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Netherlands judicial decisions involving questions of public international law, 1991–1992*
Published online by Cambridge University Press: 07 July 2009
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References
1. Note by R. Fernhout.
2. Rechtspraak Vreemdelingenrecht (1990) No. 91; ECR (1990) I, p. 3461.
3. Association between the European Economic Community and Turkey, Compilation of Decisions Vol. 2, 1983 edn., Secretariat of the Council of the European Communities.
4. OJ (1977) No. L 361 p. 29; Trb. 1963 No. 184.
5. Summarised in NIPR (1991) No. 457.
6. Institute's Collection No. 1892.
7. ‘De Trappenberg’ had also brought proceedings against Morocco previously, in 1978, on the assumption that no recovery would be possible against B. It requested the Court for a garnishee order to secure the debt on funds held by Morocco in accounts at the Banque de Paris et des Pays-Bas. The Court complied, whereupon Morocco applied to the Court for an interlocutory injunction for the cancellation of the garnishee order. The President gave judgment for Morocco (judgment of 18 May 1978, 10 NYIL (1979) pp. 444–445, ILR Vol. 65 p. 375).
8. NIPR (1985) No. 176; 18 NYIL (1987) pp. 354–356.
9. 18 NYIL (1987) pp. 354–356.
10. Partially reproduced in NIPR(1992) No. 248 and Sociaal Maandblad Arbeid (1992) p. 193.Google Scholar
11. Jura/ H/ 233 913 (18 March 1983) and Jura/ H/ 84/ 10 942 (31 July 1984).
12. Stb. 1945 No. F214. Art. 2(1) reads: ‘This Order is not applicable to the employment of (a) persons in the service of a public body …‘
13. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. The relevant part of 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or pan 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.’
14. 25 October 1990, see 23 NYIL (1992) pp. 447–449; summarised in NIPR (1991) No. 150.
15. An appeal has been lodged.
16. Art. 6 of the Extraordinary Labour Relations Order imposes a prohibition (subject to a few exceptions that are irrelevant in this case) on the termination of an employment relationship without the consent of the Director of the Regional Employment Office.
17. Partially reproduced in NIPR (1993) No. 156.
18. 31 ILM (1992) p. 138.
19. 815 UNTS p. 159, Trb. 1969 No. 115.
20. Art. 16 reads: ‘(1) Each Contracting Party shall take steps to enforce claims based on a judgment rendered by a court of the other Contracting Party in civil actions concerning: (a) the use of a ship belonging to, operated by or fully chartered by the first-mentioned Contracting Part; or (b) the carriage of passengers or cargoes on such a ship. (2) No ship belonging to one Contracting Party may be seized in the territory of the other Contracting Party in connection with a civil action within the meaning of paragraph 1 if the defendant designates a representative in the territory of the latter Contracting Party.’
21. See 5 NYIL (1974) pp. 290–296.
22. Institute's Collection No. 3612.
23. It is evident from the text of the judgment that the Court of Appeal decided on a practical consolidation of actions of BSC v. Pied-Rich and the RF v. Pied-Rich. Formal joinder did not occur. In the case of BSC v. Pied-Rich the text of the judgment that was drawn up was identical to that of the judgment in the case of the RF v. Pied-Rich. Pied-Rich has lodged an appeal in cassation against the judgment in the case against the RF.
24. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1991–1992 which involved the admission of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1993 (Bijl. Hand. II 1992/1993 – 22800 VI No. 3 pp. 82–88).
25. Note by P. Rodrigues.
26. Note by B.P. Vermeulen.
27. Note by P.A. Stein. Summarised in NJB (1992) No. 92, p. 173 and 11 Euro CL (1992) Nos. 231 and 232.
28. Art. 1371 reads: ‘An agreement entered into without cause or owing to a false or improper cause is without effect.’
Art. 1373 reads: ‘A cause shall be improper if it is prohibited by law or if it is contrary to morals or public order.’
