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Netherlands judicial decisions involving questions of public international law, 1980 – 1981
Published online by Cambridge University Press: 07 July 2009
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References
1. Summarized in WRvS (1980) No. II. 562.
2. 10 ILM (1971) p. 895.
3. Note by M. Scheltema.
4. Note by the Editors.
5. Art. 43: “(1) Any person who is refused admission to the Netherlands, or is subjected to a measure that can be applied only to aliens, may, if claiming Dutch nationality, appeal to the Supreme Court of the Netherlands by means of a petition signed by a lawyer unless the law provides for a different procedure for obtaining a judicial decision”.
6. Trb. 1975 No. 132. For the text of Art. 3, see under “Held”.
7. For Art. 43, cf., Swart, A.H.J., “The Dutch Law on Aliens”, in International Law in the Netherlands Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) p. 104.Google Scholar
In the State of the Netherlands v. Th.L.V.S., the Court of Appeal of The Hague decided, in summary proceedings, that there should be no expulsion pending appeal based on Art. 43 unless the appeal was clearly unfounded. The question in this case was whether a Dutch woman, who had married a Barbadian in 1925 had thereby lost her Dutch nationality. The Court found that even the issue of a passport stating that she was a “citizen of Barbados” gave no definite answer to that question. (Judgment of 24 December 1980, Gids Vreemdelingenrecht No. D 13–62, Rechtspraak Vreemdelingenrecht (1980) No. 29, with a note by the Editors).
8. Cf., Ko Swan, Sik, “The Netherlands and the law concerning nationality”, in International Law in the Netherlands Vol. III (Alphen aan den Rijn, Dobbs Ferry, N.Y., 1980) pp. 34-5Google Scholar, and Bos, M., “Surinam's road from self-government to sovereignty”, 7 NYIL (1976) pp. 146-9.Google Scholar
9. In J.M.D. v. the Minister for Foreign Affairs, the Judicial Division of the Council of State determined the domicile referred to in Art. 3 of the Agreement along similar lines. The appeal was against the withdrawal of a Dutch passport. The Division found that the Minister had not adequately examined the factual circumstances, nor the appellant's intentions that could be derived from them; the decision to withdraw the passport was reversed. (Judgment of 8 June 1979, Rechtspraak Vreemdelingenrecht (1979) No. 47, with a note by the Editors).
10. A statistical survey of the decisions involving aliens law of the Judicial Division of the Council of State and the ordinary courts during 1980–1981 is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1982 (Bijl. Hand.II 1981/1982 - 17100 VI No. 2 pp. 63–5).
11. Trb. 1975 No. 133.
12. Article IV. “Acquired Rights. Surinamese nationals who have applied for a residence permit or for permission for temporary residence prior to 25 November 1980, and who have been shown to have fulfilled the relevant requirements laid down in the Agreement prior to this date, are eligible for a residence permit. Those who have a legal right to reside in the Netherlands on the basis of the Agreement continue to enjoy the rights acquired under the Agreement after 25 November 1980, including, e.g., the right to family reunion in accordance with the provisions of the Agreement. A Surinamese national, who is in the Netherlands on 24 November 1980 and who, before this date, has acquired a legal right to reside in the Netherlands (e.g., on the grounds of employment for which residence may be permitted) will also be able to execute this right after 25 November 1980, provided he applies for a residence permit and, where necessary, an employment permit, prior to 25 February 1981”.
The Telex Notice was addressed to the local chiefs of police. The State-Secretary of Justice informed the Second Chamber of the contents by letter on 25 November 1980. The Telex Notice includes the following introductory statements on the nature and purport of the Notice: “The validity of the Agreement with Surinam concerning the residence and establishment of mutual nationals (see Aliens Circular, Part G. under 9) expires on 24 November 1980.
After consultations between the Dutch and Surinamese authorities, agreement has been reached on the definition of the legal status of mutual nationals with regard to entry and residence as from 25 November 1980. The broad lines of this agreement will be laid down in annexes to a migration treaty. The parties may unilaterally supplement or modify these annexes after discussion of their intentions, should they so desire”. (Bijl. Hand. II 1980/81 - 16489 No. 2). The migration treaty was concluded on 23 January 1981, and published under the title “Agreement on the entry and residence of mutual nationals” in Trb. 1981 No. 35. The regulation contained in the Telex Notice appears partly in Annex I to the Agreement and partly in a Protocol on acquired rights annexed to the Agreement. Pending approval the Agreement with Annex and Protocol was provisionally applied as from 23 January 1981.
13. In view of the fact that his expulsion had been ordered, G. was placed under custody at the Military Police Barracks (Marechausseekazerne) at Badhoevedorp, on 17 December 1980, to which place he had been transferred after his arrest the week before. Custody based on Article 26 of the Aliens Act was declared null and void by the District Court of Haarlem on 23 December 1980, on the basis of non-observance of Art. 82 (2) of the Aliens Decree, which provides that aliens should be given a hearing. (For custody under Art. 26, Aliens Act, cf., A.H.J. Swart, op.cit. supra n. 7 at p. 100).
