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Published online by Cambridge University Press: 07 July 2009
1. Trb. 1969 No. 101.
2. The District Court stated that application in Surinam was possible under Article 60 of the Convention.
3. For the declaration of intent see 8 NYIL (1977) p. 256.
4. On this date Surinam acquired independence.
5. Stb. 1954 No. 596. Article 40: “Judgments of Courts in the Netherlands, Surinam or the Netherlands Antilles, and orders issued by them, as well as certified copies of authentic acts issued by them, may be enforced throughout the Kingdom, with due observance of the legislation in the Country where enforcement is effected.”
6. Agreement of 27 August 1976, Trb. 1976 No. 144.
7. NJ (1977) No. 578. Summarized in ELD (1978) pp. 155, 159.
8. The Advertising Code Disciplinary Commission was set up by organizations representing advertisers, the cinema, the press, the public relations industry and consumers, to ensure that the advertisements of its members conform to the Advertising Code agreed upon by these organizations. Article 1 of the Code reads: “Any advertisement should be in accordance with the law, the truth and the standards of good taste and decency.”
9. The Advertising Code Disciplinary Commission confined itself to a judgment on the facts cited in the advertisement alongside the ideas which were being propagated. The Commission emphatically declined to enter into the merits of the ideas, and accordingly, dismissed the complaint about the statement: “Swapo seeks supremacy”, because the Committee for Dialogue with South Africa was here giving its own opinion on Swapo and its objectives, which could not be established to be objectively true or false. In view of the right to freedom of expression, the Commission held that it was not for it to judge the objective truth of this opinion.
10. Note by P. den Boer.
11. Summarized in 46 Belastingbeschouwingen (1977) p. 139.
12. Act of 2 July 1959, Stb. 1959 No. 301. Article 40: “When part of an income is received from an international organization and that part, by virtue of international legal provisions, is exempt from Dutch income tax levies, the income tax due on the remainder of the income will, except in so far as another method of calculation has been prescribed by those provisions, be the difference between the tax calculated without account being taken of the exemption and the tax which, according to the rules made by Our Minister, should be ascribed to the exempted part of the income.”
13. Trb. 1964 No. 22. Article 18(1): “Subject to the conditions and following the procedure laid down by the Council, within a period of one year from the date of the entry into force of the Convention, the Director General and the staff members of the Organization shall be subject to a tax, for the benefit of the Organization, on salaries and emoluments paid by the Organization. From the date on which this tax is applied, such salaries and emoluments shall be exempt from national income tax; but the Member States shall retain the right to take these salaries and emoluments into account for the purpose of assessing the amount of taxation to be applied to income from other sources.”
14. For the texts see under Held.
15. Cf., Trb. 1961 No. 62 p. 87.
16. Institute's Collection No. 1126.
17. Stb. 1976 No. 468; cf., also 8 NYIL (1977) pp. 328–330.
18. 360 UNTS p. 117; Trb. 1955 No. 42.
19. The Explanatory Memorandum to the Draft Budget for 1978 for the Ministry of Justice includes the following information (Bijl.Hand.II 1977/1978 – 14.800 VI No. 2 pp. 46, 47): “During 1976, 1044 appeals were made to the Judicial Devision [Afdeling Rechtspraak] of the Council of State [Raad van State] (in 1975: 171). Of the 1044 cases, 796 involved decisions made within the framework of regularization procedures. On 1 May 1977, the position relating to these cases was as follows: 93 appeals had been dismissed; 69 appeals had been declared non-receivable; in 18 cases the contested decision had been reversed; 45 appeals had been withdrawn after a residence permit had been granted on the grounds of fresh evidence or changed circumstances; 6 appeals had been withdrawn for other reasons; 565 appeals were pending. The situation as at 1 May 1977 of the 248 appeals related to other matters was as follows: 28 appeals had been dismissed; 24 appeals had been declared non-receivable; in 4 cases the contested decision had been reversed; 30 appeals had been withdrawn after a residence permit had been granted on the grounds of fresh evidence or changed circumstances; 3 appeals had been withdrawn for other reasons; 159 appeals were pending. In 1976, summary proceedings involving questions of the law on aliens were instituted against the State in 30 cases; in the period from 1 January to 1 May 1977, this occurred in 24 cases. In the cases settled in 1976, 26 claims were dismissed and 4 allowed. Of the 24 claims made in the period from 1 January to 1 May 1977, 16 were dismissed, 1 was allowed and, in 7 cases, a settlement with the plaintiff resulted in withdrawal or adjournment of the claim.”