29. For a survey of the legal actions taken by these seamen, in addition to challenging the dismissal procedure, reference should be made to an article by G. Heerma van Voss, ‘Discriminate en ontslag van buitenlandse zeelieden: de zaak Nedlloyd’ (Discrimination and dismissal of foreign seamen: the Nedlloyd case), NJCM-Bulletin (1985) pp. 187–202Google Scholar. See also nn. 31 and 32 infra.
30. De praktijkgids (1984) No. 2169; Rechtspraak Rassendiscriminatie (1987) No. 67, with note by J. Hoens.
31. Rechtspraak Vreemdelingenrecht (1990), with note by B.P. Vermeulen.
32. The District Court did not specify the international conventions. It was probably referring to the submissions by Bras, et al. It is evident from the judgment of the Sub-District Court that they had invoked Art. 26 of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Social Charter and a number of ILO conventions. Cf., supra, n. 29. The report of the National Ombudsman of 2 April 1986 (Rechtspraak Rassendiscriminatie (1987) No. 118, with note by Kruyt, A., Rechtspraak Vreemdelingenrecht (1986)Google Scholar No. 80 with note by Possel, A.C., and Ombudsman (1986) No. 20Google Scholar, with note by J.P.M. Zeijen) showed that the parties had specifically invoked Art. 2(2) of the International Covenant on Economic, Social and Cultural Rights, Arts. 16, 18 and 19 of the 1955 European Convention on Establishment, the 1958 ILO Convention concerning Discrimination in Respect of Employment and Occupation (No. 111), Art. 5(d) of the ILO Convention of 1982 (No. 158), Resolution 74 of the Committee of Ministers of the Council of Europe of 29 May 1974 ad the OECD Council decision of 30 November 1953. The National Ombudsman ruled that the Director of the Regional Employment Office had not sufficiently checked the application for dismissal in the light of these non-discriminationprovisions. In this respect, therefore, the Director had notacted properly.
33. Rechtspraak Rassendiscriminatie (1987) No. 52. Upheld by the Court of Appeal of The Hague on 28 June 1984, Rechtspraak Vreemdelingenrecht (1984) No. 24, with note by Hoens, J., Rechtspraak Rassendiscriminatie (1987) No. 70Google Scholar, with note by J.Hoens. After their dismissal on 28 September 1983 the seamen instituted interim injunction proceedings before the District Court of Rotterdam, contesting the legality of the dismissals. The President of the District Court held, however, that further investigation of the question whether discrimination had taken place was necessary, which was beyond the scope of the interim injunction proceedings (judgment of 9 November 1983, Rechtspraak Vreemdelingenrecht (1983) No. 111, with note by J. Hoens, KG (1983) No. 341, Rechtspraak Rassendiscriminatie (1987) No. 54, with note by J. Hoens). A number of the seamen then instituted interim injunction proceedings before the District Court of The Hague, demanding that they be treated like Dutch nationals in their search for new work. They argued that application of the Maritime Shipping Investment Premium Decree had the effect of discriminating against them. The President dismissed this argument (judgment of 18 October 1984, KG (1984) No. 324, Rechtspraak Rassendiscriminatie (1987) No. 78, with note by J. Hoens).
The Court of Appeal of The Hague upheld this judgment (judgment of 22 August 1985, KG (1985) No. 312, Rechtspraak Rassendiscriminatie No. 100, with note by J. de Boer). The Supreme Court in its turn quashed this judgment and referred the case to the Court of Appeal of Amsterdam for further consideration and decision (judgment of 20 November 1987, RvdW (1987) No. 218). The Court of Appeal of Amsterdam stayed the case pending the appeal against the judgment of the Sub- District Court of Rotterdam in respect of the dismissal. Finally, the Judicial Division of the Council of State denied the unemployed seamen the right to a residence permit, notwithstanding the fact that they had been wrongfully dismissed (judgment of 9 September 1988, Rechtspraak Vreemdelingenrecht (1988) No. 39, with note by G. Caarls).