The Ministry of Justice also uses the Barracks for the detention of aliens who have been refused admittance at Schiphol airport and who cannot be expelled because there is no immediate return flight. The Ministry holds the view that such aliens remain outside the Netherlands in such cases (cf., 8 NYIL (1977) pp. 265–7). In the case of K.M. v. Public Prosecutor, the question arose of whether such imprisonment could be regarded as custody under Art. 26, Aliens Act. The District Court of Haarlem found that it followed from Art. 5 (1)(f) of the European Convention on. Human Rights that such imprisonment – considering the fact that M. had meanwhile applied for admittance as a refugee and had instituted summary proceedings in order to obtain an injunction staying expulsion – could be regarded as custody under Art. 26, Aliens Act. The Court ordered custody to be terminated for non-compliance with the provisions of the law (Judgment of 25 April 1980, Rechtspraak Vreemdelingenrecht (1980) No. 73, with a note by the Editors, NJ (1980) No. 407, discussed by A.H.J. Swart in AA (1980) p. 803).
14. The District Court applied the criteria of Art. 6, Aliens Act which is concerned with admittance to the Netherlands. It reads: “(1) In order to be admitted to the Netherlands, aliens must have a legal right to reside in the Netherlands under one of the Articles 8 - 10, and must fulfil the requirements established by Decree in respect of the possession of a document enabling them to cross frontiers. (2) Officers responsible for guarding the frontiers shall not refuse admittance to the Netherlands, unless especially so instructed by Our Minister, to aliens claiming that refusal would compel them to go immediately to a country where they have well-founded reasons to fear persecution on account of their religious or political opinion or their nationality, or on account of their membership of a particular race or social group”. Cf., Ko Swan, Sik, “The Netherlands Law on Aliens”, 1 NYIL (1970) pp. 247-67 at pp. 252-3Google Scholar and A.H.J. Swart, op.cit., supra n. 7 at pp. 83–4.
15. Art. 5: “(1) If any person is granted permission to reside in the territory of the other Contracting Party under the provisions of one of the Arts. 2–4, this Contracting Party shall also grant permission to reside to members of the family of the person concerned, if the person concerned can produce evidence that adequate housing is available. (2) ‘Members of the family’ include: the spouse; a person with whom the person concerned snares a permanent and exclusive relationship; minors, actually belonging to the household of the persons, over whom one of the parents has authority; other members of the family who actually belong to the household of the person concerned and who are dependent upon him”.
16. Art. 6: “(1) Each Contracting Party grants permission to reside in its territory for educational purposes to any person who can produce evidence to show that he has registered with an educational institution and that the costs of education and subsistence during the period concerned are covered; …”
17. In F.R. v. the State of the Netherlands, the President of the District Court of Alkmaar applied the Agreement to a Surinamese woman who had applied for a residence permit on 2 April 1980 in reliance on “family reunion”. On 26 November 1980, her application was refused by the State-Secretary, who also refused to accord a staying effect to the subsequent request for reconsideration. In order to avoid expulsion, F.R. instituted summary proceedings to obtain a court order prohibiting expulsion pending reconsideration. The President found the special protection which Surinamese nationals enjoyed under the now terminated Agreement (stay of expulsion pending reconsideration) was still applicable. The argument of the State that the policy in respect of Surinamese nationals had meanwhile been modified was dismissed by the President, given the applicability of the Agreement. (Judgment of 10 April 1981, RvdW/KG (1981) No. 6).
18. With a note by the Editors.
19. Stc. 1952 No. 132. Under Art. 53, passports for aliens may, on a positive advice from the Minister of Justice, be issued to persons having their principal residence in the Netherlands who are unable to obtain diplomatic or consular assistance in the country of which they are citizens, or a travel document enabling them to reach their place of destination.
20. ILM (1967) p. 368; Trb. 1969 No. 99. Art. 12: “(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) The above-mentioned rights shall not be subject to any restriction except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own country”.
21. Cf., Judgment of the Council of State, Judicial Division, of 4 April 1978, 10 NY1L (1979) pp. 459–60.
22. On appeal to the Minister, A. had further contended that, had he wished to make a request for review, he would have had to go once again to the German Consulate (= German territory), where he feared arrest. The Minister replied that A. could have entered an appeal in writing and, in addition, that “the office of the German Consulate-General could not be regarded as German territory”.
23. Cf., supra n. 21.
24. In Z.F. v. the Minister of Foreign Affairs, the Council of State formulated another criterion in order to establish that Article 53 had not been complied with. The Council found refusal to grant an “aliens passport” to Z.F., a Pole, not to be unreasonable where it had not been sufficiently proved that a properly-made request, in writing, for a Polish “consular” passport, addressed to the Polish Embassy, would be doomed to failure (Judgment of 27 March 1980, WRvS (1980) No. 2.156, referred to in note to Rechtspraak Vreemdelingenrecht (1980) No. 37).
25. Cf., Judgment of Council of State, Judicial Division, of 14 February 1978, 10 NYIL (1979) pp. 453–4.
26. Art. 95: “A favoured EEC national may be refused a residence permit only when he constitutes a danger to public order, national security or public health”.
27. In P.H.M. v.d.V. v. Commissaris van de Koningin in Noord-Holland, the Council also held the view that withdrawal of a passport cannot lead to a breach of Article 12 of the International Covenant, since everyone is free, even without a passport, to leave the country or return to it. On the same grounds, there was no violation of Art. 13 of the Universal Declaration on Human Rights or Art. 2 of the Fourth Protocol to the European Convention on Human Rights (Judgment of 4 May 1981, WRvS (1981) No. R. 1623). Cf., Ko Swan Sik, op.cit., n. 8 at pp. 41–4 and de Rouw, A.C.J. in “Some aspects of the right to leave and to return with special reference to Dutch law and practice”, 12 NYIL (1981) pp. 45–71.CrossRefGoogle Scholar
