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Published online by Cambridge University Press: 07 July 2009
1. ILM (1972) p. 470; ETS No. 74; Trb. 1973 No. 43. Art. 11 reads: ‘A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’
2. Art. 35 reads: ‘(1) The present Convention shall apply only to proceedings introduced after its entry into force. (2) When a State has become Party to this Convention after it has entered into force, the Convention shall apply only to proceedings introduced after it has entered into force with respect to that State. (3) Nothing in this Convention shall apply to proceedings arising out of, or judgments based on, acts, omissions or facts prior to the date on which the present Convention is opened for signature.’
3. See 5 NYIL (1974) pp. 290–296.
4. After K. was arrested, he tried in vain to persuade the Dutch courts to order the State of the Netherlands ‘to request the competent authorities of the Federal Republic of Germany to drop the criminal proceedings and to expel him to the Netherlands’. See 17 NYIL (1986) pp. 299–301.
5. L.F., with whom K. had maintained a permanent common household since 1976, acted as co-plaintiff.
6. According to K., it was accepted in the Netherlands, both in practice and by the courts, that infiltration could be used as a means of investigating criminal offences after the approval had been obtained of the Public Prosecutions Department, under the direction of the criminal investigation department and in close consultation with the relevant public prosecutor. He lodged copies of official reports of examinations of witnesses drawn up by the Public Prosecutors at Amsterdam and Rotterdam, showing that they were not aware of the actions of the German police officers in April or of the transport of hashish in May.
7. This assumption is incomprehensible in view of the fact that the Convention entered into force for the Netherlands on 22 May 1985, Trb. 1985 No. 38.
8. This provides as follows:
‘1. Kenntnis genommen.
2. Der Antrage des Angeklagten H.K., das Verfahren gemäss par. 153c Abs. 2 StPO einzustellen, wird abgelehnt, da es sich bei der vorliegenden Tat nicht um eine Auslandsstrqftat, sondern um eine im Inland begangene Straftat handelt. Der Angeklagte K. wurde im Hotel Sheraton in Frankfurt/Main-Flughafen festgenommen, als er 2.2 Millionen DM als Entgelt für die Lieferung von 600 kg Haschisch entgegennehmen wollte. Im übrigen ist auch aufgrund des für diese Tat geltenden Weltrechtprinzips eine Zuständigkeit des Landgerichts Würzberg gegeben.
3. Mitteilung von 2. an Rechtsanwalt Felser.
4. U.m.A. an das Landgericht Würzburg mit folgender Stellungnahme:
Soweit der Verteidiger des Angeklagten K. mit Schriftsartz vom 29.09.1983 beantragt hat, das Hauptverfahren erst nach Durchführung weiterer Ermittlungen zu eröffnen, wende ich mich gegen diesen Antrag, weil aufgrund des bisher durchgeführten Ermittlungen der Vorwurf, der dem Angeklagten K. in der Anklage vom 25.07.1983 gemacht wird, vollständig bewiesen ist.
Im vorliegenden Fall kann keine Rede davon sein, dass der Angeklagte K. von Beamten bzw. Lockspitzeln des BKA ohne Wissen der holländischen Regierung und der holländischen Polizeibehörden in die Bundesrepublik gelockt worden ist. (…)
Im vorliegenden Fall war der von der Verteidigung genannte Kriminalbeamte “Otto von Weiden” bei seinem Auftreten in Holland nicht als Kriminalbeamter tätig und hat auch nicht hoheitsrechtliche Befugnisse ausgeübt. Dieser Kriminalbeamte trat vielmehr als Privatmann auf, indem er von einer holländischen Rauschgifthändlerbande eine grössere Menge Haschisch kaufen wollte. Insoweit steht er einem Privatmann gleich, der sich seine Vertragspartner aussucht, über den Kauf von Rauschgift verhandelt und solches ankauft.
Vollkommen aus der Luft gegriffen ist der Vorwurf, die deutsche Polizei habe durch ihr Verhalten die Zuständigkeit des Landgerichts Würzburg erschlichen. Aus den Ermittlungen ergibt sich eindeutig dass beide Vertragspartner die Lagerhalle in Zellingen übereinstimmend als Übergabeort vereinbart hatten. Die Staatsanwaltschaft hat sehr wohl geprüft, ob das Verhalten der Polizei so provozierend war, dass hier die zulässigen Grenzen überschritten wurden. Es ist jedoch nicht Aufgabe der Staatsanwaltschaft, diese Prüfung in den Akten bzw. der Anklageschrift offen darzulegen. Die Behauptung der Verteidigung des Angeklagten K., durch das provozierende Verhalten von deutschen Polizeibeambten sei der Angeklagte K. in die Bundesrepublik gelockt worden, entbehrt jeder Grundlage und ist durch die Ermittlungen eindeutig widerlegt.’
9. The published text wrongly refers to Art. 25.
10. See supra n. 8.
11. In addition to the official reports lodged by the plaintiffs as referred to in n. 6 above, it is evident from consideration 3.1 of the judgment of the President that in determining the actual facts of the case he relied in part on the reasons given in the judgment of Landgericht Würzburg. His summary of this read: ‘… According to this reasoning (of the Landgericht Würzburg) several Dutch police officers have made statements in the context of the above-mentioned criminal proceedings. H. de B., the “vice-president” of the National Criminal Intelligence Service in The Hague, and his assistant H. have testified that the West German Federal Criminal Investigation Department (CID) asked on 15 April 1983 whether an undercover detective of the federal CID could be sent to the Hilton Hotel in Amsterdam on 17 April 1983 in order to have an exploratory meeting with as yet unknown Dutch drug traffickers for the purchase of around 600 kg of hashish. Permission was given for this, and it was pointed out that the German police officer should report to the division of the local police responsible for drugs in Amsterdam. Chief Superintendent B, de K., head of the Drugs Division in Amsterdam, has testified that he was informed by a German fellow police officer before 17 April 1983 about the meeting that was to take place at the Hilton Hotel in Amsterdam on 17 April 1983 between the Dutch sellers and a German police officer posing as a buyer of hashish. As there were insufficient Dutch police detectives available and since the federal CID did not consider it necessary, no observation group was sent to the Hilton Hotel. However, Chief Superintendent B. de K. was told about the meeting several days later by his West German counterpart.’
12. On appeal, the Court of Appeal of Amsterdam upheld the judgment of the District Court. According to the Court of Appeal, the President had decided on good grounds, which the Court of Appeal also used, that the FRG was entitled to immunity since it had not voluntarily submitted to Dutch jurisdiction. The submission by K., based on the EEC Enforcement Convention of 1968, was dismissed by the Court of Appeal because the present proceedings did not involve a civil or commercial matter. The FRG also did not enter an appearance on appeal (judgment of 12 February 1987, NJ (1987) No. 955, NIPR (1988) No. 176). No appeal in cassation has been lodged against the judgment.
13. Partially reproduced in NIPR (1987) No. 469.
14. 658 UNTS p. 163; Trb. 1966 No. 91. Art. 13 reads: ‘Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security. It may not refuse to comply solely on the ground that, under its internal law, it claims excessive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based. The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal.’
15. 199 UNTS p. 67; Trb. 1951 No. 144. Art. VIII(5) reads: ‘Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting parties, shall be dealt with by the receiving State in accordance with the following provisions: … ‘Art. VIII(9) reads: ‘The sending State shall not claim immunity from the jurisdiction of the courts of the receiving State for members of a force or civilian component in respect of the civil jurisdiction of the courts of the receiving State except to the extent provided in paragraph 5(g) of this Article.’