34. Discussed on p. 492 and summarised in AB Kort (1991) No. 1239.
35. Note by B.P. Vermeulen on pp. 34–38.
36. Agreement to establish peace and normalcy in Sri Lanka, Colombo, 29 July 1987, ILM (1987) p. 1175.
37. 189 UNTS p. 137; Trb. 1951 No. 131. Art. 1(A) reads: ‘… the term refugee shall apply to any person who […] (2) as a result of events occurring before 1 January 1951 and owing to a 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’.
38. 10 June 1988, Nemesis (1988) No. 21.
39. 9 November 1989.
40. 14 December 1990, Nieimsbrief Asiel- en Vluchtelingenrecht (1991) p. 42Google Scholar, with notes on p. 5 and on pp. 47–48 by E. van Blockland and Simon; RvdW (1991) No. 11; Migrantenrecht (1991) No. 28, with note by B. Vermeulen; NJ (1991) No. 662, with note by Swart, A.H.J.; Nemesis (1992) No. 232Google Scholar, with note by Schutte, A. and Spijkerboer, T.; Rechtspraak Vreemdelingenrecht (1990) No. 9Google Scholar, with note by R. Fernhout; ELD (1992) No. 34, summarised in NJB (1991) p. 83 (No. 11).
41. Art. 34(2) of the Aliens Act provides that an application for review is deemed to have been refused if no decision has been taken on it within three months of the date of the application.
42. Art. 15(1) 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.’
43. 16 NYIL (1985) p.429.
44. 20 NYIL (1989) p. 315.
45. 20 NYIL (1989) p. 318, note 89.
46. Art. 3 reads: ‘No one shall be subjected to torture or inhuman or degrading treatment or punishment.’
47. Discussed in Nieuwsbrief Asiel- en Vluchtelingenrecht (1992) p. 19.Google Scholar
48. For the text of Art. 1(A), see supra, n. 35.
49. Art. 15 reads: ‘(1) 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 be refused only 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.’
50. For the text of Art. 3, see supra, n. 46.
51. For the text of Art. 1(A), see supra, n. 37.
52. No appeal in cassation has been lodged against the judgment.
53. Note by B.P. Vermeulen.
54. Decision of the Working Party on the Movement of Persons regarding the expulsion and transfer of persons, 28 June 1967, Luxembourg (Benelux) (M/P (67) 1) Trb. 1978 No. 171 p. 6. Art. 15 reads: ‘Aliens who are classified as undesirable in one of the Benelux countries may be expelled across an external frontier unless another Benelux country has an obligation to take over the alien or another Benelux country has given express consent to admit such aliens to its territory.’ Art. 16 reads: ‘Each of the Benelux countries shall grant consent for transit through its territory of aliens who are the subject of an expulsion order in another Benelux country and who may be expelled to third countries, if this is the quickest and simplest method of expulsion. The expenses incurred in connection with the transit shall be borne by the country which made the expulsion order. If the takeover by the foreign frontier control authorities does not take place for any reason, the alien shall be taken back by the last-mentioned Benelux country. If under agreements concluded with neighbouring third countries aliens are handed over by the foreign authorities to the authorities of one of the Benelux countries and the said aliens are in fact intended for another of the Benelux countries, the former Benelux country shall likewise grant consent for the transit of the alien through its territory at the expense of the country of destination.’
55. RvdW (1986) No. 12; Gids Vreemdelingenrecht No. F-133; Rechtspraak Vreemdelingenrecht (1985) No. 51; NJ (1987) No. 171; see also 18 NYIL (1987) pp. 377–381.
56. RvdW (1990) No.97; Gids Vreemdelingenrecht No.F-142; Rechtspraak Vreemdelingenrecht (1990) No. 44 with note by J.D.M. Steenbergen; discussed in NJB (1990) p. 795 (No.97).