28. With a comment by the Editors.
29. Cf. OECD-Acts of the Organisation, 1953, Vol. 13. Art. 1: “(a) Authorities of any Member Country shall, unless it is otherwise provided for in this Decision, grant, on application made in the manner required by those authorities, permits in respect of the employment, in its territory, of suitable workers who are nationals of any other Member country, as soon as it is established that suitable labour, national or foreign, forming part of its regular labour force, is not available within the country for the employment in question. (b) For the purposes of this paragraph and subject to the provisions of sub-paragraph (c), suitable labour shall be deemed not to be available within the country if no suitable applicant has been found within a period of one month, at the latest, after the employer has both notified the vacancy in question to the employment service or any other service recognised officially as competent in the matter, and has also made known to that service his intention to apply for a permit to employ a foreign worker if suitable labour is not forthcoming within the country, always provided that the employer has taken such other steps as are customary in a case of the kind in question to try and fill the vacancy. (c) In the case of a Member country which notifies to the Organisation that, by reason of practical necessities, the period of one month provided for in sub-paragraph (b) is too short in its case, an alternative period, not normally exceeding two months, to be stated in that notification, shall apply”.
30. Previously, on 23 August 1979, the Council of State Judicial Division had dismissed R.B.'s appeal against the decision of the State-Secretary of Justice not to grant her a residence permit, in which the State-Secretary was guided, in particular, by the fact that the Minister of Social Affairs had already refused to grant R.B. a work permit. In that case, R.B. invoked the same OECD Council Decision, Article 9 (“Nothing in this Decision shall require Member countries to accord more favourable treatment regarding their employment to nationals of another Member country than that accorded to their own nationals”). The Division considered, however, that this Decision was not intended to thwart the aliens policies of Member countries. (Rechtspraak Vreemdelingenrecht (1979) No. 56, with a note by the Editors. For the Council Decision, cf. also, the note in Rechtspraak Vreemdelingenrecht (1978) No. 96).
31. With a comment by the Editors.
32. 218 UNTS p. 255; Trb. 1954 No. 100. Article 1: “Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as ‘assistance’), provided by the legislation in force from time to time in that part of its territory”.
33. The procedure in question, laid down in Arts. 34–46 of the General Assistance Act, is as follows: presentation of objection to Burgomaster and Aldermen – appeal to Board of Deputies – appeal to the Crown.
34. Article 84: “(1) An alien … may be granted assistance on the same basis as a Dutch national. A decision may be made by Order in Council that an alien staying in the Netherlands and belonging to a designated group shall be granted assistance. (2) The provisions of Chapter III are open for aliens whose entitlement is based on a treaty, as well as for aliens belonging to a group designated by Order in Council, as referred to in the second sentence of the first section. Where other aliens are refused assistance contrary to the generally recognized principles of proper government, the Crown may decide that they should be granted assistance”.
35. Art. 84 (1) does not impose an obligation to grant assistance. An obligation to giant assistance arises from a number of treaties, viz., the European Convention on Social and Medical Assistance, the Refugees Convention and the Convention on Stateless Persons. A circular issued on 6 December 1979 by the State-Secretary of Culture, Recreation and Welfare explains in detail which aliens other than those covered by these Conventions may be granted assistance under Article 84 (1), viz., (a) those possessing a valid residence title, (b) those not possessing a valid residence title, whose residence is known to the competent authority, and (c) those illegally in the Netherlands, but whose residence has not yet been found to have an unlawful character. Cf., Royal Decree, 7 June 1980, Rechtspraak Vreemdelingenrecht (1980) No. 93 with a comment by the Editors.
Persons seeking asylum are classed in the third category until a final decision on their request for admittance as a refugee. Cf., for an application for assistance pending a request for admittance, Royal Decree, 12 September 1978 No. 21, Rechtspraak Vreemdelingenrecht (1978) No. 88 with a comment by the Editors; for an application for assistance pending a request for reconsideration, Royal Decree 31 May 1978 No. 39, Rechtspraak Vreemdelingenrecht (1978) No. 85 with a comment by the Editors, and Royal Decree 17 July 1979 No. 27, Rechtspraak Vreemdelingenrecht (1979) No. 111, with a comment by the Editors. Thus, at this stage, persons seeking asylum cannot derive rights from Art. 23 of the Refugees Convention, but cf. the observation of Swart, A.H.J. in “The legal Status of Aliens: Clauses in Council of Europe Instruments relating to the Rights of Aliens”, 11 NYIL (1980) p. 35.CrossRefGoogle Scholar
36. In M.H.M. v. Chairman of Gedeputeerde Staten van Noord-Holland (Board of Deputies of the Province of North Holland), 3 June 1980, the President of the Judicial Division of the Council of State held that residence is still lawful within the meaning of Art. 1 of the European Convention, when a residence permit has expired through the neglect of the holder (according to Art. 11 of the Convention); when appeal still lies against refusal to grant a new residence permit, and when no court order for expulsion has yet been issued (Rechtspraak Vreemdelingenrecht) (1980) No. 42 with a note by M.G.L. van Schouwenburg and discussed by de Miranda, M. in “Als ware hij een Nederlander …” (“As if he were a Dutch national …”), 29 AA (1981) pp. 491–499 at p. 498.Google Scholar
37. Thus, the appeals procedure laid down in Chapter III is open to nationals of States Parties to the European Convention unless and until it has been established that they are unlawfully resident in the Netherlands.
This procedure is not open to refugees, unless they have been recognized as such. Pending the decision on their request for admittance as a refugee, they have to depend on the appeals procedure of Art. 84 (2), second sentence, except – as in this case – where the putative refugee is a national of a State Party to the European Convention. Stateless persons cannot derive rights to the appeals procedure of Chapter III from the Stateless Persons Convention. They depend on the procedure laid down in Article 84 (2), second sentence. Cf., Royal Decree, 26 August 1980 No. 10, WRvS (1980) No. IV. 530.