20. Summarized in ELD (1978) pp. 19, 20–21, 29.
21. Trb. 1966 No. 199. Cf.; van Wees, G.N.J. “Compensation for Dutch property nationalized in East-European Countries”, 3 NYIL (1972) pp. 92–93.CrossRefGoogle Scholar
22. Stb. 1969 No. 183.
23. With note by G.E. Mulder.
24. Another train hijacker was also sentenced to eight years, the third to six years. Three of the four school raiders were sentenced to nine years, the fourth to seven years.
25. With comment by the Editors. Discussed by Swart, A.H.J. in De toelating en uitzetting van Vreemdelingen [The admittance and expulsion of aliens], Deventer: Kluwer, 1978 pp. 132 n. 156, 306 and 394.Google Scholar
26. With comment by the Editors.
27. In its Judgment of 25 March 1977 No. 100, in I.H. v. the State-Secretary of Justice, the Crown took a similar view. The Crown found that the State-Secretary had correctly decided not to admit the Hungarian, H., as refugee, since it appeared (1) that it could not be maintained that H.'s statements ruled out any doubt as to the answer to the question of whether he was to be regarded as a refugee, and (2) that H. had been granted a residence permit as a person “entitled to asylum”, so that he did not have to return to his home country. The State-Secretary granted H. asylum, because it could be assumed that, in the event of his return to Hungary, he would meet with serious difficulties because he had not returned at the correct time. (Gids Vreemdelingenrecht No. D 12–7, Rechtspraak Vreemdelingenrecht (1977) No. 28, with comment by the Editors).
28. 189 UNTS p. 137; Trb. 1951 No. 131 amended by Protocol of 31 January 1967, 606 UNTS p. 267, Trb. 1967 No. 76. Article 1 (A): “For the purposes of the present Convention the term “refugee” shall apply to any person who … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”
29. Article 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.”
30. With comment by the Editors.
31. With note by C.A.J. Groenendijk.
32. The Judicial Division of the Council of State delivered a similar judgment in S.E.B. v. the State-Secretary of Justice (Judgment of 28 December 1977), Institute's Collection No. 1220.
33. Other relevant judgments of the Supreme Court in cases involving extradition, in 1977, include: (a) 18 January 1977 (R.L. v. Public Prosecutor), summarized in D.D. (1977) No. 68. (b) 25 October 1977 (N.M. v. Public Prosecutor), NJ (1978) No. 229, summarized in D.D. (1978) No. 21. (c) 15 November 1977 (M.V. de M.A. v. Public Prosecutor), NJ (1978) No. 190, summarized in DD (1978) No. 46.
34. With note by Th.W. van Veen. Summarized in DD (1977) No. 83.
35. In his advice to the Supreme Court, the Solicitor General [Advokaat-Generaal] replied in detail to D.'s counsel's reference to the Nottebohm Case. Reliance on this Case was dismissed by the Solicitor General. His advice is printed after the judgment of the Supreme Court in NJ (1977) No. 229.
36. Summarized in DD (1977) No. 87.
37. De Martens, NRG 2nd Series, Vol. 24 p. 636; Stb. 1879 No. 42.
38. By a decision of 25 October 1977, the Supreme Court dismissed the claim on the ground that the request for extradition had been withdrawn (NJ (1978) No. 229).
39. Summarized in DD (1977) No. 97 and ELD (1978) p. 115. Mentioned by Alkema, E.A. in “Het Europese Verdrag voor de Recht van de Mens. Overzicht rechtspraak 1975–1977” [The European Convention on Human Rights. Survey of judicial decisions 1975–1977], Bestuurswetenschappen (1977) pp. 479–495, at p. 489.Google Scholar
40. Article 5 (1): “Extradition shall only be granted (a) to assist criminal proceedings by the authorities of the requestion Party in connection with allegations that the person whose extradition is requested has been guilty of a criminal offence for which, under both the laws of the requesting Party and of the Netherlands, a prison sentence of at least one year may be imposed; (b) to carry out a prison sentence of four months or more within the territory of the requesting State in respect of an offence dealt with under (a).”