57. 924 UNTS p. 2; BT Vol. IV-I; 12 European Yearbook (1964) p. 259; Art. 6 reads: “(1) In the cases specified hereunder, the Benelux Court shall consider questions of interpretation of the rules of law designated in Article 1 which arise in connection with litigation pending either before the jurisdictions of one of the three countries, sitting in their territory in Europe, or before the College of Arbitrators provided for under the Treaty instituting the Benelux Economic Union. (2) When it appears that the solution of a difficulty relating to the interpretation of a rule of law designated under Article 1 is required for a judgment in a case pending before a national jurisdiction, that jurisdiction, if it believes that it needs a decision in the matter in order to render its judgment may even as a matter of routine stay any final judgment in order to obtain a decision of the Benelux Court on the question of interpretation. (3) Under theconditions specified in the preceding paragraph, a national jurisdiction whose decisions are not subject to a jurisdictional appeal under national law must bring the question of interpretation before the Benelux Court …’
58. 1960 Benelux Convention on the transfer of control of persons to the external frontiers of Benelux territory, 374 UNTS p. 3; Trb. 1960 No. 40.
59. Partly reproduced in NJB (1992) p. 4 (No. 10) and NIPR (1992) No. 88. Notes by I. Sewandono in AB and C.A. Groenendijk in NJ.
60. Art. 429 quater of the Criminal Code reads: ‘(1) Any person who, in the exercise of his profession or business distinguishes between persons on account of dieir race, shall be liable to a term of detention not exceeding one month, or a fine not exceeding ten thousand guilders. (2) …’
61. Art. 1 reads: ‘All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or any other grounds whatsoever shall not be permitted.’
62. 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 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.’
63. 660 UNTS p. 195; Trb. 1966 No. 237. Art. 1 reads: ‘(1) In this Convention, the term ”racial discrimination” shall mean any distinction, exclusion, restrictionorpreference based on race, colour, descent, or national or ethnic origin which has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (2) This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. (3) Nothing in this Convention may be interpreted as effecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality. (4) Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
64. Stc. 1981 No. 33.
65. AB (1989) No. 213, with note by van Bakelen, F.A. and NJCM-Bulletin (1989) p. 43Google Scholar, with note by P.E. Minderhoud.
66. LBR Bulletin (1991) No. 6 p. 27, with note by N. Pattipawae.
67. The District Court had held that civil aviation regulations of foreign authorities cannot displace the anti-discrimination provisions that are laid down internationally and have direct effect. The fact that NBBS complied with these regulations did not therefore exculpate it in the eyes of the District Court.
68. See 16 NYIL (1985) pp. 497–500.
69. Note by F.W.G.M. van Brunschot.
70. Art. 49 defines the components of the domestic gross income of a person not resident in the Netherlands.
71. Art. 5 reads: ‘(1) The components of the income ofa married taxpayer not living permanently separated from his spouse, which do not belong to the personal earned income and the personal deductions from and additions to the gross income shall, if his personal earned income is smaller than that of his spouse, be treated as components of the income of his spouse. The provisions of the previous sentence shall also apply if a married taxpayer not living permanently separated from his spouse is not – but his spouse is – in receipt of personal earned income.
(2) The personal earned income shall consist of the joint amount of what the taxpayer receives as: […]
(3) The personal deductions from and additions to the net income shall be: […] (5) The provisions of the previous paragraphs shall apply only if both the taxpayer and the spouse are resident taxpayers […]’
72. Trb. 1971 No. 144, Art. 4(2) reads: ‘For the purpose of this Agreement a natural person who forms part of a diplomatic or consular mission of one of the States in the other State or in a third State and who is a citizen of the sending State, shall be deemed to be a resident of the sending State.’
73. 500 UNTS p. 89; Trb. 1962 No. 101. Art. 37(1) reads: ‘The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.’