38. Art. 43 (1) reads: “Burgomaster and Aldermen, as well as the person referred to in Art. 41, may enter an appeal in writing to the Crown within a month of the date of issue of the decision of the Board of Deputies …”. For further comment on assistance to aliens, cf., J.W. Rekers, Gids Vreemdelingenrecht, Commentaar (Comments), Chapter X.
39. With a note by the Editors.
40. Article 4: “(1) … (2) A permit may otherwise be refused only on grounds relating to the state of or anticipated developments in the labour market”.
41. Article 8: “(1) A permit may be refused if there is a sufficient supply of labour for the kind of work concerned or if such apply is reasonably to be anticipated….” Cf., also 10 NYIL (1979) pp. 431–3 and A.H.J. Swart, op.cit., supra n. 7, p. 106.
42. 359 UNTS p. 89; Trb. 1961 No. 3. Article 18: “With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Contracting Party, the Contracting Parties undertake: (1) to apply existing regulations in a spirit of liberality; (2) to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers; (3) to liberalise, individually or collectively, regulations governing the employment of foreign workers; …”
43. ILM (1967) p. 360; Trb. 1969 No. 100. Article 7 reads: “The State Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: (a) … (b) … (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; …”
44. The European Social Charter entered into force for the Netherlands on 22 May 1980. Cf., Trb. 1980 No. 65.
45. Stb. 1963 No. 563. Art. 65: “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: “Legal regulations in force within the Kingdom shall not apply if this application should be incompatible with provisions, binding on anyone, of agreements entered into either before or after the enactment of the regulation”.
46. The District Court of Breda adopted similar reasoning in the prosecution of B.V. “Jan de Poorter”, in which the company was convicted for infringement of the Aliens Work Permits Act. The Court dismissed the opinion that the Act was not binding because of incompatibility with: (1) Article 1 of the European Social Charter and Article 6 of the International Covenant on Civil and Political Rights, since neither instrument had been ratified by the Netherlands (The Attorney-General remarked that reference was probably meant to be made to Art. 6 of the International Covenant on Economic, Social and Cultural Rights); (2) the International Convention on the Elimination of all Forms of Racial Discrimination, given the provisions of Art. 1 (2) of the Convention; and (3) Article 23 of the Universal Declaration on Human Rights, since the Declaration included no ‘provisions binding on anyone’ (Judgment of 8 November 1978). On 15 January 1980, the Supreme Court dismissed the appeal against this Judgment (NJ (1980) No. 266, DD (1980) No. 128, ELD (1980) p. 377).
47. With comment by the Editors. Mentioned in a note to Rechtspraak Vreemdelingenrecht (1980) No. 96 and by E.A. Alkema in Bestuurswetenschappen (1982) p. 98.
48. Act of 16 September 1896, Stb. 1896 No. 156. Art. 152 (1) reads: “All aliens, whether plaintiffs or third parties must, at the request of the opposing party, give security for costs, damages and interest which might be awarded against them, before the opposing party is bound to answer the complaint”.
49. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 6 (1): “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….”
50. 120 UNTS p. 71: Trb. 1951 No. 34. Art. 6 (1): “Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters: (a) in so far as such matters are regulated by law or regulations, or are subject to the control of adminstrative authorities – (i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons; … (d) legal proceedings relating to the matters referred to in this Convention”.
51. Art. 26: “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”.
52. Cf., 11 NYIL (1980) p. 295.
53. Cf. Swart, A.H.J., “The Legal Status of Aliens: Clauses in Council of Europe Instruments relating to the Rights of Aliens”, 11 NYIL (1980) p. 46.CrossRefGoogle Scholar
54. With a note by the Editors. Analyzed by Hoeksma, J.A., in Tussen vrees en vervolging. Een inleiding in het vluchtelingenrecht (Between fear and persecution. An introduction to the law of refugees), Assen: Van Gorcum, 1982, pp. 159, 190-2 and 223.Google Scholar
55. Cf., Council orState, Judicial Division, 4 April 1978, 10 NYIL (1979) pp. 459–60, and J.A. Hoeksma, op.cit., supra, n. 54 pp. 159 and 190–2.
56. A similar view was expressed in G.M.D. v. the State-Secretary of Justice, where the Judicial Division had to decide if there was a likelihood of persecution following D's failure to perform civilian work in lieu of compulsory military service in Bulgaria. The Division found that if D. were to return to Bulgaria persecution would not be likely. (Judgment of 14 February 1980, Rechtspraak Vreemdelingenrecht (1980) No. 2 with a note by the Editors; Gids Vreemdelingenrecht No. D 12–35. Discussed by J.A. Hoeksma, op.cit., supra n. 54 pp. 159, 190 and 210). See also, with respect to the Colombian, N., who had avoided military service in Colombia for political reasons, the Judgment of 17 April 1980 (Rechtspraak Vreemdelingenrecht (1980) No. 4. Discussed by J.A. Hoeksma, op.cit., supra n. 54 p. 199).
57. 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 (A): “For the purposes of the present Convention the term ‘refugee’ shall apply to any person who … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular 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”.
58. Art. 15 (1): “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationality … or membership of a particular group, may be admitted as refugees by Our Minister”.