41. De Martens, NRG, 2nd series, Vol. 22 p. 568, Stb. 1896 No. 168.
42. In A.I.M.A.G. v. Public Prosecutor the Supreme Court also held that the facts should be judged not by Article 5 of the Extradition Act, but by the applicable Extradition Treaty, in this case the Benelux Extradition Treaty (Judgment of 6 September 1977, DD (1977) No. 256, NJ (1978) No. 499). The question of applicability of the Extradition Treaty rather than the Extradition Act was also decided in O.B. v. Public Prosecutor (Supreme Court, 6 September 1977, DD (1977) No. 255, NJ (1978) No. 500).
43. Cf., Supreme Court, 28 June 1977, DD (1977) No. 237, NJ (1978) No. 405. (A.P. v. Public Prosecutor). In this Case the Court held that the question whether the judge in the German Federal Republic had correctly and lawfully issued a arrest warrant [Haftbefehl] was not for the Netherlands judge, who was called upon to consider the admissibility of the requested extradition, to decide.
44. 213 UNTS p. 221; Trb. 1951 No. 154.
45. Note by Th.W. van Veen. Summarized in DD (1977) No. 220 and ELD (1978) p. 115. Comment in Informatie Bulletin van het Medisch Juridisch Comité voor Politiek Gevangenen (1978) No. 12 pp. 38–39.Google Scholar
46. On the same date, and in respect of the same offence, the Supreme Court also declared admissible, the extradition of the Italian F.S. to Italy.
47. Note by Th.W. van Veen. Summarized in DD (1977) No. 250.
48. 359 UNTS p. 273; Trb. 1965 No. 9. Art. 2(1): “Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty …”
49. Amended again by the Act of 23 June 1976, Stb., 1976 No. 424.
50. Cf., 5 NYIL (1974) pp. 309–311.
51. Article 10: “Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment.”
52. Cf., 6 NYIL (1975) pp. 351–352.
53. The same view was held by the Supreme Court in P.A. v. Public Prosecutor (Judgment of 28 June 1977, NJ 1978 No. 438. Summarized in DD (1977) No. 226).
54. A day before the District Court of Maastricht was to deliver judgment on the admissibility of the extradition, P. brought an action against the State of the Netherlands (summary proceedings) before the District Court of The Hague, contending that his extradition would be unlawful because the consequences of extradition to Sweden would be particular hardship for him in connection with his poor health. The President of the Court considered, however, that a potential tort could not be imputed to the State until the District Court of Maastricht had made a decision and adjourned the case until the tenth day after the date on which the Minister gave his decision on the extradition under Article 33(1) of the Extradition Act. (Judgment of 13 April 1977). The Minister authorized extradition on 14 July 1977. The Court made its final decision in summary proceedings on 11 August. Although ill-health within the meaning of Article 10(2) of the Extradition Act was established, extradition was not held to be unlawful on the ground, inter alia, that the note submitted by the Swedish Embassy made it clear that every care had been, and would continue to be taken of P.'s health in the Swedish prison.
55. With comment by the Editors.
56. Ireland had requested Gallagher's extradition in order to prosecute him for an armed raid on a post-office. He argued before the Supreme Court that his extradition would be contrary to Article 3 of the European Extradition Treaty and Article 11 of the Extradition Act, since these Articles barred extradition in respect of political offences. In addition, his extradition would be incompatible with Article 6(3) of the European Convention on Human Rights, since the fulfilment of this Article in the event of trial in Ireland would not be guaranteed.
The Supreme Court dismissed these grounds of appeal. The Court found that, since extradition was requested in respect of an ordinary offence, which did not amount to a political offence in the law of the requesting State, neither Article 3 of the European Extradition Treaty nor Article 11 of the Extradition Act could be successfully relied on, since these Articles only contemplated offences which could be regarded as political offences in the law of the requesting State. (It appeared from the notes of the hearing in the District Court, that Gallagher raided the Post Office for the purpose of getting money to buy weapons to be used in the struggle to dislodge the English from Northern Ireland). The argument that Article 6(3) of the European Convention on Human Rights had been violated also failed, in the view of the Supreme Court, since its was not based on matters of fact. (NJ (1978) No. 35, with note by Th.W. van Veen. Summarized in ELD (1978) p. 259. In his advice to the Court (reported in NJ) the Solicitor General [Advocaat-Generaal] discusses in detail the relationship “extraditionpolitical offence”.)