74. Stc. 1964 No. 253. Art. 25 reads: ‘(1) Subject to the provisions of Articles 27, 28, 29 and 30, the diplomatic and professional consular agents of other Powers and the officials assigned to them shall be exempted from the taxes referred to in Article 26, provided that they:
(a) are not Dutch nationals; (b) do not hold any other employment, carry on a profession independently or run a business within the Kingdom. (2) The exemption of the agents and officials referred to in paragraph 1 shall apply, mutatis mutandis, to the persons in their employ, their spouse and any minor children and children-in-law and adopted children forming part of their household.
(3) For the purpose of this article a person of Dutch nationality shall be deemed to include a person who has lost Dutch nationality pursuant to Article 7, paragraph 1 (4), of the Act of 12 December 1892, unless he has foreign nationality. (4) The exemption shall be granted only on the basis of reciprocity.’
Art. 26 reads: ‘The exemption referred to in Article 25 shall apply to: (a) income tax; (b) wages and salaries tax; (c) wealth tax; (d) personal wealth tax levied by municipalities; (e) motor vehicle tax; (0 lottery tax; (g) turnover tax; (h) special consumer tax on the purchase of cars.’
Art. 27 reads: ’The exemption from income tax shall not extend to profits received other than in connection with the office or post and net income as referred to in Article 49 of the Income Tax Act 1964. The reductions in respect of extraordinary charges and deductible gifts shall not apply, and those in respect of the losses and personal obligations to be offset shall remain limited to what has been deducted in this respect for foreign taxpayers pursuant to Article 48, paragraphs 2 and 3, of the Income Tax Act 1964.’
75. Art. 39 reads: ‘In the cases in which international law or, in the opinion of Our Minister, international custom so obliges, exemption from tax shall be granted. Our Minister is competent to make rules about this.’
76. Note by J.C. Schultsz in NJ (1992) No. 653. Summarised in NJB (1992) p. 131 (No. 64), 9 Euro CL (1992) No. 453 and NIPR (1992) No. 255.
77. ILM (1977) p. 606; Trb. 1980 No. 23.
78. Trb. 1958 No. 46.
79. S&S (1991) No. 4, summarised in NIPR (1991) No. 209.
80. S&S (1991) No. 13, summarised in NIPR (1991) No. 209.
81. The Supreme Court used the Dutch translation.
82. Art. 320a (old) reads: ‘1. Anyone who wishes to exercise the power given to him in Article 740a of the Commercial Code to limit his liability shall request the District Court of the place where the ship is entered in the Dutch register of ships or, if the ship is not entered in the Dutch register of ships, the District Court in Rotterdam to fix the amount to which his liability is limited and to order that a procedure be instituted for the division of this amount.’
83. Art. 7 reads: ‘This Convention shall apply whenever the owner of a ship, or any other person having by virtue of the provisions of Article 6 hereof the same rights as an owner of a ship, limits or seeks to limit his liability before the Court of a Contracting State or seeks to procure the release of a ship or other property arrested or the bail or other security given within the jurisdiction of any such State.’
84. Note by R.S.J. Martha and E. Cohen-Henriquez, Summarised in NIPR (1989) No. 100. Discussed by Barnhoorn, L. A. N. M. in Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (1990) No. 100, p. 30Google Scholar, and by van Loon, H. in: Het dubbele aanzicht van Haagse verdragen: volkenrechtelijk en nationaalrechtelijke aspecten (1993) pp. 6–7.Google Scholar
85. Trb. 1985 No. 141.
86. ILM p.679; Trb. 1972, No. 51. Art. 18 reads: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force or the treaty and provided that such entry into force is not unduly delayed.’
87. In its final judgment the Joint Court of Appeal held that the Trusts Convention (which had in fact still not come into force) did not apply to the present trusts, that the trusts were not eligible for recognition and that the trust capital therefore formed part of the estate. Cornes was therefore obliged to bring this amount into the estate (judgment of 30 August 1988). On appeal in cassation, the Supreme Court quashed this judgment of the Joint Court of Appeal and referred the case back to the Joint Court of Appeal for further consideration and disposal (judgment of 9 November 1990, NJ (1992) No. 212 with note by Kleijn, W.M.; TAR-Justicia (1992) p. 49Google Scholar, with note by M. ten Wolde.