59. Comment by the Editors. Discussed by J.A. Hoeksma, op.cit., supra n. 54 p. 211.
60. The Judicial Division regarded this appeal implicitly as an appeal against M.'s declaration as an undesirable alien.
61. Article 21: “(1). An alien may be declared undesirable by Our Minister: (a) … (b) if a final judgment has been delivered against him for a crime wilfully committed and punishable with at least three years' imprisonment;… (4). Articles 8–10 are not applicable to aliens declared undesirable”. Cf., A.H.J. Swart, op.cit., supra n. 7, pp. 97–8 and Ko Swan, Sik, “The Netherlands Law on Aliens”, 1 NYIL (1969) pp. 261-2.Google Scholar
62. Thus, the State-Secretary of Justice adopted a procedure other than that followed in previous cases. Cf., Council of State, Judicial Division, 16 December 1975, 7 NYIL (1976) p. 322.
63. With a note by the Editors. Discussed by J.A. Hoeksma, op. cit., supra n. 54 p. 130 and by M.J. van Enk in AA (1982) p. 9.
64. Article 15: (1) “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationality … may be admitted as refugees by Our Minister. (2) Admittance cannot be refused save for important reasons in the public interest, if refusal would force the alien immediately to return to a country as defined in para. 1”.
65. Article 1 (A): “For the purposes of the present Convention the term ‘refugee’ shall apply to any person who … (2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”
66. Bijl. Hand. II 1962/63 – 7163 No. 3, p. 11
67. Bijl. Hand. II 1962/63 – 7163 No. 11.
68. Bijl. Hand. II 1962/63 – 7163 No. 14.
69. Cf., the cases reported in 12 NYIL (1981) p. 321 n. 55. The case of H.S. v. the State-Secretary of Justice (Judgment of 26 January 1981, WRvS (1981) No. 2.68) shows that the second (continued) Report could not persuade the Division to change its views.
70. Summarized in WRvS (1980) No. 2.482.
71. RMS = Republik Maluku Selatan (Republic of the South Moluccas).
72. Cf., Kuyper, P.J. and Kapteyn, P.J.G., “A Colonial Power as champion of self-determination: Netherlands state practice in the period 1945–1975” in International Law in the Netherlands, Vol. III (Alphen aan den Rijn: Dobbs Ferry, N.Y., 1980) pp. 162-4.Google Scholar
73. Cf., P.J. Kuyper and P.J.G. Kapteyn, loc.cit., pp. 171–6. Thus, the Judicial Division of the Council of State did recognize the refugee status of an Indonesian national, O.S. In this case, fear of persecution was held to result, in particular, from the fact that O.S. was a former confidant of the late Dr. Soumokil, and had composed the South-Moluccan anthem. He was among the most prominent supporters “of the idea, popular in his circle, of an independent Republic of the South Moluccas” and in that capacity was known to the Indonesian authorities. (Judgment of 20 Dec. 1979; Rechtspraak Vreemdelingenrecht (1979) No. 13 with a note by the Editors. Discussed by J.A. Hoeksma, op.cit., supra n. 54 p. 183. For the problems connected with O.S.'s admittance to the Netherlands, cf., 10 NYIL (1979) p. 340).
74. Summaries of Supreme Court decisions in 1981 on extradition can be found in Delikt en Delinkwent, with a table of the Articles of the Extradition Act and the extradition treaties applied. The most important are also published in the Nederlandse Jurisprudence, with an annual subject index (the relevant entry here being: Uitlevering [Extradition]).
75. Summarized in DD (1980) No. 226 and ELD (1981) p. 252.
76. Trb. 1962 No. 97. Art. 5: “(1) The High Contracting Parties will not extradite their own nationals….”
77. 359 UNTS p. 273; Trb. 1965 No. 9. Art. 6: “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 instruments of ratification or accession, define as far as it is concerned the term ‘national’ within the meaning of this Convention”. The reservation reads: “The Netherlands Government will not grant extradition or transit of its own nationals. As regards the Netherlands, ‘nationals’ for the purposes of the Convention are to be understood as meaning persons of Netherlands 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.”
78. Art. 26 see supra n. 51.
79. Article 10 (2): “Extradition is not allowed in cases where, in the opinion of the Minister of Justice, its consequences would cause particular hardship to the person claimed because of his youth, advanced age, or poor state of health”.
80. Cf. Trb. 1969 No. 62. “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”. Cf., also Kuyper, J.R.H., “The Netherlands Law of Extradition” in International law in the Netherlands, Vol. II (Alphen aan den Rijn, Dobbs Ferry, 1979) pp. 230-1.Google Scholar
81. Cf. Supreme Court 1 February 1977, 9 NYIL (1978) pp. 288–9, and 10 January 1978, 10 NYIL (1979) pp. 464–5. Cf. also, J.R.H. Kuyper, op.cit, supra n. 80 pp. 217–18 and Remmelink, J., Uitlevering (Extradition) (Arnhem: Gouda Quint, 1982) p. 49.Google Scholar
82. In N.P.L. v. the State of the Netherlands, where L. brought summary proceedings to challenge the decision of the Minister of Justice to extradite him to Belgium, the President of the District Court of The Hague considered that the State, having regard to the absence of the hardship clause from the Benelux extradition treaty, had correctly left this clause out of consideration. Nevertheless, the President disallowed extradition until the European Commission of Human Rights had made a decision on the complaint which L. had entered against the Netherlands and Belgium a few days before the summary proceedings, and which he considered might be successful. (Judgment of 2 September 1980, Rechtspraak Vreemdelingenrecht (1980) No. 113, with a comment by the Editors. Discussed by Silvis, J. in “Humanitaire normering van Benelux-uitleveringsrecht (Humanitarian rules for Benelux extradition law), Nederlands Juristenblad (1981) pp. 1148-9Google Scholar and by Swart, A.H.J. in “De rechten van de mens in het uitleveringsrecht” (Human rights in extradition law), Mededelingen (Proceedings) of the Netherlands International Law Association No. 85 pp. 93 and 105Google Scholar. The note in Rechtspraak Vreemdelingenrecht mentions that in April 1981, when the European Commission had accepted the complaint for consideration, Belgium withdrew its request for extradition. Cf., District Court of The Hague, 14 November 1977, 9 NYIL (1978) pp. 293–5.