57. See Rule 36 of the Rules of Procedure of the European Commission of Human Rights in Yearbook of the European Convention on Human Rights, 1974 p. 52. On 15 December 1977 the European Commission on Human Rights declared the application of Gallagher against the Netherlands inadmissible, see NJ (1978) No. 381 with note by E.A. Alkema. Alkema mentions, inter alia, that on 14 November, the day that Gallagher's complaint was submitted to the Commission the President of the Commission requested the Netherlands Government by telephone to delay the extradition “until information was received which would satisfy the Commission”. The Netherlands Government refused and extradited Gallagher on the same day.
58. With comment by the Editors.
59. The plaintiff had entered the Netherlands unlawfully, and when applying for a residence permit he had stated as his purpose: paid employment.
59a. The same problem has been dealt with by the Judicial Division [Afdeling Rechtspraak] of the Council of State [Raad van State] In the case H. Chakroun v. Minister of Social Affairs it decided that ”refusal of a residence permit cannot be, and as appears from the papers in the case, has not been based in the sole ground that the appellant was not in the possession of a work permit (Judgment of 24 May 1977, AB (1978) No. 347).
60. With comment by the Editors. Discussed by Swart, A.H.J. in De toelating en uitzetting van vreemdelingen [The admittance and expulsion of aliens], Deventer Kluwer, 1978 p. 44 n. 22, p. 45 n. 27.Google Scholar
61. With comment by the Editors.
62. 213 UNTS p. 221, Trb. 1951 No. 154. Article 8: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
63. With comment by the Editors.
64. 360 UNTS p. 130; Trb. 1955 No. 42. Article 28: “The Contracting States shall issue to stateless persons lawfully staying in their territory, travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other stateless person in their territory; they shall in particular give symphathetic consideration to the issue of such a travel document to stateless persons in their territory who are unable to obtain a travel document from the country of their lawful residence.” Article 31: “1. The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a stateless person shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a stateless person a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.”
65. With comment by the Editors.
66. C. had entered the country with a tourist visa valid for three months. Should an alien intend to stay longer, he must, on entering the country, possess permission for temporary residence. (Article 41 of the Aliens Decree).
67. On 1 March 1977, the Act of 8 September 1976 entered into force (Stb. 1976 No. 465), including, inter alia, a new Article 5 for the Nationality Act. The relevant Article 5(1) (a) reads: “1. The Minister of Justice may, upon request, grant Netherlands nationality to any person, (a) who has at any time possessed Netherlands Citizenship (Nederlanderschap) or the status of a Netherlands subject (Nederlands onderdaan niet-Nederlander), who has attained majority, and who is domiciled or factually resident in the Kingdom at the time of request;” cf., 8 NYIL (1977) pp. 325–328. C. was born in Indonesia and his mother possessed Dutch nationality at that time. In 1951, when C. was three years old, she opted for Indonesian nationality. The President of the Court assumed that C. also acquired Indonesian nationality in 1951.
68. The meaning of the phrase “or whether he had been granted a residence permit” is not very clear, for, as appears from the subsequent procedure, there is a correlation between the liability to be granted naturalization and the possession (for an indefinite period) of a residence permit. This correlation played a part in the decision of the Judicial Division [Afdeling Rechtspraak] of the Council of State [Raad van State] in G.B. v. the State-Secretary of Justice, of 3 November 1977 (AB (1978) No. 127, with note by J.H. van Veen; Gids Vreemdelingenrecht No. D 14–4 and Rechtspraak Vreemdelingenrecht (1977) No. 50). The Judicial Division found that the State-Secretary, when refusing B's request for review of the decision to refuse the residence permit, had not taken into account B.'s request for naturalization. The Judicial Division considered that, having regard to the significance which a favourable decision on the request for a residence permit could have for a decision on the request for naturalization, the State-Secretary, by leaving this request out of consideration, had failed to exercise due care. The decision was set aside.
69. The requirement of the possession of a residence permit without restrictive conditions as to the purpose of residence is not laid down in the Nationality Act, but in Article I of the Naturalization Directive [Richtlijnen van Naturalisatie], of 10 March 1977, Stc. 1977 No. 81. p. 4: “Dutch nationality may be granted only to those persons who are allowed under the Dutch … provisions on admittance and expulsion of aliens to stay for an indefinite period in the Netherlands…”
70. Summarized in DD (1977) No. 53 and ELD (1978) pp. 64, 100.
71. Before the Supreme Court, J. stated that 70% of the inhabitants of the province of Friesland spoke Frisian as their native language.