88. Note by J.C. Schultsz, summarised in NIPR(1991) No. 200; NJB (1990) p. 1692 (No. 203) and in NILR (1991) p. 413, with a note by K.F. Haak.
89. 399 UNTS p. 189; Trb. (1957) No. 84. Art. 31(1) reads: ‘1. In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal of a contracting country designated by agreement between the parties and, in addition, in the courts or tribunals of a country within whose territory: (a) the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract of carriage was made, or (b) the place where the goods were taken over by the carrier or the place designated for delivery is situated, and in no other courts or tribunals.’
90. ILM (1969) p. 229; Trb. 1969 No. 101. Art. 5 reads: ‘A defendant domiciled in the territory of a Contracting State may be sued in another Contracting State: (1) in contract matters, before the court of the place where the contract was or is to be performed […]’
91. Summarised in NIPR (1987) No. 465.
92. Art. 126 of the Code of Civil Procedure regulates the subject of relative jurisdiction.
93. S&S (1989) No. 88, summarised in NIPR (1989) No. 465.
94. See 23 NYIL (1992) p. 487 (at 6.23).
95. Art. 630 reads: ‘The court in the place where the goods are received or in the place intended for delivery of the goods, too, shall be competent to take cognizance of disputes as referred to in Article 31 of the Convention on the Contract for the International Carriage of Goods by Road.’
96. Trb. 1980 No. 205. Art. 3(1)(A) reads: ‘The term “United Kingdom” means Great Britain and Northern Ireland, including any area outside the territorial sea of the United Kingdom which in accordance with international law has been or may hereafter be designated, under the laws of the United Kingdom concerning the Continental Shelf, as an area within which the rights of the United Kingdom with respect to the sea-bed and subsoil and their natural resources may be exercised.’
97. Art. 1 reads: ‘The Convention shall apply to persons who are residents of one or both of the States.’
98. In the case of H.P.P.M. Gerritse v. Arekay Finance and Holding Company, the District Court of Arnhem held that the Dutch courts were not free to include the island of Jersey as part of the United Kingdom for the purpose of Dutch law since in conventions the United Kingdom had itself very clearly never regarded Jersey as part of Great Britain and Northern Ireland. The District Court referred in this connection to the Anglo-Dutch Enforcement Convention of 1967, the 1967 Supplementary Convention on Legal Proceedings with Great Britain, and the Convention on the recovery abroad of maintenance of 1956. Although it could have cited more conventions, the District Court considered that three were sufficient, since no other view had been advanced. It appeared from the conventions in question that the United Kingdom of Great Britain and Northern Ireland in each case considered that it consisted of England, Wales, Scotland and Northern Ireland. Jersey, like Hong Kong and the Bahamas, was regarded as an area for which the United Kingdom was responsible for the international relations.
Since Jersey was not named in the Order in Council of 5 April 1972 based on Art. 10 of the Code of Civil Procedure (Stb. 1972 No. 172) the writ of summons should have given at least two months' notice. As this was not the case, leave for a default judgment should be refused and the writ of summons against the defendant established in Jersey should be declared null and void. (Judgment of 11 April 1985, NJ (1985) No. 811, summarised in NIPR (1985) No. 474).
99. With notes by J. van der Velde and J. de Hullu.
100. Note by Th.W. van Veen, summarised in NJB (1991) p. 339 (No. 44).
101. Art. 1401 reads: ‘Every tort, as a result of which damage is caused to another, shall oblige the person through whose fault such damage is caused to pay compensation for the damage.’
102. Art. 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’
Art. 5 reads: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance widi a procedure prescribed by law; (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilmentof any obligation prescribed by law; (c) the lawful arrest or detention ofa person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’
Art. 13 reads: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’
103. 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. 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.