16. Judgment of the US Court of Appeals for the Second Circuit of New York of 1 May 1980.
17. Institute's Collection No. 2645.
18. Art. 14 reads: ‘Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels.’
19. Art. 13a reads: ‘The judicial jurisdiction of the courts and the execution of court decisions and of legal instruments drawn up by legally authorised officials [authentieke akte] are subject to the exceptions recognised under international law.’
20. The distance to the Dutch coastline at low water was about five miles.
21. Partially reproduced in NIPR (1988) No. 194.
22. Art. 727(1) in conjunction with Art. 721 prohibit the protective attachment of goods intended for use in the public service.
23. See supra n. 19.
24. 176 LNTS p. 200, Stb. 1936 No. 98.
25. Art. 6 reads: ‘The provisions of this Convention shall be applied in each contracting State, with the reservation that its benefits may not be extended to non-contracting States and their nationals, and that its application may be conditioned on reciprocity. On the other hand, nothing will prevent a contracting State from regulating by its own laws the rights accorded to its own nationals in its own courts.’
26. Art. 3 reads: ‘I. The provisions of the two preceding Articles shall not be applicable to ships of war, Government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships, and other craft owned or operated by a State, and used at the time a cause of action arises exclusively on governmental and non-commercial service, and such vessels shall not be subject to seizure, attachment or detention by any legal process, nor to judicial proceedings in rem. Nevertheless, claimants shall have the right of taking proceedings in the competent tribunals of the State owning or operating the vessel, without that State being permitted to avail itself of its immunity: (1) In case of actions in respect of collision or other accidents of navigation. (2) In case of actions in respect of assistance, salvage and general average. (3) In case of actions in respect of repairs, supplies, or other contracts relating to the vessel.’
27. Discussed by J.J. van Hof, B. Reinhartz and L. Veraart in NJB (1988) p. 636; discussed in AA (1988) Katern No. 27, p. 1132, partially reproduced in NIPR (1988) No. 406.
28. Institute's Collection No. 2816.
29. Partially reproduced in NIPR (1988) No. 406.
30. Under the Bankruptcy Act, the state of bankruptcy remained in force until the judgment given by the Court of Appeal became irreversible. Thus in spite of the quashing of the declaration of bankruptcy, the trustee in bankruptcy remained obliged to open mail addressed to the Republic of Zaire for at least eight days – the time limit for an appeal in cassation – and, if an appeal in cassation were made, until the Supreme Court gave judgment. As the State of the Netherlands considered that this obligation was incompatible with the immunity conferred on Zaire in accordance with rules of international law, it applied to the District Court of The Hague the next day for an interlocutory injunction against the trustee in bankruptcy and applied for the trustee in bankruptcy to be prohibited from exercising the said power. The State claimed to have an interest of its own in the injunction as a participant in diplomatic intercourse. The latter followed, inter alia, from the provisions of Art. 479a of the Code of Civil Procedure and Art. 13(4) of the Bailiffs' Regulations. The District Court agreed with the State and granted the application until 25 February 1988 at 10.00 hours (judgment of 19 February 1988, KG (1988) No. 123, NIPR (1988) No. 407). After Duclaux had subsequently received an undertaking from the counsel acting on behalf of Zaire that she would be paid, she refrained from appealing in cassation. On 3 March 1988 the objection proceedings instituted by Zaire in respect of the Sub-District Court's judgment of 4 May 1987 were terminated.
31. See supra n. 30.
32. See supra n. 19.
33. The judgment was not available to the Public International Law Department of the T.M.C. Asser Instituut until 1988.
34. See supra n. 19.
35. Exchange of letters recording an agreement relating to privileges and immunities of members of the International Court of Justice, the Registrar, officials of the Registry, assessors, the agents and counsel of the parties and of witnesses and experts, 26 June 1946, 8 UNTS p. 61; Stb. 1947 No. H 79.
36. 500 UNTS p. 95; Trb. 1962 No. 101. For the text of Art. 31(1) see under Held.
37. ILM (1969) p. 229; Trb. 1969 No. 101; Trb. 1979 No. 56 (English official text). Art. 16(1) reads: ‘The following courts shall have exclusive jurisdiction, regardless of domicile: (1) in proceedings which have as their object rights in rem in, or tenancies of, immovable property, the courts of the Contracting State in which the property is situated; …’
38. Institute's Collection No. 2832.
39. Cf., Art. 1: ‘As concerns the privileges, immunities, facilities and prerogatives, within the territory of the Netherlands, of members and staff of the International Court of Justice of other than Dutch nationality: (a) The members of the Court will, in a general way, be accorded the same treatment as heads of diplomatic missions accredited to Her Majesty the Queen of the Netherlands. As regards the privileges, immunities and facilities above-mentioned, this provision applies also to the Registrar of the Court and to the Deputy Registrar when acting for the Registrar, (b) The Deputy Registrar of the Court will, in a general way, be accorded the same treatment as counsellors attached to diplomatic missions at The Hague. The higher officials of the Court – first secretaries and secretaries – will, in a general way, be accorded the same treatment as secretaries attached to diplomatic missions at The Hague, (c) The other officials of the Court will be treated as officials of comparable rank attached to diplomatic missions at The Hague.’
40. Cf., Art. 4: ‘Privileges and immunities are granted in the interests of the administration of international justice and not in the personal interest of the beneficiary. As concerns officials of the Registry, the Registrar, with the President's approval, may withdraw their immunities, with due regard to the principle laid down in the previous paragraph. In the case of the Registrar, this duty shall rest with the Court.’
41. The Netherlands acceded to the Convention on 7 September 1984. The Convention entered into force for the Netherlands on 7 October 1984, cf., Trb. 1984 No. 108.
42. The District Court used the Dutch translation.
43. Cf., with regard to the judgment of the Supreme Court of 25 November 1977 on this case, 9 NYIL (1978) p. 317.
44. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1987–1988 which involved the admission of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1989 (Bijl. Hand. II 1988/1989 - 20800 VI No. 3 pp. 45–48).
45. Note by R. Fernhout. Summarised in NJB (1987) p. 510 (No. 5) and in WRvS (1987) No. 279. Partially reproduced in Migrantenrecht (1987) No. 34, with note by I. van Vessem, and in NIPR (1988) No. 89.
46. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. Art. 26 reads: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
47. Art. 27 reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’
48. Council of Europe, Consultative Assembly, 21st ordinary session (second part) 29 September - 3 October 1969, Text adopted by the Assembly.
49. 23 European Yearbook (1975) pp. 493–497.Google Scholar
50. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 8 reads: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) 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.’
51. Art. 6 reads: ‘(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?.’
52. On 27 November 1981 D. and H. contracted a marriage in the presence of the competent official of the Yugoslavian Embassy in The Hague. The Division was unable, however, to take account of this fact since the marriage postdated the refusal.
53. To be admitted as a partner or in the context of family reunification, a person must generally satisfy the following requirements: (1) actually belong to the family or have a real relationship (marital or otherwise); (2) have adequate means of support; the condition that the alien with whom the applicant is to be reunited as part of the family is able to support the family independently will in general be met if the income is at least equal to the net standard sum of the benefits payable to spouses under the National Assistance Act. Payments from public funds cannot be regarded as adequate means; (3) have suitable accommodation; (4) have no unacceptable political or criminal antecedents.
54. Notwithstanding the points dealt with supra in n. 53, it is the policy with regard to the admission and residence of certain categories of relatives that the lack of adequate means of support can only be used to justify a negative decision if the blame for such lack can be attributed to the person(s) concerned. This policy is pursued in relation to the spouses of persons who belong to one of the following categories: (1) Dutch nationals; (2) aliens admitted as refugees; (3) holders of a residence permit granted to them as asylees; (4) holders of a permanent residence permit.