72. 660 UNTS p. 195; Trb. 1966 No. 237.
73. Stb. 1971 No. 96. Cf., 4 NYIL (1974) pp. 431–433.
74. Article 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
75. With note by Th. W. van Veen.
76. With comment by the Editors.
77. A. was born in Paramaribo, Surinam.
78. Discussed by Barnhoorn, L.A.N.M. in “De term ‘ras’ in de Uitvoeringswet van het Anti-Rassendiscriminatieverdrag” [The term “race” in the Act implementing the Anti-Discrimination Convention], Nederlands Juristenblad (1977) pp. 969–977 at pp. 975 et seq.Google Scholar
79. The leaflet said, among other things, that the authorities should see that the groups of persons in question left the country as soon as possible.
80. Article 137e: “(1) Any person who for reasons other than the provision of factual information (i) publishes a remark 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 beliefs, or which incited 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 he has reasonable cause to suspect contains such a remark, shall be liable to a term of imprisonment not exceeding six months or a fine not exceeding five thousand guilders.” Cf., 4 NYIL (1973) pp. 431–433.
81. Institute's Collection No. 1141. In one case, judgment was not delivered until 7 June 1977.
82. See supra n. 80.
83. Entitled Gebruik en misbntik van de psychologie [Use and misuse of psychology], published by Het Spectrum.
84. Article 429 quater: “Any person who in the exercise of his profession or business, discriminates against a person on account of his race when preferring goods or services or when fulfilling an offer, shall be liable to a term of detention [hechtenis] not exceeding one month or a fine not exceeding one thousand guilders”. Cf., also 4 NYIL (1973) p. 432.
85. Institute's Collection No. 1150. Discussed by L.A.N.M. Barnhoorn, op.cit., Nederlands Juristenblad (1977) p. 975 et seq.
86. Summarized in ELD (1977) p. 482.
87. Stb. 1967 No. 176.
88. 213 UNTS p. 221; Trb. 1951 No. 154. Article 10: (1) “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licencing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
89. Stb. 1947 No. H. 291.
90. 213 UNTS p. 262, Trb. 1952 No. 80. Article 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest … ”
91. Trb. 1964 No. 15. Article 2: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence … 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
92. See supra n. 62.
93. The Court mentioned on the one hand, the view adopted by the European Commission of Human Rights in the Gudmundsson Case (511/59, Yearbook of the European Convention on Human Rights, 1960, p. 394 et seq.) according to which the principles of international law should be taken to mean the principles of the law on aliens, and, on the other hand, the view – more convincing in the Court's opinion – of Vasak, K. (La Convention Européenne des Droits de I'Homme, Paris, 1954 p. 66)Google Scholar that the principles of international law also applied to relations between a state and its own nationals.
94. Institute's Collection No. 1194.
95. Noted by Alkema, E.A. in “Het Europese Verdrag voor de Rechten van de Mens, Overzicht rechtspraak 1975–1977” [The European Convention on Human Rights. Survey of judicial decisions 1975–1977] Bestuurswetenschappen (1977) pp. 479–495 at p. 485.Google Scholar
96. Article 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 within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
97. The District Court rejected not only the appellant's contention that Article 6 lacked horizontal operation, but also his contention that only natural persons and not legal persons, such as the respondent, could rely on Article 6. In this context the Court referred, by way of example to Article 25 of the Convention: “… any non-governmental organization of group of individuals”, and to Vasak, K., La Convention Européenne des Droits de l'Homme, p. 77.Google Scholar
98. See supra n. 88.
99. In previous Yearbooks translated as Supreme Military Court.
100. Note by W.H. Vermeer. Mentioned by E.A. Alkema, op.cit., Bestuurswetenschappen (1977) p. 493.
101. The VVDM is a trade union for conscripts.
102. Article 11(1): “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”
103. MRT (1976) p. 362.
104. Summarized in DD (1977) No. 38 and in ELD (1978) pp. 62, 99.
105. Trb. 1969 No. 99 p. 105. Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
106. See supra n. 88.
107. Stb. 1904 No. 7.
108. The Crown delivered a similar judgment in Vereniging van Radio-Amateurs Nederlandse Citizen Band Hobby Club v. State-Secretary for Transport and Waterways, on 14 November 1975 No. 39, Institute's Collection No. 1144.