2. Everyone charged with acriminal offence shall bepresumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance 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; (d) 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; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’
104. NJ (1985) No. 426, with note by Th.W. van Veen.
105. Partially reproduced and discussed by A.H.J. Swart in AA (1988) and by E. Myjer in ‘Kostovski en de naamloos gebleven getuigen’ (Kostovski and the nameless witnesses), NJCM-Bulletin (1989) pp. 12–19.
106. NJCM-Bulletin (1989) p. 145, with note by J. de Hullu.
107. NJCM-Bulletin (1989) p. 149, with note by J. de Hullu; KG (1989) No. 122.
108. Art. 27(1) reads: ‘The Commission shall not deal with any petition submitted under Article 25 which: (a) is anonymous, or (b) is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.’
109. ECHR Series A. Vol. 110.
110. Art. 53 reads: ‘The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.’
Art. 32(4) reads: ‘The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.’
111. Art. 50 reads: ‘If the Court finds that a decision or measure taken by a legal authority, or any other authority of a High Contracting Party, is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.’
112. The European Court gave judgment in the case on 20 November 1989 (ECHR Series A, Vol. 166). Partially reproduced in NJCM-Bulletin (1989) pp. 1029–1031 and NJCM-Bulletin (1990) pp. 350–356 with note by E. Myjer and in NJ (1990) No. 245 with note by E. A. Alkema. After the Court had established that the Netherlands Government had offered to pay Mr Kostovski 150,000 guilders in a friendly settlement as just satisfaction for the non-pecuniary damage represented by his detention in the Netherlands, the Court decided to strike out of its list the claim for compensation ex Art. 50 of the Convention (29 March 1990, ECHR Series A, Vol. 170).
113. Note by L.J.M. van de Leede.
114. Note by C.M. Sjerps.
115. Note by L. Andringa.
116. For the text of Art. 26, see supra, n. 62.
117. 19 December 1978, OJ (1979) No. L 6/24.
118. See infra, under Held.
119. RSV (1990) No. 313, Nemesis (1990) No. 84.
120. 10 April 1990, RSV (1990) No. 314, with note by S. Feenstra.
121. S/RES/757 (1992) 30 May 1992.
122. Regulation (EEC) No. 1432/92 of the Council of 1 June 1992, prohibiting trade between the European Economic Community and the Republicof Serbia and Montenegro, Brussels, OJ (1992) No. L 151/4 dated 3 June 1992.
123. Stc. 2 June 1992 No. 104, p. 22; see also Municipal Legislation p. 332.
124. The cargo was sold ‘ex vessel Rotterdam’. For the sea transport to Rotterdam the seller had concluded a charter-party with the firm of Bocimar in Antwerp. Bocimar then concluded a backto-back agreement with Zeta. One of the holders of the bill of lading, Enerco, was entitled to delivery of part of the cargo and had delivery obligations to third parties in respect of the cargo (or part of it). On 7 September 1992 Bocimar and Enerco applied to the District Court of Rotterdam for an interim injunction ordering the State of the Netherlands, in view of the enormous damage which they would be likely to suffer if the cargo were not to arrive at its places of destination in time, to allow the ‘Crna Gora’ to enter the port of Rotterdam and discharge its cargo. The District Court dismissed the application and held that ‘if and when the plaintiffs were able to shed any different light on the ownership of the ship they could endeavour to have the report (on the basis of which the State had declared the economic boycott instituted by the Security Council to be applicable to the Crna Gora) withdrawn, or in any event to ensure mat no further consequences would be attached to it’ (KG (1992) No. 335, S & S (1993) No. 112).
A request by Enerco for an interim injunction pending an appeal to the Trade and Industry Appeal Tribunal against the refusal to provide an exemption as referred to in Art. 9 of the Serbia and Montenegro Sanctions Order 1992 from the prohibition on the provision of services to die ‘Crna Gora’ was dismissed (the appeal to the Trade and Industry Appeal Tribunal was later withdrawn) (11 September 1992, KG (1992) No. 318).
125. An appeal has been lodged.