom shall not apply if this application should be incompatible with provisions, binding on anyone, of agreements entered into either before or after the enactment of the regulations.”
3. The Court used the French text.
4. Trb. 1969 No. 101.
5. Cf. Art. 34(3) of the Aliens Act: “Appeal lies to the Crown in the following cases: … (c) if a balancing of the interests involved can not reasonably lead to the decision given on the request for revision.”
6. Art. 12(c): “Withdrawal of a residence permit may take place for one of the following reasons: … (c) if the behaviour of the person concerned is contrary to public peace and order.”
7. Both grounds were advanced on the basis of Art. 34(3) Aliens Act: “Appeal lies to the Crown in the following cases: … (d) if the request for revision has otherwise been decided contrary to the generally recognised priniciples of proper government.”
8. Cf. Art.34(3), Aliens Act: “Appeal lies to the Crown in the following cases: … (b) if the powers of deciding on the request for revision have obviously been used for purposes other than those for which such powers are intended.”
9. Art. 34(2) Aliens Act: “For the purposes of the first para, a request for revision is deemed to be rejected when Our Minister has not made a decision thereon within three months.”
10. Cf. Art. 34(3)(c) Aliens Act, see supra n. 5.
11. Art. 95(2): “Refusal to extend the period of a residence permit of a favoured EEC national as well as the withdrawal of such permit may occur only if he has violated public order, presents a danger to national security or if he has supplied false information on the basis of which a residence permit or an extension thereof was granted him.” Art. 95(4): “For the purposes of paras. 1 and 2, danger to or violation of public order, or danger to national security is established exclusively on the ground of the conduct of the favoured EEC national. Where such conduct has lead to conviction, the nature of the offence and the degree of punishment are to be taken into consideration.”
12. Cf. Art. 34(3)(c) Aliens Act, see supra n. 5.
13. Cf. Art. 15(4) Aliens Act: “Decisions in pursuance of this Article shall not be made except in agreement with Our Minister for Foreign Affairs.”
14. Art. 34(3)(a): “Appeal lies to the Crown in the following cases: (a) if the decision on the request for revision is contrary to a provision binding on everyone.”
15. Cf. Art. 34(3)(c) Aliens Act, see supra n. 5.
16. Art. 4(1) of the Administrative Decisions Appeal Act: “Any natural or legal person whose interests have been directly affected by a decision, may appeal to the Crown in the following cases: … (c) if a balancing of the interest involved could not reasonably have resulted in the decision.”
17. Note by J.R. Stellinga.
18. Art. 15(1): “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationality … may be admitted as refugees by Our Minister.”
19. For text of Art. 34(3)(a) see supra n. 14.
20. Art. 15(2) Aliens Act: “Admittance cannot be refused save for important reasons in the public interest, if refusal would force the alien immediately to return to a country as defined in para. 1.”
21. Cf. Oostvogels, S.A.M., “Foreign deserters and asylum in the Netherlands”, 4 N.Y.I.L. (1973) pp. 172–173, 186–192.Google Scholar
22. Note by C. Bronkhorst. Summarized in 3 D.D. (1973) No. 89.
23. Stb. 1899 No. 15. Art. XIII provides that extradition can take place only if there is sufficient evidence, according to the laws of the requested State, to justify committal for trial had the offence been committed within that State's territory.
24. Art. 28(2): “If the Court finds
- oither…,
- or that the request for extradition is not capable of allowance,
- or that, with regard to the person claimed, there can clearly be no assumption of guilt concerning the acts for which extradition is requested,
the Court will in its judgment declare extradition inadmissible.”
25. Summarized in 3 D.D. (1973) No. 144.
26. Art. 12(1) reads: “Extradition is admissible subject to the general stipulation that only with the express consent of Our Minister will the claimed person be prosecuted, punished or in any other way deprived of his personal liberty in respect of offences committed prior to his extradition and for which he has not been extradited.”
27. Note by Th.W. van Veen.
28. Cf. 5 N.Y.I.L. (1974) pp. 309–311.
29. Note by Th.W. van Veen. Summarized in 4 D.D. (1974) No. 151.
30. Art. 5(3) reads: “In the case of conviction and sentence in absentia … extradition will be allowed only when the person whose extradition is requested has been or still is afforded sufficient opportunity to prepare his defence.”
31. Stb. 1963 No. 536. Art. 4(2) reads: “The admission and expulsion of aliens and the general conditions under which, in respect of their extradition, treaties may be concluded with foreign Powers shall be regulated by law.”