109. Note by G.E. Mulder; summarized in DD (1977) No. 99.
110. Article 6(2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
111. The Supreme Court reversed the decision of the Court of Appeal of Den Bosch and remitted the case to the Court of Appeal of Arnhem for a final decision. This Court acquitted K. for lack of evidence (Judgment of 4 May 1977). The Supreme Court delivered a similar judgment in respect of Article 33a(3) of the Road Traffic Act in A.B. v. Public Prosecutor, 29 November 1977 (NJ (1978) No. 564, DD (1978) No. 60). At an earlier stage in this case, the Court of Appeal of The Hague had found, unlike the accused's counsel, that there were no such contradictions between the Dutch and the French and English texts of the Convention that the Dutch version would not render the purport of the original French and English texts (regardless of differences between the two latter versions) as to the applicability of Article 6 (2) of the Convention to the pre-trial stage; thus, in this respect, the municipal legislation was in accordance with Article 6(2). (Judgment of 10 May 1977).
112. Summarized in DD (1977) No. 124. Mentioned by E.A. Alkema, op.cit., Bestuurswetenschappen (1977) p. 488.
113. Article 3: “No one shall be subjected to torture or to inhuman treatment or punishment”.
114. After remittal of the case to the Hague Court of Appeal, L. was sentenced to eight months' imprisonment and suspension of his driving licence for five years (Judgment of 16 May 1977).
115. Article 1: “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.”
The Court referred to the French version (une obligation contractuelle) after mentioning that Protocol No. IV had not yet been approved by the Netherlands anyway.
116. Summarized in DD (1977) No. 219.
117. See 8 NYIL (1977) pp. 276–277. Mentioned by E.A. Alkema, op.cit., Bestuurswetenschappen (1977) p. 486.
118. The Supreme Court did not proceed to a separate discussion of each Article. The Attorney General considered them separately, and also saw no conflict with the Convention.
119. Summarized in DD (1977) No. 233.
120. In cassation, the Supreme Court is bound by what, in the contested judgment, has been established in respect of the facts. It may not make a fresh investigation into the facts (Article 441(2), Code of Criminal Procedure).
121. Summarized in DD (1977) No. 271/2.
122. Article 16 of the Hengelo General Police Regulations prohibits carrying placards, pastes and pasting equipment on the public road at night; this prohibition does not apply if the materials are neither used nor intended for the unlawful daubing of the road or another person's property, as prohibited by Article 14 of the Regulations.
123. See supra n. 88.
124. See supra n. 113.
125. Resolution adopted on 30 August 1955 by the First United Nations Congress on the prevention of crime and the treatment of offenders, Geneva, 22 August – 3 September 1955 (A/Conf/6/1, Annex I A). Also in Human Rights. A compilation of International Instruments, New York: United Nations, 1978 pp. 65–72 (ST/HR/1/Rev. 1).Google Scholar
126. For the Folkerts Case, cf., infra p. 348
127. With note by G.E. Mulder. Summarized in DD (1978) No. 15.
128. Article 6(3): “Everyone charged with a criminal offence has the following minimum rights: (a) … (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistence of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
129. See supra n. 120.
130. Note by Th.W. van Veen. Summarized in DD (1978) No. 37.
131. In 8 NYIL (1977) p. 279, this regulation was wrongly numbered as Article 49a.
132. Article 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 religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
133. Summarized in DD (1978) No. 54.
134. MRT (1978) p. 153.
135. Article 18: “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 accommunity with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”.
136. See supra n. 132.
137. Summarized in DD (1978) No. 58.
138. Article 6(1) See supra n. 96. Article 6(3)(c) See supra n. 128. Article 6(3)(d): “Everyone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;” Article 6(3)(e) See supra p. 308. Article 10(1) See supra n. 102.
139. With note by P.J.I.M. de Waart.
140. See 8 NYIL (1977) pp. 279–282.
141. 500 UNTS p. 95, Trb. 1962 No. 101. Article 32: “1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. 2. Waiver must always be express. 3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. 4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which separate waiver shall be necessary”.