55. Art. 9 reads: ‘An alien holding a residence permit will be allowed to reside in the Netherlands until such time as the permit expires.’
56. In the case of G.K. v. the State Secretary for Justice, the Judicial Division held that even for the purposes of the Netherlands Nationality Act of 1984 and the naturalisation policy based on it the standards applied in relation to gypsies need not differ from those applied to other aliens (or categories of aliens) (judgment of 30 June 1987, WRvS (1987) No. 2.194. Discussed in note to Rechtspraak Vreemdelingenrecht (1987) No. 37. Idem on the same day in the case of P.P. v. State Secretary for Justice, Migrantenrecht (1988) No. 10).
57. Art. 13 reads: ‘(1) Our Minister shall be authorised to issue or cancel permanent residence permits. (2) Permanent residence permits shall not be issued subject to restrictions. No conditions shall be attached to such permits. (3) An alien who has had his principal place of residence in the Netherlands for a period of five years may only be refused such a permit: (a) if there is no reasonable guarantee that he will be able to support himself on a permanent basis; (b) if he has committed a serious breach of the peace, a serious offence against public order or constitutes a serious threat to national security. (4) An alien who has had his principal place of residence in the Netherlands for a period of ten years can no longer be refused such a permit for the reason stated in the preceding subsection under (a).’
58. Art. 14 reads: ‘(1) An alien's permanent residence permit may be cancelled: (a) if the permit was issued on the strength of false information; (b) if he has repeatedly committed an offence punishable under this Act; (c) if he has been sentenced under a final judgment for an offence deliberately committed which is punishable by a term of imprisonment of three years or more; (d) if he constitutes a serious threat to national security. (2) A permanent residence permit shall cease to be valid by law as soon as the holder establishes his principal place of residence outside the Netherlands.’
59. For the text of Art. 15(3) see infra n. 121.
60. Art. 65 reads: ‘The provisions of agreements, which by virtue of their terms may be binding on everyone, shall have this binding effect as from the time of publication. Rules with regard to the publication of agreements shall be laid down by law.’ Art. 66 reads: ‘Legal regulations in force within the Kingdom shall not apply if this application would be incompatible with provisions, binding on anyone, of agreements entered into either before or after the enactment of the regulation.’
61. Art. 11(5) reads: ‘The issue of a residence permit or its renewal may be refused on grounds derived from the public interest.’
62. Art. 40(1) reads: ‘The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights: (a) within one year of the entry into force of the present Covenant for the States Parties concerned; (b) thereafter whenever the Committee so requests.’
63. Art. 12(1) reads: ‘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.’
64. Council of Europe, Committee of Ministers, Recommendations to the Member States (1983), 31 European Yearbook (1983) p. C of E 21.
65. Cf., 16 NYIL (1985) pp. 492–496.
66. Dated 5 May 1949, Stb. 1949 No. J 341; 87 UNTS p. 103. Art. 23(a) reads: ‘The Consultative Assembly shall discuss, and may make recommendations upon, any matter within the aim and scope of the Council of Europe as defined in Chapter 1, which (i) is referred to it by the Committee of Ministers with a request for its opinion, or (ii) has been approved by the Committee for inclusion in the Agenda of the Assembly on the proposal of the latter.’
67. Art. 15(b) reads: ‘In appropriate cases, the conclusion of the Committee may take the form of recommendations to the Governments of Members, and the Committee may request the Governments of Members to inform it of the action taken by them with regard to such recommendations.’
68. Art. 67 reads: ‘Subject, where necessary, to the provisions of Article 63, legislative, executive and judicial powers may be conferred on international organisations by or pursuant to an agreement. Articles 65 and 66 shall apply by analogy to the decisions of international organisations.’
69. Dated 16 September 1963; ILM (1968) p. 978; ETS No. 46; Trb. 1964 No. 15. Art. 2 reads: ‘(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. (2) Everyone shall be free to leave any country, including his own. (3) No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (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.’
70. Art. 14 reads: ‘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.’
In the comparable case of D.R. v. State Secretary for Justice, the Judicial Division dismissed not only an argument based on Art. 8 of the European Convention but also one based on Art. 17(1) of the International Covenant (judgment of 13 February 1987, Institute's Collection No. 2827).
71. Art. 12 reads: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’
72. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
73. Summarised in WRvS (1986) No. 2.187, Institute's Collection No. 2747.
74. On the same day the Judicial Division gave a similar judgment in the case of N. v. State Secretary for Justice, AB (1988) No. 24, with note by R. Fernhout. For previous judgments regarding the position of gypsies, cf., 13 NYIL (1982) pp. 354–359 and 16 NYIL (1985) pp. 476–478.
75. Note by J.J. Bolten; summarised in WRvS (1987) No. 2.193.
76. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967; 606 UNTS p. 267; Trb. 1967 No. 76. Art. 1 (D) reads: ‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.’
77. Para. 143 reads: ‘With regard to refugees from Palestine, it will be noted that UNRWA operates only in certain areas of the Middle East, and it is only there that its protection or assistance are given. Thus, a refugee from Palestine who finds himself outside that area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention. It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNRWA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses.’
78. Bolten (op. cit. n. 75) concludes from the judgment of the Council of State, Judicial Division, of 22 December 1987 in the case of B.M. v. State Secretary for Justice, that even if the Refugee Convention were applicable to Palestinians who have moved outside the UNRWA area, this would not in the view of the Division automatically entail their recognition as refugees under the Convention.
79. For the text of Art. 15(1) see infra n. 121.
80. For the text of Art.11(5) see supra n. 61.
81. Note by R. Fernhout on p. 159, discussed by P. Boeles in AA (1988) Katern pp. 1218–1219. Cf., also Gids Vreemdelingenrecht No. D 12–143 in the very similar case of C.M. v. State Secretary for Justice. Summarised in WRvS (1988) No. 299.
82. Note by R. Fernhout.
83. Note by J.J. Bolten.
84. In the judgment dated 28 July 1988 in the case of B.S. v. State Secretary for Justice, the Judicial Division of the Council of State qualified this judgment as follows: ‘In this connection the premise has been that the fact that measures have been taken by the authorities against those persons who have been shown to wish, or are seriously suspected of wishing, to break the unity of the State by violent means, in particular by conducting armed resistance, does not in itself characterise such measures as acts of persecution. The possibility cannot be excluded, however, that such measures which are taken by or on the responsibility of the authorities, although not intended to affect certain persons or groups of persons simply on account of their political belief on other grounds referred to in Art. 1(A), at 2, of the Convention and Art. 15 of the Aliens Act, may in practice have such an effect that they must be regarded as amounting to discriminatory treatment.’ (Nieuwsbrief Asiel-en Vluchtelingenrecht (1988) p. 441, discussed on p. 415. Discussed by J.J. Bolten in note in Rechtspraak Vreemdelingenrecht (1988) No. 5).
85. The Council of State added the following in the case referred above in n. 84: ‘Since this legislation was intended to curb a movement for secession of part of the territory of Sri Lanka on the basis of the ethnic characteristics of the majority of the inhabitants of that part, it entailed the danger that repression would in fact be exercised against people exclusively on the grounds that they belonged to that ethnic group.’
86. The view of the UNHCR Representative in the Netherlands is published in Nieuwsbrief Asiel- en Vluchtelingenrecht (1987) p. 668.Google Scholar
87. This paragraph is clarified as follows in the judgment referred to above in n. 84: ‘The attitude of the Sri Lankan authorities to what for it were the unexpected disturbances between the various population groups, in particular in July 1983, does not detract from the above. The Sri Lankan authorities found themselves suddenly confronted by an insurrection which they had not desired or encouraged. They did not succeed in quelling it immediately. Although they were prepared, they were not immediately able to protect population groups or parts thereof from violence by other population groups or even by sections of their own population group. The Division therefore considers that it would not be correct to take as a premise that under such circumstances the lack of adequate protection during a short period should definitely be construed as persecution.’