83. Summarized in D.D. (1981) No. 220. Discussed in RMT (1982) p. 317 and by A.H.J. Swart, op. cit., supra n. 82 p. 141 n. 71.
84. Article 8: “The requested Party may refuse to extradite the person claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested”.
85. Article 2: “(1) Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months …”
86. Article 6 (1) see supra n. 49.
87. Art. 9: “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”.
88. Art. 9: “(1) Extradition of the person claimed shall not be granted for an offence in respect of which: (a) at the time of the decision on the request for extradition, criminal proceedings are in progress against him in the Netherlands; … (c) if a Dutch court has passed final judgment, either acquitting him or dismissing the case, or if such a final judgment has been passed by a foreign court; … (2) The provisions in the preceding section, opening sentence and (a) are not applicable in cases where Our Minister, when deciding to grant extradition, also issues an order to terminate the proceedings …”. Cf., J.R.H. Kuyper, op cit., supra n. 80, p. 227 et seq.
89. Unlike Solicitor-General Biegman-Hartogh, who concluded from the wording of the provision and tfie principle of law impliedtherein, that, in the Netherlands, the right is provided for lay in the judge's discretion.
90. Cf., J.R.H. Kuyper, op. cit., supra n. 80, pp. 223–4 and Remmelinck, op. cit., supra n. 81 p. 46.
91. In M.L.F. v. Public Prosecutor, the Supreme Court refused to make an assessment with respect to the requirement of “reasonable time” within the meaning of Art. 6 (1) of the European Convention on Human Rights and Art. 14 of the International Covenant on Civil and Political Rights. The Court considered, as it had in a previous case, that the examination of the admissibility of extradition was not intended to extend to examining the correctness of proceedings instituted against the person claimed, or to determine his civil rights and obligations laid down in treaty provisions (Cf., HR 9 October 1973, 5 NYIL (1974) pp. 313–14; cf. also, J.R.H. Kuyper, op. cit., supra n. 80 p. 222, and A.H.J. Swart, op. cit., supra n. 82 pp. 104–13. The appellant had pleaded that Italy had exceeded the time-limit referred to in Art. 13 of the European extradition treaty by three months (A letter from the Dutch Ministry of Justice, dated 3 April 1979, in which additional information was requested, was not answered by Italy until October 1979). Invocation of Art. 2(3)(a) and Art. 13 of the International Covenant on Civil and Political Rights was likewise held to be of no avail (Judgment of 2 September 1980, NJ (1981) No. 12, summarized in DD (1980) No. 346. Mentioned by Alkema, E.A. in Bestuurswetenschappen (1982) p. 104Google Scholar n. 70 and by Remmelink, op.cit., supra n. 81, p. 66).
92. For the text of Art. 9 (1)(c), see supra n. 88.
93. In the case of the Austrian national, P.W., the situation was almost reversed. While proceedings against him in the Netherlands were still going on, he was extradited to Austria in connection with a different offence. P.W.'s counsel requested the Court to stay the proceedings until P.W. could attend in person. The Court refused this request: it did not follow from Arts 6 (1) and 3 (a-d) of the European Human Rights Convention that the proceedings had to be stayed to make it possible for P.W. to attend in person, in particular where this would seriously endanger his case being heard within a reasonable time. Nor was it necessary, in the Court's view, to stay the proceedings under Art. 39 of the Extradition Act and Art. 19 (1) of the European extradition treaty, since these provisions contained only a right, not an obligation, vis-a-vis, the requested State (Judgment of 7 April 1981, NJ (1981) No. 443, summarized in DD (1981) No. 274. Discussed by Myjer, E. in NJCM-Bulletin (1981) pp. 310-13Google Scholar, Remmelink, op.cit., supra n. 81 p. 84 and A.H.J. Swart, op.cit., supra n. 82 p. 140 n. 67).
94. Article 8: “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”.
95. For the text of the Articles, see under Held.
96. Article 18: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his shoice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own conviction”.
Article 26 see supra n. 51.
Article 27: “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 the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.
97. Rechtspraak Vreemdelingenrecht (1979) No. 41, with comment by the Editors.
98. A similar conclusion was reached by the Judicial Division of the Council of State in M.B. v. the State Secretary of Justice. The Division considered, in addition, that the judgment of the European Commission of Human Rights in Mohammed Alam et al. v. Great Britain (2991/66, 10 Yearbook of the European Convention on Human Rights (1967) p. 467Google Scholar) would not suggest a different outcome. (Judgment of 28 February 1980, Gids Vreemdelingenrecht No. D 13–52, AROB, section III, p. 925, with note by H.P. Vonhögen). Cf. also, 11 NYIL (1980) p. 308.
99. Note by the Editors.
100. Laid down in one of the conclusions adopted during the 28th session of the Executive Committee, at Geneva, (4–12 October 1977), viz., Conclusion 6 (e)(vii): “The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending”. (Addendum to the Report of the UNHCR, 1977, A/32/12/Add. 1, p. 15).