142. In his comprehensive advice to the Supreme Court (reported in NJ), L. Erades, the acting Sollicitor-General, also concluded that the appeal should be dismissed. Unlike the District Court Erades held the view that the grounds of appeal ought not to be judged by the Vienna Convention, which contained a high degree of “progressive development”, that had not (yet) been accepted by the Netherlands, but on the basis of the “Draft Articles on Diplomatic Intercourse and Immunities” of the International Law Commission, where this was the case to a lesser extent (ILC Yearbook, 1958, II p. 89 et seq.). Erades recommended that Article 29(1) of the Draft, which provides that a diplomat can not invoke immunity from jurisdiction in the case of a real action relating to private immovable property situated in the territory of the receiving state (Cf., Article 31(1)(a) of the Convention), be construed in a manner to include disputes on tenancy agreements made by diplomats for private purposes and relating to immovable property situated in the receiving state.
143. Article 14: “L'étranger, même non résident en France, pourra êtie cité devant les tribunaux français, pour l'exécution des obligations par lui contractées en France avec un Français; il pourra être traduit devant les tribunaux de France, pour les obligations par lui contractées en pays étranger envers des Français;”
144. Note by W.H. Vermeer.
145. Decision of 22 June 1976, MRT (1977) p. 154.
146. Article 26(2): “The driver of a vehicle is forbidden to drive it or cause it to be driven after consuming such a quantity of alcohol that the proportion of alcohol in his blood appears, after testing, to be higher than 0,5 miligramme per millilitre of blood.”
147. The Court also found infringement of Article 26(2) of the Dutch Road Traffic Act in similar case of the Dutch service-man, G.W., where the report was made by the Dutch Military Police [Koninklijke Marechaussee] (Judgment of 30 September 1976, MRT (1977) p. 160). Cf., Courts Martial Appeals Court 11 June 1975, 7 NYIL (1976) p. 342.
148. De Martens NRG, 2nd series, Vol. XI p. 281.
149. For the text of Article 1 and 2(1), see below.
150. Summarized in DD (1978) No. 68, and 26 SEW (1978) p. 323, with note by M.R. Mok.
151. Stb. 1976 No. 63.
152. Article 4(1): “By or by virtue of a general administrative measure regulations may be made in the interests of sea fisheries, to ensure the application of international conventions or the decisions of international organizations.”
153. Trb. 1976 No. 23 pp. 6–7.
154. Convention on Fisheries in the North-East Atlantic Ocean. 486 UNTS p. 157, Trb. 1959 No. 114.
155. Stb. 1971 No. 284. The Regulations are based on Article 4 of the Fisheries Act. As appears from the Preamble, the 1976 Decree on the limitation of sole and plaice catches in the North Sea is based on Article 7 of the Regulations. Article 7 reads: “1. Fishing for species of fish designated by Our Minister, in seasons designated by him, in areas designated by him of the waters covered by this Decree, is prohibited. 2. Fish of a species covered by the prohibition in the first section of this Article and caught during a closed season within the meaning of the first section in a closed area within the meaning of that section should, immediately the nets have been drawn in, be put back into the sea. 3. Our Minister may grant exemption from the provisions in the preceedings sections. Such exemption may be subject to certain rules and restrictions”.
156. Stb. 1974 No. 709. Cf., 6 NYIL (1975) pp. 413–414.
157. Stb. 1958 No. 344. This is an Act implementing the Convention for the Prevention of Pollution of the Sea by Oil of 12 May 1954. (327 UNTS p. 3; Trb. 1954 No. 56).
158. Stb. 1958 No. 462.
159. See Rousseau, Ch., “Chronique des faits internationaux”, 81 RGDIP (1977) pp. 1186–1187Google Scholar. A detailed description of both the history of the case and the present state of proceedings is given by Lasondei, D.M.J. in “Het Rijnproces” [The Rhine Case], Tijdschrift voor Milieu en Recht (1978) pp. 9–17 and 63–67Google Scholar. See also Sauveplanne, J.G., “Rechtstiijd om rein Rijnwater” [The legal struggle for a clean Rhine] 11 Just (1978) pp. 48–50.Google Scholar
160. Trb. 1969 No. 101. Article 5: “Any defendant domiciled in a Contracting State may, in another Contracting State, be sued in … (3) the Court of the place where the tortious act occurred, in matters of tort or quasi-tort.”