88. The UNHCR Representative in the Netherlands of the UNHCR took a different view.
89. In the case of A.M. v. State Secretary for Justice, however, the Judicial Division of the Council of State did consider that persecution by the Sri Lankan authorities was likely. This was therefore the first time on which the Judicial Division was required to consider the question of the alternative of domestic flight. It held as follows: ‘Since there is a well-founded fear of persecution by the authorities themselves, the appellant cannot escape persecution by settling elsewhere in Sri Lanka. Sri Lanka is after all of limited geographical size and – as the Representative in the Netherlands of the United Nations High Commissioner for Refugees in connection with the case to which the above-mentioned judgment of 24 February 1988 related has pointed out – it is necessary to avoid underestimating the effect of the application of the emergency legislation, including the Prevention of Terrorism Act (PTA).’ (Judgment of 14 September 1988, Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 448Google Scholar, discussed on p. 416, Rechtspraak Vreemdelingenrecht (1988) No. 6 with note by J.J. Bolten, Gids Vreemdelingenrecht No. D 12–151. As regards the State's view of the alternative of domestic flight, see 17 NYIL (1986) pp. 164–165). The State based its views on the subject on the findings of a Dutch delegation of civil servants led by H. Wijnaendts, which visited Sri Lanka in April 1985. In the case of F.V. v. the State of the Netherlands (see infra p. 330) the District Court of Maastricht held that the conclusion of the Wijnaendts report, namely that Tamils in the south of Sri Lanka were not exposed to persecution, did not hold true for young, male Tamils such as V., who sympathised with the Tamil Tiger Movement. On appeal, the Court of Appeal of ‘s-Hertogenbosch shared this view. In its judgment in the case of K.N. v. State Secretary for Justice, the District Court of Haarlem held that there was an alternative of domestic flight. The District Court also shared the views of the Judicial Division of the Council of State of February 1988 regarding the persecution of young, male Tamils (Judgment of 10 June 1988, Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. ‘266Google Scholar, discussed on p. 225; NCJM-Bulletin (1988) pp. 539 and 610).Google Scholar
90. Summarised in DD (1986) No. 292 II.
91. 616 UNTS p. 79; BT IV-I; Trb. 1962 No. 97. Art. 8 reads: ‘Extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offences.’
92. 359 UNTS p. 273; ETS No. 24; Trb. 1965 No. 9. Art. 9 reads: ‘Extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences.’
93. Under Art. 68, no one may be prosecuted again for an offence for which final judgment has already been passed by the Dutch courts.
94. In the case of R.A.P.M. v. Public Prosecutor, the Supreme Court held that the declaration made by the Dutch Government when it ratified the European Convention on Extradition, as referred to in Art. 6(1) of the Convention (see infra n. 106 cannot be applied analogously to the Benelux Extradition Treaty (judgment of 10 June 1986, NJ (1987) No. 106), DD (1986) No. 498, cf., also HR 15 April 1980, 13 NYIL (1982) pp. 345–346).
95. Note by A.H.J. Swart. Summarised in DD (1987) No. 268.
96. 182 Parry CTS p. 346; Stb. 1987 No. 42.
97. Art. 33(1) reads: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
98. Art. 14(7) reads: ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and procedure of each country.’
99. At the time of the appeal in cassation, the application lodged on 8 July 1986 for review of the State Secretary's decision to refuse T. 's request for asylum was still pending.
100. The same argument had been used by the District Court to reject T.'s defence that the extradition would be in breach of the principle of non-discrimination under international law as contained in Art.3(2) of the European Convention on Extradition and Art.10(1) of the Extradition Act. This argument was not repeated by T. in cassation.
101. As regards the validity of this Treaty, see Supreme Court 31 August 1972, 4 NYIL (1973) pp. 391–396.
102. For other cases dealing with the relationship between extradition treaties and conventions on human rights, see Supreme Court 27 March 1984, 16 NYIL (1985) pp. 488–489 and Supreme Court 1 July 1985, 17 NYIL (1986) pp. 280–284.
103. Note by TW. van Veen.
104. Note by A.H.J. Swart. Summarised in NJB (1987) p. 860 (No. 152).
105. Art. 1 reads: ‘The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.’ The reservation reads: ‘The Netherlands Government reserves the right to refuse extradition on humanitarian grounds if it would cause particular hardship to the person claimed, for example, because of his youth, advanced age or state of health.’
106. Art. 6 reads: ‘(1)(a) A Contracting Party shall have the right to refuse extradition of its nationals, (b) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instrument of ratification or accession, define as far as it is concerned the term “nationals” within the meaning of this Convention … (2) If the requested Party does not extradite its national, it shall at the request of the requesting Party submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge by the means provided for in Article 12, paragraph 1. The requesting Party shall be informed of the result of its request.’
The declaration reads: ‘The Netherlands Government will not grant extradition or transit of its own nationals. As regards the Netherlands, “nationals” for the purposes of this Convention are to be understood as meaning persons of Dutch nationality as well as foreigners integrated into the Netherlands community in so far as they can be prosecuted within the Netherlands for the act in respect of which extradition is requested.’
107. Rechtspraak Vreemdelingenrecht (1984) No. 21 with note by D.J.M.W. Paridaens.
108. Rechtspraak Vreemdelingenrecht (1985) No. 116 with note by D.J.M.W. Paridaens.
109. It should be noted in passing that M. had committed an offence in Germany for which he could not have been prosecuted in the Netherlands.
110. For the application by the Supreme Court of the declaration to Art. 6(1), cf., Supreme Court 10 January 1978, 10 NYIL (1979) pp. 464–465 and Supreme Court 28 June 1983, 16 NYIL (1985) pp. 484–486.
111. Discussed in Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p.326, summarised in NJB (1988) p.573.
112. Note by A.H.J. Swart.
113. Note by J.J. Bolten.
114. Trb. 1966 No. 166. Art. 5 reads: ‘Persons who have entered the Benelux area illegally from the territory of the Federal Republic of Germany across the common border may be handed over to the border authorities of the Federal Republic of Germany within a month of crossing the border and must be taken back by them without formalities if the border authorities of one of the Benelux countries supply information enabling the border authorities of the Federal Republic of Germany to establish that the formalities have been complied with. The handing over may also take place after the expiry of a month if the authorities of one of the Benelux countries have notified the authorities of the Federal Republic of Germany within such period of their intention to make a hand over.’
115. KG (1985) No. 72; Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) p. 149Google Scholar, with note by Kruyt, A., Rechtspraak Vreemdelingenrecht (1985)Google Scholar No. 9, discussed in AA (1985) Katern No. 35, p. 583.
116. RvdW (1985) No. 77.
117. For the text of Art. 6(1) see supra n. 51.
118. Discussed on p. 327.
119. Note by A.H.J. Swart.
120. Art. 33 reads: ‘(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.’
121. Art. 15 reads: ‘Aliens coming from a country where they have a well-founded fear of persecution because of their religious or political opinion or their nationality, or because they belong to a certain race or a particular social group, may be admitted as refugees by Our Minister. (2) Admission may only be refused for important reasons in the public interest if such refusal would force the alien to proceed forthwith to a country as defined in paragraph 1. (3) Our Minister may withdraw permission in accordance with the provisions of para. 1 of Art. 14 and also in cases where as a result of changed circumstances the alien is afforded the opportunity of taking up residence outside the Netherlands without risk of persecution, unless he has pressing reasons deriving from earlier persecution not to take that opportunity.’