32. Trb. 1962 No. 97.
33. Art. 137(e): (1) Any person who for reasons other than the provision of factual information (i) publishes an utterance which he knows, or which he has reasonable cause to suspect is insulting to another group of persons on account of their race, religion or belief, or which incites to hatred of or discrimination against other persons, or to violence against the person or property of others on account of their race, religion or beliefs; or, (ii) distributes, or has in his possession with the intention of effecting distribution or publication, any object which he knows or which he has reasonable cause to suspect contains such an utterance, shall be liable to a term of imprisonment not exceeding six months or a fine not exceeding five thousand guilders.…” Cf. also 4 N.Y.I.L. (1973) pp. 431–433.
34. Art. 137(c): “Any person who by means of the spoken or written word or pictorially with intent gives public expression to views insulting to other persons or groups on account of their race, religion or belief, shall be liable to a term of imprisonment not exceeding one year, or a fine not exceeding ten thousand guilders.” Art. 137(d): “Any person who, by means of the spoken or written word or pictorially with intent publicly incites to hatred of or discrimination against other persons or to violence against the person or property of others on account of their race, religion or belief, shall be liable to a term of imprisonment not exceeding one year or a fine not exceeding ten thousand guilders.”
Cf. also 4 N.Y.I.L. (1973) pp. 431–433.
35. Note by Th.W. van Veen. Comments by Kalmthout, A. v. and Quint, H., “Met het systeem perspectief blijven we altijd zitten”[The “system approach” continues to prevail], 23 A.A. (1974) pp. 259–266Google Scholar, and by Mulder, G.E. and Schootstra, H. “De voorwoordelijke veroordeling” [The suspended sentence] 104 Handelingen 1974 der Nederlandse Juristen Vereniging. Part 1, second section, pp. 51–55Google Scholar [report to the 1974 annual meeting of the Nederlandse Juristen Vereniging].
36. 213 U.N.T.S. p. 221; Trb. 1951 No. 154. Art. 4(2): “No one shall be required to perform forced or compulsory labour.”
37. De Martens N.R.G., 3rd. series, vol. 27, p. 471; Stb. 1933 No. 236. Art. 2: “For the purposes of this Convention the term “forced or compulsory labour” shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” The Convention as modified by the Final Articles Revision Convention of 1946 is also mentioned in 39 U.N.T.S. p. 56.
38. Comment by Oomen, C.P.Chr.M., “‘Werken’ in plaats van ‘zitten’: een gewenste nieuwe ontwikkeling in de strafrechtspraak?” [Work instead of custody: a desirable development in the administration of penal justice], 47 N.J.B. (1972) pp. 257–267Google Scholar, and by Jonkers, W.H.A., “Gedwongen tewerkstelling als sanctie” [Compulsory labour as a penal sanction], Proces (1972) pp. 144–155.Google Scholar
39. N.J. 1973 No. 44 with note by Th.W. van Veen. Comment by Wennekers, N., Quint, H. and Kalmthout, A. v., “Wie niet zitten wil, mag ook niet werken” [Those who will not accept custody may not work either], 22 A.A. (1973) pp. 115–132.Google Scholar
40. Comment by Wennekers, N., Quint, H. and Kalmthout, A. v., “Het systeemperspectief ziet het wel zitten” [The ‘system approach’ remains satisfactory] 22 A.A. (1973) pp. 181–184.Google Scholar
41. N.J. 1974 No. 23, with note by Th.W. van Veen.
42. N.J. 1975 No. 39, with note by Th.W. van Veen. In cassation, K. contended that the Court of Appeal had wrongfully decided that the special condition was contrary to Art. 2 of the 1930 Convention. The Solicitor-General [Advocaat-Generaal] shared this view in his conclusion. The Supreme Court, however, could dismiss the plea without going into the opinion expressed by the Court of Appeal.
43. Note by A.L. Melai. Summarized in 4 D.D. (1974) No. 62.
44. Art. 6(1): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing …”.
45. Stb. 1935 No. 554. Art. 40: “ (1) Anyone who causes to run a motor-vehicle with which a provision existing under or flowing from this Act is infringed, is, if the identity of the driver who committed the offence cannot be established, under an obligation to make the driver's identity known on the first demand … within the time stated which shall amount to at least 48 hours. (2) Not punishable is anyone who, being unable to make the driver's identity known, makes known the identity of the person at whose disposal the motor-vehicle has been placed by him.”
46. Art. 6(2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
47. This construction of Art. 40 was previously formulated in a Judgment of the Supreme Court of 21 November 1972, N.J. (1973) No. 123, V.R. (1973) No. 127. Summarized in 3 D.D. (1973) p. 56. Comment by Herstel, A. in V.R. (1973) pp. 338–339.Google Scholar
48. Stb. 1959 No. 301. Art. 49(1) reads: “Anyone who, within the Realm, carries on a trade or profession shall produce to the Commissioner any books and other documents which it may be important to inspect in order to establish the facts that may influence tax levies on third parties.”