161. See 7 NYIL (1976) pp. 344–345.
162. Case 21/76, ECR (1976) pp. 1735–1758, NJ (1977) No. 494, 1 CMLR (1977) pp. 284–305. Discussed by Rest, A. in “Transfrontier pollution. Plaintiff can choose his Court”, 3 Environmental Policy and Law (1977) pp. 41–46CrossRefGoogle Scholar. Cf., also Jessurun d'Oliveira, H.U., “Wie het zout deert, die het zout keert” in 52 Nederlands Juristenblad (1977) p. 137Google Scholar, and McClellan, A. in 15 CML Rev. (1978) p. 236.CrossRefGoogle Scholar
163. Note by Th.W. van Veen.
164. Note by J.R. Stellinga. Summarized in ELD (1977) pp. 457 and 494. On 6 May 1978 the European Commission on Human Rights declared the application of Kotälla against the Netherlands inadmissible.
165. See supra n. 113.
166. Institute's Collection No. 1052. See on this special court J. Remmelink: ‘Iets over de rechtspraak van de (Nederlandse) Bijzondere Raad van Cassatie [On the practice of the (Dutch) Bijzondere Raad van Cassatie], in “Liber Amicorum Herman Bekaert”, Gent, Snoeck-Ducaju, 1977 pp. 328–355.
167. See 7 NYIL (1976) pp. 345–347.
168. See 8 NYIL (1977) pp. 297–301.
169. Mentioned by Rousseau, Ch., “Chronique des faits internationaux”, 82 RGDIP (1978) p. 916Google Scholar. Noted in 8 DD (1978) p. 130; a detailed report of the investigation and prosecution policy in this case in 1976, with comments by members of Parliament may be found in Bijl. Hand. II 1976/77–14252 Nos. 1–10; critical observations on the history of and proceedings in this case were made by Prof. N.E. Algra in an interview with J. Collignon, published in the Utrechts Universiteitsblad of 21 October 1977, under the title: “De zaak Menten en de afglijdende rechtsstaat” [The Menten Case and the slipping constitutional state]; cf., also the Informatie Bulletin of the Werkgroep Recht en Openheid in de zaak-Menten. No. 1 appeared in August 1977, No. 2 on 14 November 1977, No. 3 on 20 January 1978 and No. 4 in April 1978. The purposes of the Werkgroep are mentioned in Nederlands Juristenblad (1977) p. 1130.
170. Stb. 1943 No. D 61 and Stb. 1947 No. H 233. Article 27a: “1. Any person, who during the present war, in military, state or public service of or with the enemy, commits a war crime or a crime against humanity as defined in Article 6(b) and (c) of the Charter annexed to the London Agreement of 8 August 1945, shall be liable to the penalty fixed for such crime, provided that the crime committed also contains the elements of a criminal offence under Dutch law.”
171. 82 UNTS p. 279; Stb. 1946 No. G 5. Article 6: “The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) …; (b) War crimes: namely, violations of the law or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated …”
172. See 4 NYIL (1973) pp. 433–35.
173. Cf., Rousseau, Ch., “Chronique des faits internationaux”, 81 RGDIP (1977) pp. 884–886Google Scholar. Cf., also 8 DD (1978) pp. 129–130.
174. The extension of his custody was contested by M., who has twice instituted proceedings which have gone up to the Supreme Court. These claims for termination of detention have been dismissed. (Judgments of 25 March 1977, NJ (1977) No. 186, DD (1977) No. 138, and 14 June 1977, NJ (1977) No. 509, DD (1977) No. 221) A subsequent request in summary, proceedings for an injunction ordering M.'s release and termination of the case against him was dismissed by the District Court of The Hague on 7 October 1977 and by the Hague Court of Appeal on 28 November 1977. The District Court of The Hague on 11 November 1977 also dismissed in summary proceedings a request for an injuction ordering leave to inspect documents in the Ministry of Justice from the years 1950–1952.
175. Published under the title “Werd Menten rechtmatig van Zwitseiland naar Nederland gebracht? (een geval van verkapte uitlevering)” [Was Menten's transfer from Switzerland to the Netherlands lawful? (a case of veiled extradition)], in Rechtsgeleerd Magazijn Themis (1978) pp. 138–154Google Scholar, with a post-scriptum by Orie on the views of the District Court on pp. 154–157.
176. XVI ILM (1977) p. 1391 et seq.; 70 MRT (1977) p. 524 et seq.
177. Conventions of 12 August 1949. 75 UNTS p. 31 et seq., Trb. 1951 Nos. 72–75.
178. A statement given by F. and the pleadings of his counsels are printed in 2 Informatie-Bulletin Medisch-Juridisch Comité voor Politieke Gevangenen (1977) No. 9.Google Scholar