For the text of Art. 14(1)(c) see supra n. 58.
122. Art. 94 reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.’
123. Migrantenrecht (1986) No. 32, KG (1986) No. 158, Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 179Google Scholar. For other aspects of refugee law in this case, cf., supra n. 89.
124. Legal consideration 4.7.
125. Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 344Google Scholar, Rechtspraak Vreemdelingenrecht (1986) No. 12, with note by A.H.J. Swart.
126. Part 3 of the ground of appeal reads as follows: ‘What the Court of Appeal has stated in legal consideration 4.7 is incomprehensible. The notion that a permit for admission as a refugee may be refused or cancelled on the grounds of public order while expulsion is ruled out because of Art. 33 of the Refugee Convention cannot be reconciled with the system embodied in the Aliens Act, in any event not without further arguments. In addition, the Court of Appeal's reasoning in legal consideration 4.7 does not rebut the submission by the State that the Contracting Parties intended in the implementation or interpretation of Art. 33(2) of the Refugee Convention, to create a “margin of discretion” for the individual States and that in this respect Arts. 14 and 15 of the Aliens Act provide an indication of how Art. 33(2) should be interpreted.’
127. Discussed in Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) pp. 203 and 219Google Scholar, in NJB (1988) p. 843 (No. 9) and in AA (1988) Katern No. 28, p. 1168; summarised in WRvS (1988) No. 2.152.
128. Note by R. Fernhout. The note is also printed in Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 336.Google Scholar
129. Note by J.J. Bolten.
130. For the text of Art. 15 see supra n. 121.
131. Art. 1A reads: ‘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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it …’
132. 606 UNTS p. 267; Trb. 1967 No. 76.
133. As a consequence of its finding that B status coincides with A status, the Division needed to review its opinion first expressed in the case of X. v. State Secretary for Justice that if C status is granted the relevant alien no longer has any interest in obtaining B status (since C status is not subject to any restriction) (judgment of 17 August 1987, Nieuwsbrief Asiel- en Vluchtelingenrecht (1987) p. 583Google Scholar, discussed on p. 526 and (1988) p. 221, Rechtspraak Vreemdelingenrecht (1987) No. 6, with note by J.J. Bolten) p. 152. It is evident from a judgment of 29 February 1988 in the case of N.M. v. State Secretary for Justice that even though C status had been granted the Division still examined whether the political situation in Ethiopia was such that there were grounds for holding that M. could not reasonably be required to return to that country (former B status criterion), and whether M. had succeeded in proving that he had a well-founded fear of persecution (A status). (Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 248Google Scholar, discussed on p. 221; AB (1988) No. 356, discussed by J.J. Bolten in note to Rechtspraak Vreemdelingenrecht (1988) No. 3).
134. With note by A.H.J. Swart.
135. With note by E.A. Alkema, idem in Bestuurswetenschappen (1987) p. 248, discussed by P. Boeles in AA (1987) Katern No. 23 p. 927, partially reproduced in NJCM (1987) p. 458, with note by J.D.M. Steenbergen, summarised in NJB (1987) p. 60 (No. 4) and NIPR (1987) No. 220.
136. NJ (1988) No. 187.
137. For the text of Art. 8 see supra n. 50.
138. Ha. was notified that he was required to leave the Netherlands on 7 December 1983.
139. After the judgment of the Court of Appeal, the State Secretary decided not to enforce the expulsion order for the time being.
140. Consideration 3.1 refers to the following facts and circumstances: ‘(i) Ö. was born on 2 January 1941 and married in 1968. No children have been born to the parties to this marriage. Both spouses have Turkish nationality. Ö. has resided legally in the Netherlands since July 1971 and his wife since April 1975. Ö. has a permanent residence permit and both spouses are in paid employment in the Netherlands, (ii) Ha. Ö. was born at Alaca (the village of Merkez Karkin) in Turkey on IS April 1968 as the legitimate son of 1.6. (a brother of tts wife) and his wife Z.Ö. (a sister of Ö). Like both his natural parents, Ha. has Turkish nationality, (iii) At the time of Ha.'s birth, it was agreed between his natural parents and Ö. and his wife that Ha. would be adopted by the latter couple, who had no children and were unable to have them, (iv) For the first three years of his life Ha. was looked after by his natural mother; during this period he lived with his natural parents in their home, which was part of the same house at Merkez Karkin in which Ö. and his wife and the parents of Ö.'s wife each had a home, (v) From the time he was three onwards, Ha. was cared for and raised by Ö.'s wife in her home. In July 1971 Ö. left to come to the Netherlands, (vi) The situation referred to at (v) came to an end in April 197S when tts wife left Turkey to join her husband in the Netherlands. From 1975 to 1980 Ha. was looked after and raised by his lawful mother (in Ö.'s aforementioned home). During this period Ö. and his wife visited Ha. annually for fairly long periods during their annual holidays and provided for his maintenance. From 1980 onwards, when Ö.'s natural mother in her turn left Turkey with her four other children to join her husband, who had lived and worked in Germany since 1972, Ha. was looked after and raised by his maternal grandmother, until he left for the Netherlands at the end of August 1981. (vii) Hals grandmother died in 1981. Ha. has no relatives left in Turkey other than his very aged maternal grandfather in Merkez Karkin and two uncles, both of whom have large families and live in Ankara in impoverished circumstances, (viii) Ö. adopted Ha. under Turkish law as soon as he met the requirement set by that law that in order to gain permission for adoption one must be at least 40 years of age. On 7 August 1981 the court at Alaca approved the notarial instrument executed at Alaca on the same date in which Ö. adopted Ha. with the consent of his natural parents and his wife, the court having first established that the adoption was also approved by Ha. himself. This adoption under Turkish law, which has the consequence under that law that the rights and duties of Hals natural parents have passed to Ö., must be recognised in the Netherlands.’
141. This view has been confirmed by the European Court of Human Rights in its judgment in the Berrehab case. In this judgment, the European Court quoted with approval the views of the Supreme Court as set out in the present case and in the judgment referred to infra in n. 142 (judgment of 21 June 1988, NJ (1988) No. 746 with note by Alkema, E.A., Tijdschrift voor familie en jeugdrecht (1988) p. 193Google Scholar, with note by Doek, J.E., NCJM-Bulletin (1988) p. 579Google Scholar, with note by Steenbergen, J.D.M., Nemesis (1988)Google Scholar No. 26, discussed by Bolten, J.J. in Nemesis (1989) pp. 209–212Google Scholar, Rechtspmak Vreemdelingenrecht (1988) No. 17 with note by P. Boeles, summarised in NJB (1988) p. 1088 (No. 10). For the history of the Berrehab case, see also 18 NYIL (1987) pp. 365–367).