101. Rechtspraak Vreemdelingenrecht (1979) No. 20, with note by the Editors.
102. Memorandum of 28 June 1979, Bijl. Hand. II 1978/1979 – 15649 No. 2.
103. Such was the view of the President of the District Court. Similarly, the Court of Appeal of 's Hertogenbosch in W.Z. v. the State of the Netherlands (Judgment of 9 April 1980, Gids Vreemdelingenrecht No. F-21) and the District Court of Zwolle, 23 March 1981, infra pp. 355–6.
104. Similarly, the District Court of Amsterdam, 2 August 1979 (Rechtspraak Vreemdelingenrecht (1979) No. 18, with a note by the Editors). The Amsterdam Court of Appeal, however, took the following view in its judgment in the case of the State of the Netherlands v. I.Z.: “In the Court's provisional view, the term ‘misuse’ in the second passage refers not, or not only, to the use of the asylum procedure by aliens who know they are not refugees – in that case the term ‘abuse’ which also figures in that passage would seem to be the proper term – but includes all those cases where reliance on refugee status is ill-founded. So, whenever it appears from further examination (which follows when an application is not immediately declared “clearly abusive”) that reliance on refugee status is ill-founded, the application will be refused and there will generally be no grounds to accord a staying effect to appeal proceedings …” (Judgment of 28 February 1980, NJ (1980) No. 492, Gids Vreemdelingenrecht No. F-17, Rechtspraak Vreemdelingenrecht (1980) No. 9, with a note by the Editors).
105. With a note by the Editors. Mentioned by Alkema, E.A. in Bestuurswetenschappen (1982) p. 79 n. 9.Google Scholar
106. Article 8 see supra n. 94.
107. Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
108. 6 Yearbook of the European Convention on Human Rights (1963) p. 14Google Scholar; Trb. 1964 Nos. 15 and 77.
109. Article 4: “Collective expulsion of aliens is prohibited”. At the time of the summary proceedings, Protocol IV had not yet been ratified by the Netherlands.
110. 660 UNTS p. 195; Trb. 1966 No. 237.
111. 13 ILM (1974) p. 50; 60 AJIL (1966) p. 650; Twenty-Eighth Session of the U.N. General Assembly, publication of the Ministry of Foreign Affairs, Vol. 105 (1974) p. 421.
112. Article 90 quater: “The term discrimination shall mean any form of distinction, any exclusion, restriction of preference, the purpose or effect of which is to nullify or impair 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”. Cf. also, 4 NYIL (1973) p. 431.
113. The Judgment of the District Court of The Hague of 13 February 1981 (RvdW/KG (1981) No. 34, Rechtspraak Vreemdelingenrecht (1981) No. 57) in summary proceedings, which fifty-nine other members of the group had instituted against the State of the Netherlands, contains the following report of the events preceding the summary proceedings:
“After conflicts had arisen among gipsies at a gipsy encampment at the Coentunnelweg, Amsterdam, a group of them, including the plaintiffs, travelled to The Hague on 17 December 1980, in order to protest to the Government at the Binnenhof; the group then left for Almere and, via Zeist, arrived on 11 January 1981 at the German frontier, where the German authorities refused to admit them. When the group attempted to leave the Netherlands via Belgium, they were stopped by the Belgian national guard; on the basis of the ‘take-over’ arrangement, the Belgian authorities demanded that the Netherlands should take back the whole party anonymously, which the Netherlands refused to do. After consultations, it was agreed that the group should be brought back to Dutch territory, where registration would take place. At the registration, on 16 January 1981, only a limited number of travel documents were produced, whereupon the whole group was detained; the detention was later terminated by the District Courts of Middelburg and Zwolle….”
Finally, the whole group of gipsies was offered residence by the Landdrost van het Open-boar Lichaam Zuidelijke Ijsselmeerpolders (Bailiff of the Southern Usselmeer Polders), at an encampment at Almere.
114. Bijl. Hand. II 1962/63 – 7163 No. 3 pp. 11–12.
115. Bijl. Hand. II 1978/79 – 15649 No. 2, pp. 29–32. Cf. also supra pp. 352–3.
116. In the case brought before the District Court of The Hague (see supra n. 113), it was argued that the State-Secretary had failed to establish an admittance policy with respect to foreign gipsies and to lay down criteria (which he allegedly should have done under the 1969 Council of Europe Recommendation No. 563 and the 1975 Resolution of the Council of Europe Committee of Ministers). The President refuted this argument as follows: “… Obviously, an admittance policy which respects the life-style of groups of people who travel around Europe requires international arrangements. Where it has been established that the defendant is endeavouring to realize such an international arrangement, although so far unsuccessfully, the defendant cannot reasonably be blamed for failure to formulate its own regulations for admittance unilaterally …”. Cf., also Weilers, R., “Oplossing zigeunersproblematiek langs Internationale weg [Solution oLthe gipsy problem by international means] Rechtshulp (1981 No. 6/7, p. 20-3Google Scholar. and supra pp. 188–9.
117. In the case brought before the District Court of The Hague (see supra n. 113), the President ruled out expulsion by aircraft. He considered this unreaso nable, since such a form of expulsion would immediately separate the plaintiffs from their means of transport, and would thus affect the most important elements of their nomadic existence. In addition, all the possibilites of expulsion by road had not been exhausted.