49. Art. 8(1): “Everyone has the right to respect for his private and family life, his home and his correspondence.”
50. Comment by van Krieken, P.J. in 11 Intermediair (1975) No. 11, p. 15.Google Scholar
51. Art. 9: “(1) Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest one's one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
52. Text of the Decree in “Waarom ik dienst weiger” [Why 1 refuse military serve], Bilthoven: Ambo, 1973, pp. 118–119.Google Scholar
53. Art. 114 punishes intentional disobedience.
54. M.R.T. (1974) p. 269.
55. Minutes of the hearings of expert-witnesses for the defence on 20 March 1974 are reported in Kernvraag No. 45 (1974) p. 145 (H.W.Tromp), p. 146 (Th.C. van Boven).
56. Note by Th.W. van Veen. Summarized in 4 D.D. (1974) No. 106.
57. Art. 6(3)(a): “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.”
58. Stb. 1973 No. 246.
59. For the text of Art. 9(1) see supra n. 51.
60. Cf. Supreme Court 13 April 1960, N.J. (1960) No. 436; Yearbook of the European Convention on Human Rights (1960) pp. 648–673, at pp. 668–70.Google Scholar
61. Comments by Enschedé, Ch.J., “Politierechtspraak en politieke rechtspraak” [Political motivation in the administration of justice by the Politierechter], 4 D.D. (1974) pp. 265–267Google Scholar and by van Veen, Th.W., “De Iraanse ambassade” [The Iranian Embassy], 4 D.D. (1974) pp. 343–348.Google Scholar
62. Art. 138(1): “Anyone who unlawfully trespasses upon a house, or the enclosed locality or premises occupied by another person,… is liable to a term of imprisonment not exceeding six months or a fine not exceeding Df1.600.” Art. 138(3): “The penalties determined in para. 1 may be increased by a third, if two or more persons commit the offence in conjunction.”
63. Note by Th.W. van Veen.
64. Art. 134 bis (1): “Anyone who … attempts to incite another person to commit an offence, shall be liable, if no offence or punishable attempt thereto has followed, to a term of imprisonment not exceeding five years or a fine not exceeding Df1.600,…”.
65. Art. 282(1): “Anyone who wilfully deprives, or has deprived another of his liberty shall be liable to a term of imprisonment not exceeding seven years.”
66. Without specifically mentioning it, the Court applied Art. 5(2) of the Penal Code, which reads: “The Dutch Penal Code is applicable to Dutch nationals committing outside the Netherlands: (1) … (2) an offence regarded as a misdrijf in Dutch criminal law, and punishable under the law of the country where it has been committed.”
67. Art. 539(b)(1): “Persons other than investigation officers may exercise the powers provided by ARt. 539a or section two of this Title only by order of the Public Prosecutor, unless this order could not be waited for.” Art. 539(a) and “section two of this Title” contain powers in relation to the investigation of criminal offences outside the territorial competence of a District Court.
68. Note by J.R. Stellinga.
69. Note by the Editorial Board.
70. De Martens N.R.G., Vol. 20. p. 355; Trb. 1955 No. 161. Art. 1: “La navigation du Rhin et de ses embouchures, depuis Bâle jusqu'à la pleine mer, soit en descendant soit en remontant, sera libre aux navires de toutes les nations pour le transport des marchandises et des personnes, à la condition de se conformer aux stipulations contenues dans la présente Convention et aux mesures prescrites pour le maintien de la sécurité générale.
Sauf ces règlements, il ne sera apporté aucun obstacle, quel qu'il soit, à la libre navigation.
Le Leek et le Waal sont considerés comme faisant partie du Rhin.”
Art. 30: “Les Gouvernements riverains veilleront à ce que la navigation sur le Rhin ne soit entravée ni par des moulins ou autres usines établies sur le fleuve, ni par des ponts ou autres ouvrages d'art.
Ils auront soin, surtout, que le passage des ponts puisse s'effectuer sans occasionner de retards.
Il est interdit d'exiger aucune rétribution pour l'ouverture ou la fermeture des ponts.
Aucune concession ne pourra être accordée, à l'avenir, pour l'établissement de nouveaux moulins flottants.”
71. Section 25 refers to the following Acts and Protocols: “ … In respect of the railway bridge over the Waal near Zaltbommel the Central Commission for the Navigation of the Rhine drafted, a Protocol at Mannheim on 6 September 1864; part of its articles were, having regard to Art. 57 of the Constitution approved by Act of 7 August. 1865, Stb. 1865 No. 100.