142. The Supreme Court repeated the need to weigh the different interests in its judgment of 18 December 1987 in the case of R.G. v. the State of the Netherlands. This related to the imminent expulsion of a Moroccan national G., who was separated from his Dutch wife and who had, so the Supreme Court held, a relationship with his son which qualified as family life within the meaning of Art. 8 of the Convention. The Supreme Court held, inter alia, that in assessing the seriousness of the violation, relevant factors could include how long the persons concerned had lived together, the nature and intensity of the contacts maintained after they ceased to live together and whether the expulsion threatened the parent or the child (RvdW (1988) No. 9, Rechtspraak Vreemdelingenrecht (1987) No. 19 with note by Boeles, P., NJCM-Bulletin (1988) p. 451Google Scholar with note by P. Boeles, NJ (1988) No. 844 with note by A.H.J. Swart, summarised in NJB (1988) p. 97 (No. 9) and in ELD (1989) pp. 12 and 39). The failure of the State Secretary for Justice to weigh up these different interests in the case of P.W.A. v. State Secretary for Justice was held by the Judicial Division of the Council of State to be a sufficient ground for quashing the decision to refuse to issue A. with a residence permit (judgment of 14 September 1987, Rechtspraak Vreemdelingenrecht (1987) No. 95, with note by Swart, A.H.J., Migrantenrecht (1987) p. 268Google Scholar, AROB tB/S (1987) No. 147 with note by W.L.J. Voogt, summarised in WRvS (1987) No. 2.215, discussed by Steenbergen, J.D.M. in NJCM-Bulletin (1988) p. 839).Google Scholar
The Council of State was not actually called upon to weigh up interests in this way until the case of M.E.K.B. v. State Secretary for Justice. As in the Berrehab case, the violation of the right contained in Art. 8 was assessed in this case by reference to the interest of the economic well-being of the Netherlands. The decision went against B. and his son. It was held that there had been no violation of Art. 8, or for that matter of Art. 12 of the Universal Declaration of Human Rights, Art. 10(1) of the International Covenant on Economic Social and Cultural Rights or Art. 17(1) of the International Covenant on Civil and Political Rights (judgment of 24 October 1988, WRvS (1988) No. 2.220, discussed by Steenbergen, J.D.M. in Migrantenrecht (1989) pp. 35–39).Google Scholar
143. Art. 38 reads: ‘(1) Pending the decision of the Judicial Division on the appeal, the alien against whom the contested decision has been made shall not be expelled. (2) The provision in the first paragraph may be departed from: (a) in cases where the request for review has been decided in accordance with the opinion made by the Committee; …’
144. This is a reference to the refusal to stay the expulsion and the notice to leave the Netherlands, cf., under The Facts.
145. The Supreme Court also emphasised in the case referred to above in n. 142 that it was in principle up to the State to adduce evidence to prove this.
146. The Judicial Division of the Council of State ultimately quashed the decision of the State Secretary to refuse to issue a residence permit for Ha. In doing so, the Division held that the State Secretary had wrongly failed to explain why, despite the Turkish adoption judgment, Ha. could not be regarded as belonging to the category of persons referred to in the Aliens Circular, Chapter B.19.2.1.1. In this connection the Division considered it important that the Supreme Court had assumed that the Turkish adoption should be recognised in the Netherlands. The Division also dealt with the fact that the decision of the State Secretary failed to consider the question whether there was family life as referred to in Art. 8. The State Secretary did not, strictly speaking, need to answer this question since Art. 8 was not invoked in the request for review. However, since O had invoked Art. 8 at the hearing (following, among other things, what the Supreme Court held in its judgment regarding the applicability of Art. 8), the Division considered it right that the State Secretary should deal with this point in his final decision (judgment of 29 June 1987, AROB tB/S (1987) No. 102 with note by Voogt, W.L.J., Rechtspraak Vreemdelingenrecht (1987) No. 16 with note by P. Boeles.Google Scholar
147. Note by J.C. Schultsz, partially reproduced in NIPR (1988) No. 315.
148. 539 UNTS p. 27; Trb. 1959 No. 187. Art. 18 reads: ‘Any Contracting State may, on signing or ratifying this Convention or on acceding thereto, make a reservation concerning the recognition and enforcement of decisions rendered by an authority of another Contracting State which had jurisdiction by virtue of the residence of the party entitled to maintenance. A State which makes such a reservation shall have no claim to application of the Convention to decisions rendered by its authorities where the said authorities had jurisdiction by virtue of the residence of the party entitled to maintenance.’ For the text of the reservation see under Held.
149. Trb. 1981 No. 19.
150. 1021 UNTS p. 209; Trb. 1974 No. 85.
151. Earlier attempts by the mother and the Jugendamt to obtain a maintenance contribution from X. for the child before the Dutch courts had proved unsuccessful.
152. NIPR (1988) No. 95, also published in NJ (1988) No. 831.
153. Trb. 1964 No. 59. The English translation of the reservation as reproduced here is given in 539 UNTS p. 29.
154. Art. 7(1) reads: ‘An authority in the State of origin shall be considered to have jurisdiction for the purposes of this Convention – (1) if either the maintenance debtor or the maintenance creditor had his habitual residence in the State of origin at the time when the proceedings were instituted; …’
155. Art. 5(2) reads: ‘A person domiciled in a Contracting State may, in another Contracting State, be sued (1) … (2) in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident.’
156. Note by T.W. van Veen, discussed by R. Haenen in DD (1986) p. 1082, summarised in DD (1986) No. 278.
157. 472 UNTS p. 185; ETS No. 30; Trb. 1965 No. 10.
158. Trb. 1979 No. 143.
159. For the text of Art. 6(1) see supra n. 51.
160. Art. 5 reads: ‘(1) Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions: (a) that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party; (b) that the offence motivating the letters rogatory is an extraditable offence in the requested country; (c) that execution of the letters rogatory is consistent with the law of the requested Party. (2) Where a Contracting Party makes a declaration in accordance with paragraph 1 of this Article, any other Party may apply reciprocity.’
161. The English translation reads: ‘The Netherlands Government declares that letters rogatory for search or seizure within the Netherlands will not be executed save for extraditable offences within the meaning of the European Convention on Extradition, and provided that the Dutch court has authorised execution in accordance with its municipal law.’ ETS No. 30 p. 301.
162. Cf., with regard to the retroactive effect of extradition treaties in respect of extradition requests, Supreme Court 2 April 1985, 17 NYIL (1986) pp. 278–280.
163. Art. III reads: ‘If the request relates to a criminal offence which is regarded by the requested State as a violation of statutory regulations concerning charges, taxes, customs duties and exchange, the assistance may be refused only if the requested State considers that the grant of the request might be contrary to the public policy or other essential interests of its country.’
164. Art. 5 reads: ‘Extradition shall be granted, in accordance with the provisions of this Convention, for offences in connection with taxes, duties, customs and exchange only if the Contracting Parties have so decided in respect of any such offence or category of offences.’ The court used the Dutch translation.
165. Trb. 1979 No. 142. Art. III reads: ‘Extradition on account of an infringement of the regulations regarding taxes, duties, customs and exchange control is permissible in individual cases and without further consequences subject to the conditions of the Convention and of this Agreement.’
166. The Court of Appeal at Amsterdam dismissed the complaint. The submission by X. that the request for assistance by the Leitende Oberstaatsanwalt at Saarbrucken was not in accordance with Art. IX(2) of the Wittem Agreement since it did not emanate from the competent authority, namely the Minister of Justice of Saarland, was rejected by the Court of Appeal by reference to the urgent nature of the case, which had been emphasised by the German authorities. This was not altered by the fact that there had later been a long delay in dealing with the case in the Netherlands, as a result of which it transpired that the case was not urgent. The following submission by X. that the Netherlands had deferred a decision on the request until after the entry into force of the Wittem Agreement could be disregarded by the Court of Appeal, in view of the finding of the Supreme Court on this point. On the same day, the Court of Appeal granted the request for assistance on condition that the papers to be supplied should be used for an investigation of the facts which did not constitute fiscal offences (judgment of 11 July 1986, Institute's Collection No. 2839).
167. 499 UNTS p. 311; Trb. 1959 No. 124. Art. 5 reads: ‘(1) Each State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. (2) Each State shall issue to ships to which it has granted the right to fly its flag documents to that effect.’
168. 13 NYIL (1982) pp. 381–391.
169. 16 NYIL (1985) pp. 514–518.
170. Art. 539a reads: ‘(1) The powers conferred under any statutory provision in respect of the investigation of criminal offences outside a Court of law may, unless otherwise provided for in this Title, be exercised outside the Court's jurisdiction. (2) The provisions of the first and second sections of this Title are applicable only in respect of investigation outside the Court's jurisdiction. Where they concern arrested persons or seized property they remain applicable within the Court's jurisdiction until such arrested persons or seized property have been handed over to the Public Prosecutor or one of his deputies. (3) The powers conferred under the provisions of this Title can be exercised only subject to international law and inter-regional law.’
171. Partially reproduced in NJB (1988) p. 574 (No. 176) and NIPR (1988) No. 364.
171a. Note by J.C. Schultsz.
172. ILM (1970) p. 45; Trb. 1970 No. 196. Art. V reads: ‘(1) The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount of 2,000 francs for each ton of the ship's tonnage. However, this aggregate amount shall not in any event exceed 210 million francs. (2) If the incident occurred as a result of the actual fault or privity of the owner, he shall not be entitled to avail himself of the limitation provided in paragraph 1 of this Article. (3) For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under Article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee acceptable under the legislation of the Contracting State where the fund is constituted and considered to be adequate by the Court or another competent authority. (4) The fund shall be distributed among the claimants in proportion to the amounts of their established claims. (5) If before the fund is distributed the owner or any of his servants or agents or any persons providing him insurance or other financial security has as a result of the incident in question paid compensation for pollution damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. (6) The right of subrogation provided for in paragraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid, but only to the extent that such subrogation is permitted under the applicable national law. (7) Where the owner or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which such person would have enjoyed a right of subrogation under paragraphs 5 or 6 of this Article, had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund … (11) The insurer or other person providing financial security shall be entitled to constitute a fund in accordance with this Article on the same conditions and having the same effect as if it were constituted by the owner. Such a fund may be constituted even in the event of the actual fault or privity of the owner, but its constitution shall in that case not prejudice the rights of any claimant against the owner.’
173. Art. VI reads: ‘(1) Where the owner, after an incident, has constituted a fund in accordance with Article V, and is entitled to limit his liability, (a) no person having a claim for pollution damage arising out of that incident shall be entitled to exercise any right against any other assets of the owner in respect of such claim; (b) the Court or other competent authority of any Contracting State shall order the release of any ship or other property belonging to the owner which has been arrested in respect of a claim for pollution damage arising out of that incident, and shall similarly release any bail or other security furnished to avoid such arrest. (2) The foregoing shall, however, only apply if the claimant has access to the Court administering the fund and the fund is actually available in respect of his claim.’
174. 15 NYIL (1984) pp. 467–468.
175. 17 NYIL (1986) pp. 293–296.
176. S&S (1986) No. 109, partially reproduced in NIPR (1987) No. 134.
177. With note by W. Riphagen. Summarised in DD (1987) No. 282 and NJB (1987) p. 575 (No. 128).
178. Act of 1 November 1951, Stb. 1951 No. 572.
179. 138 Parry CTS p. 167; Stb. 1869 No. 37.
180. See the map on p. 356.
181. This regulation is part of the system of market regulation for unscheduled transport through a system of proportional apportionment of cargo: inland waterways vessels are chartered on a rota basis at fifteen regional exchanges. The rates for this transport are governed by the Unscheduled Inland Waterways Goods Transport Rates Decision of 1954. Under this Decision, the cargo price for the present transport should have been Dfl. 13.02 per tonne instead of the Dfl. 5.00 actually agreed (taken from the opinion given by Advocate-General Meijers).
182. Art. 1 reads: ‘The navigation of the Rhine and its estuaries from Basle to the open sea either down or up stream shall be free to the vessels of all nations for the transport of merchandise and persons on the condition of conforming to the provisions contained in this convention and to the measures prescribed for the maintenance of general safety. Apart from these regulations no obstacle of any kind shall be offered to free navigation. The Lek and the Waal are considered as being part of the Rhine’. This translation is taken from an unofficial English translation published in Cmnd. 2421.
183. 31 Parry CVS p. 307; Stb. 1831 No. 19.
184. Art. 24 reads: ‘The provisions of this Convention are not applicable to transportation from one bank to the other with the exception of the clause mentioned in Article 32’. Also taken from the unofficial English translation, see supra n. 182.
185. According to Advocate-General Meijers, the Act did apply to the present transportation. His opinion is printed in NJ (1987) No. 813.
186. Note by A.C. ‘t Hart.
187. Summarized in NJB (1987) p. 545 (No. Ill) and DD (1987) No. 245.
188. See infra under Held.
189. Act of 2 July 1964, Stb. 1964 No. 245. Art. 1 reads: ‘Any person who, with the intention of wholly or partially destroying a national, ethnic or religious group, or a group belonging to a particular race, as such, intentionally: (1) kills members of the group; (2) causes serious bodily or mental harm to members of the group; (3) inflicts on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposes measures intended to prevent births within the group; (5) forcibly transfers children of the group to another group shall be guilty of genocide and shall be liable to life imprisonment or to a determinate prison sentence not exceeding twenty years. (2) Conspiracy to commit the said offence shall incur the same penalty as an attempt to commit it. (3) The terms conspiracy and serious bodily harm as used in this article shall have the same meaning as in the Criminal Code’.
190. For the text of Art. 6 see supra n. 51.
191. The duties of the SITE watch include the surveillance of locations where nuclear weapons may be stationed. Cf., for previous similar cases, Supreme Court, 4 May 1981, 13 NYIL (1982) pp. 408–410 and Supreme Court, 29 November 1983, 16 NYIL (1985) pp. 525–526.
192. The Supreme Court gave a similar judgment in the previous case of P.J.S. v. Public Prosecutor (judgment of 18 June 1985, NJ (1986) No. 58 with a note by A.C. 't Hart, and MRT (1985) p. 331 with a note by W.H. Vermeer). This case was discussed by M.J.F. Stelling in ‘De Hoge Raad en het probleem van de kernbewapening’ (The Supreme Court and the problem of nuclear armament), NJB (1986) pp. 209–213 with comments by G.E. Langemeyer on pp. 214–215. A number of the theses and ideas propounded in the cassation pleadings in the present case are previously mentioned in Stelling's article.
193. Art. 80 reads: ‘Conspiracy exists as soon as two or more people agree to commit a crime’.
194. Of 8 August 1945, 82 UNTS p. 279; Stb. 1945 No. G 5.
195. Of 19 January 1946, Stb. 1947 No. H 307.
196. (95(I)), GAOR, 1st sess. Part II p. 188, YUN (1946–1947) p. 254.
197. Of 29 July 1899, Stb. 1900 No. 163; Trb. 1966 No. 299; 187 Parry CTS p. 429.
198. 75 UNTS p. 287; Trb. 1951 No. 75.
199. Of 10 June 1977, ILM (1977) p. 1391; Trb. 1978 No. 41.
200. Of 18 October 1907, Stb. 1910 No. 73; Trb. 1966 No. 281; 205 Parry CTS p. 277.
201. Of 14 February 1967, 634 UNTS p. 281; Trb. 1968 No. 145.
202. Of 23 May 1969, ILM (1969) p. 679; 1rb. 1972 No. 51.
203. Of 27 May 1952, Trb. 1952 No. 119.
204. Of 17 June 1925, 94 LNTS p. 65; Stb. 1930 No. 422.
205. Of 18 October 1907, Stb. 1910 No. 73; Trb. 1966 No. 282; 205 Parry CTS p. 299.
206. GAOR, 29th sess. Suppl. No. 31 p. 142; YUN (1974) p. 846.
207. Of 26 June 1945, Stb. 1945 No. F 321.
208. Of 9 December 1948, 78 UNTS p. 277; Trb. 1960 No. 32.
209. Of 19 December 1966, 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99.
210. Of 4 November 1950, 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154.
211. Of 26 May 1972, ILM (1972) p. 784.
212. Of 30 June 1978, Uitgave van het Ministerie van Buitenlandse Zaken No. 122, p. 33.Google Scholar
213. Note by Y.S. Klerk. Cited by I.F. Dekker and N.J. Schrijver in AA (1988) Katern No. 27, p. 1133, discussed by A.W. Heringa in ‘Verdragsconflicten en de rechten’ (Conflicts between treaties and the courts), NJB (1988) pp. 1187–1191.