In respect of the railway bridge over the Waal near Nijmegen the Central Commission for the Navigation of the Rhine drafted a Protocol at Arnhem on 12 October 1874; part of its articles were, having regard to Art. 57 of the Constitution, approved by Act of 3 June 1875, Stb. 1875 No. 98.
These Protocols provide (briefly) that compensation by the National Treasury is payable to such shipping industries as have been forced to go to additional expense as a consequence of fixed bridges;…”
72. His accomplice A.A.M.N. born in Palestine, was charged with the same offences. He was also found guilty of arson. N. was likewise given five years imprisonment, the time spent in costody pending trial counting towards the sentence.
A résumé of both cases is given by Gianotten, H.J.C. in 1 Air Law (1975) No. 1, pp. 33–34.Google Scholar
73. Art. 385 a: “ 1. Any person who by force, threat thereof or intimidation seizes or exercises control of an aircraft, or causes it to change course, shall be punished with imprisonment of not longer than twelve years. 2. If two or more persons commit the act jointly or in conspiracy, or if such act has caused grave physical injury, or has been performed with the intention of unlawfully depriving a person of his freedom, it is punishable by imprisonment of not longer than fifteen years.”
This Article was inserted in the Penal Code as Art. 383 bis by the Act of 31 March 1971 relating to the punishability of forcible seizure or exercise of control of aircraft and of certain other acts or omissions which may endanger the safety and the undisturbed operation of civil aviation (Stb. 1971 No. 166). See 2 N.Y.I.L. (1971) p. 266. The Article was renumbered as 385 a by the Act of 10 May 1973 relating to the implementation of the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft and of the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Stb. 1973 No. 228). See 4 N.Y.I.L. (1973) p. 439. The latest Act added subparagraph 7 to Art. 4 of the Penal Code. See 4 N.Y.I.L. (1973) p. 437. Art. 4 (7)(b): “The Netherlands penal law applies to anybody who has committed any of the following offences outside [the territory of ] the Netherlands: … 7 … (b) the crime as defined in Art. 385a, committed on board an aircraft in flight, if the place of take-off or that of actual landing of the aircraft is situated outside the territory of the State of registration, and if the alleged offender is in the Netherlands;…”
74. Stb. 1968 No. 620. Art. 3: “Exports to Southern Rhodesia other than those from the free market are prohibited.” See also 3 N.Y.I.L. (1972) p. 231 and 5 N.Y.I.L. (1974) p. 358.
75. Stb. 1935 No. 599.
76. Stb. 1966 No. 289. Art. 3(1): “Export of goods to Southern Rhodesia without Our Minister's consent is prohibited.” See also supra n. 74.
77. Stb. 1962 No. 295.
78. Treaty concerning the reciprocal recognition and enforcement of judicial decisions and other executory instruments in civil and commercial matters, 30 August 1962; 547 U.N.T.S. p. 173; Trb. 1963 No. 50.
79. See 3 N.Y.I.L. (1972) pp. 301–304.
80. The 1950 agreement between France and Yugoslavia has been discussed by Stuyt, A.M. in “Misconceptions about International Law”. 5 N.Y.I.L. (1974) pp. 36–37, 39, 41–44.Google Scholar
81. See 4 N.Y.I.L. (1973) pp. 390–391 and 5 N.Y.I.L. (1974) p. 291–292.
82. See 5 N.Y.I.L. (1974) pp. 290–296; 14 I.L.M. (1975) pp. 71–77.
83. The note of 5 May 1974 reads as follows:
“… The [French] Ministry of Foreign Affairs presents its compliments to the Embassy of the Kingdom of the Netherlands and has the honour to inform the Embassy that the Socialist Federal Republic of Yugoslavia had drawn the Ministry's attention to a Judgment of the Supreme Court of the Netherlands delivered on 26 October 1973 in the case of “Société européenne d'études et d'entreprises” versus the Socialist Federal Republic of Yugoslavia.
By this Judgment the Supreme Court has reversed a decision of the Court of Appeal of The Hague which had refused the exequatur fo an arbitral award against the State of Yugoslavia. Therefore, the case has been remitted to the Court of Appeal of The Hague.
The Ministry of Foreign Affairs considers it must inform the Embassy of the views of the French Government on this affair.
The said arbitral award has been delivered on the basis of an arbitral clause inserted in a contract concluded between the “Société européenne d'études et d'entreprises” and the Yugoslav Government in 1932.
On 18 November 1950, however, the French and Yugoslav Governments concluded an agreement relating to this contract in the form of an exchange of notes.
From this agreement and the agreed instalments of payment included therein it follows that the “Société européenne d'études et d'entre prises” has been indemnified for the totality of its claims that would arise from the contract of 3 January 1932. Consequently, this contract has no longer any legal consequence and this applies in particular to the arbitral clause”.