214. For the text of Art. 94 see supra n. 122.
215. Art. 120 reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts’.
216. Trb. 1985 No. 145.
217. For the history of the Stichting see 18 NYIL (1987) p. 418 n. 172. Of the original 19, 248 natural and legal persons who instituted proceedings at first instance in conjunction with the Stichting, 13,806 were also co-appellants in the proceedings before the Court of Appeal.
218. The appellants' claim may be summarized as follows. First, they sought a declaratory judgment that the stationing of cruise missiles in Woensdrecht and/or elsewhere in the Netherlands and/or the use thereof is/are unlawful against them and against each one of them individually, and they sought an order prohibiting the State from stationing these missiles or cooperating in any way with such stationing and from permitting their use in the Netherlands or cooperating in any way with such use (Claims I-III).
Alternatively, they claimed that the State should be prohibited from stationing the missiles or from co-operating in such stationing if a veto right of the State concerning the use of these missiles is not included in the arrangements to be made with the United States or in the agreements to be concluded with the United States and/or a no-first-use declaration is not issued beforehand by the State and the United States and incorporated in the agreements to be made or the convention to be concluded (Claims IV-VI).
219. 18 NYIL (1987) pp. 417–422.
220. 27 ILM (1988) p. 90.
221. Cf., Bijl. Hand. II 1987/88 – 17980 Nos. 42 and 49.
222. The Court of Appeal based its summary of certain relevant articles from the Agreement on the Dutch text. The English translation of the articles which is given here was also published in Trb. 1985 No. 145.
223. 34 UNTS p. 243; Stb. 1949 No. J 355; Trb. 1951 No. 66. Art. 6 reads: ‘For the purpose of Article 5 an armed attack on one or more of the Parties is deemed to include an armed attack on the territory of any of the Parties in Europe or North America, on the occupation forces of any Party in Europe, on the islands under the jurisdiction of any Party in the North Atlantic area north of the Tropic of Cancer or on the vessels or aircraft in this area of any of the Parties.’
224. Trb. 1954 No. 120.
225. Art. 91 reads: ‘(1) The Kingdom shall not be bound by treaties, nor shall such treaties be denounced without the prior approval of the States General. The cases in which approval is not required shall be specified by Act of Parliament. (2) The manner in which approval shall be granted shall be laid down by Act of Parliament, which may provide for the possibility of tacit approval. (3) Any provisions of a treaty that conflict with the Constitution or which lead to conflicts with it may be approved by the Chambers of the States General only if at least two-thirds of the votes cast are in favour.’
Art. XXI reads: ‘The provisions of the following Articles of the 1972 version of the Constitution shall remain in force until a relevant Act of Parliament has been passed: (a) Articles 61 and 64, with reference to tacit approval; (b) Article 62. The provisions of Articles 61 and 64 of the 1972 version of the Constitution shall remain in force with regard to the tacit approval of agreements affecting the Netherlands Antilles as long as Article 24 of the 1975 version of the Charter for the Kingdom of the Netherlands applies.’
226. An appeal in cassation was lodged against the judgment given by the Court of Appeal.
227. Summarized in WRvS (1987) No. 1.39.
228. Act of 15 November 1967, Stb. 1967 No. 572. Art. 21 reads: ‘(1) After hearing the Nature Conservancy Council, the Burgomaster and Aldermen of the Municipality and the Provincial Executive of the Province, Our Minister may issue a decision designating a nature reserve owned by the State as a State nature reserve or wholly or partially withdrawing such a designation … (3) State nature reserves shall be managed so as to preserve or restore their natural beauty or scientific interest. (4) The provisions of Article 16, paragraphs 1 and 2(b) and (c) and Article 17 shall apply mutatis mutandis to State nature reserves.’
Art. 16 reads: ‘(1) It is prohibited to pollute a protected nature reserve, or, in such a reserve, to dig up, pick, cut off or transport plants, flowers or branches, to disturb, capture or kill animals, to attempt such or in general to cause damage to nature. (2) This prohibition shall not apply … (c) to third parties insofar as they perform actions for which Our Minister has granted an exemption.’
229. Art. 12 reads: ‘(1) It is prohibited to perform acts which are damaging to the natural beauty or scientific interest of a protected nature reserve or which disfigure such a reserve, or to cause or allow such acts to be performed, without a licence issued by Our Minister or in contravention of the conditions attached to such licence.’
230. For the route of the pipeline see the map on p. 370.
231. Institute's Collection No. 2223.
232. Summarized in WRvS (1984) No. 1.42, Institute's Collection No. 2456.
233. Summarized in WRvS (1985) No. X.3, Institute's Collection No. 2548.
234. Art. 80 reads: ‘Pending appeal, a decision may, at the request of the interested person, be stayed, in whole or in part, on the ground that execution of the decision would result in harm disproportionate to the interest served by immediate execution of the decision. Provisional measures to prevent such harm are also possible at his request.’
235. Summarized in WRvS (1986) No. R 20, Institute's Collection No. 2596.
236. Treaty of 8 April 1960, 509 UNTS p. 1; Trb. 1960 No. 69.
237. Treaty of 10 September 1984, Trb. 1984 No. 118.
238. Concluded in Copenhagen in December 1982. Cf., Jaarboek van het Departement van Buitenlandse Zaken (1982-1983), p. 139.Google Scholar
239. Cf., Jaarboek van het Departement van Buitenlandse Zaken (1985-1986) p. 149.Google Scholar
240. On the same day, the Division dismissed an appeal by the Landelijke Vereniging tot behoud van de Waddenzee against the decision by the Minister of Transport and Public Works to issue the NAM with a licence as referred to in the Dredging Regulations and the National Sea Defences Regulations to lay, own, maintain and remove the F-3 pipeline in the Waddensea and the territorial sea (summarized in WRvS (1987) No. 1.40, Institute's Collection No. 2825).
241. Partly reproduced in NIPR (1987) No. 430.
242. The Agreement was concluded by means of an Exchange of Letters of 4/5 December 1986. The full title of the agreement is ‘Agreement on the Training of Netherlands Armed Forces Units in Canada’, Trb. 1987 No. 20. At the time of the interlocutory injunction the Agreement had not yet been approved by the Netherlands Parliament. However, Canada had agreed to the provisional application of the Agreement as provided for in the agreement.
243. The District Court stated in its judgment that the Innu had been living in Labrador, in the provinces of Newfoundland and Quebec, from time immemorial. They call their country Ntesinan. They live in small groups in tent camps and are nomadic; they live by hunting caribou and fishing.
244. The exercise area had been in use by the air forces of West Germany, Great Britain, the USA and Canada itself since 1981.
245. Art. 1 reads: ‘(1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (3) The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination and shall respect that right, in conformity with the provisions of the Charter of the United Nations.’
Art. 17 reads: ‘(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.’ For the text of Art. 27 see supra n. 27.
246. 993 UNTS p. 3; ILM (1967) p. 360; Trb. 1969 No. 100. Art. 1 reads as Art. 1 cited supra in n. 245. Arts. 11–15 concern the right to an adequate standard of living, physical and mental health, education and cultural life.