118. Summarized in DD 1980 No. 305 and by Myjer, E. in NCJM-Bulletin (1980) p. 389.Google Scholar
119. Article 137e: “(1) Any person who for reasons other than the provision of factual information (i) publishes a remark which he knows, or which he has reasonable cause to suspect is insulting to another group of persons on account of their race, religion or beliefs, or which incites to hatred of, or discrimination against other persons, or to violence against the person or property of others on account of their race, religion or beliefs; or, (ii) distributes, or has in his possession with the intention of effecting distribution or publication, any object which he knows, or he has reasonable cause to suspect contains such a remark, shall be liable to a term of imprisonment not exceeding six months or a fine not exceeding five thousand guilders”.
120. Article 10: “(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health and morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
121. The appellant had been sentenced before by the same District Court for the same offence (two weeks' imprisonment), but the conviction was overturned by the Court of Appeal of The Hague because of the invalidity of the summons. Cf., 9 NYIL (1978) pp. 300–1, where the facts are set out in detail.
122. Considering the greatly increased number of cases brought before Dutch courts in which the provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights are at issue, and the limited space available in the Yearbook, the Yearbook has, since Volume XII, not included complete documentation of all decisions. Only cases which are interesting from the viewpoint of general international law will henceforth be mentioned. For a complete overview, reference should be made to the annual surveys in the Yearbook of the European Convention on Human Rights, and the Cahiers de Droit Européen (for the European Convention) and in the NJCM-Bulletin (for the European Convention and International Covenants).
123. With a note by W.H. Vermeer.
124. Article 4(3)(b): “For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: … (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;”
Article 6(1) see supra n. 49.
Article 6(3)(b): “Everyone charged with a criminal offence has the following minimum rights: … (b) to have adequate time and facilities for the preparation of his defence;”
Article 9(1): “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.
125. Article 8(3)(c)(ii): 3. … (c) For the purpose of this paragraph the term “forced or compulsory labour' shall not include: (i) …; (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;”
Article 14(1): “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….”
Article 14(3)(b): “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) … (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;”
Article 18(1): “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
Article 26 see supra n. 51.
126. Judgment of 8 June 1976, Publ. ECHR, Series A Vol. 22 (1977), NJ (1978) No. 223.
127. MRT (1980) p. 583.
128. Art. 66 see supra n. 45.
129. For a similar invocation of Article 26 of the International Covenant, cf., 12 NYIL (1981) pp. 331–2. In that case neither the Courts Martial Appeals Court nor the Supreme Court questioned the direct applicability of Article 26. That the Supreme Court has no doubts as to the direct applicability of Article 26 also appears from (a) the Judgment of 29 January 1980, in which the Court found that the distinction between car drivers and cyclists found in certain regulations was not contrary to Articles 14 (1) and (3) and 26 of the International Covenant (summarized in DD (1980) No. 140 and discussed by E. Myjer in NJCM-Bulletin (1980) p. 151) and (b) the Judgment of 8 October 1980, in which the Court decided that the conditions under Article D 4 (2) of the Electoral Act for married women to be placed on the electoral register were not in conflict with Article 26 (RvdW (1980) No. 129, AB (1981) No. 63, including the statement by Solicitor-General Franx, who considered in detail the question of the direct applicability of Article 26, NJ (1981) No. 308, with a note by F.H.J. Mijnssen, discussed by Brenninkmeyer, A.F.M. in “De ongelijke behandeling van vrouwen en mannen in de AAW” (Unequal treatment of women and men in the Act on General Disablement) NJB (1981) pp. 617–618Google Scholar and by Verburg, P.D. in “De Kieswet” (Electoral Act), De Praktijkgids (1981) pp. 533–537Google Scholar. Summarized in ELD (1982) p. 53).
130. With a note by W.H. Heemskerk. Summarized and discussed by Alkema, E.A. in EuGRZ (1980) pp. 213-15Google Scholar. Summarized in ELD (1981) p. 250. Discussed by Bossuyt, M.J. in RBDI (1980) pp. 324–325Google Scholar, by Alkema, E.A. in Schakelbepalingen (Linking Provisions), Deventer: Kluwer, 1981, p. 11Google Scholar, in Advocatenblad (1981) p. 318 n. 162 and in Bestuurswetenschappen (1982) p. 99, by van der Ploeg, P.W. in “Van erfopvolging wanneer er natuurlijke kinderen aanwezig zijn” (Succession involving illegitimate children), NJB (1981) pp. 305-7Google Scholar, by Heuff, W. in “De gelijkstelling van natuurlijke met wettige kinderen” (Legitimate and illegitimate children made equal), WPNR (1981) pp. 293-5Google Scholar (with a comment by Van der Ploeg on pp. 310–11) and by Smoor, M.L. in “De achterstelling van natuurlijke kinderen ten opzichte van echtelijke kinderen en de Europese Conventie” (Discrimination between illegitimate and legitimate children and the European Convention), WPNR (1981) pp. 405–411.Google Scholar
131. Judgment of 13 June 1979, Publ. ECHR, Series A, Vol. 31, NJ (1980) No. 462, with a note by E.A. Alkema.
132. Article 8 see supra n. 94. Article 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
133. Art. 959 reads: “Each of the blood-relations and relations by marriage may appeal against the decision of the Local Court.”
134. The judgments of the European Court of Human Rights have also been observed in the decisions of the Amsterdam District Court of 20 February 1980 (NJ (1980) No. 494) and the District Court of The Hague of 5 November 1980 (Institute's Collection No. 1619). In both cases, Art. 32 of the National Health Act (incapacity to administer goods) was not applied on the grounds of incompatibility with Art. 6 (1) of the European Convention on Human Rights. Reference was made to the Judgment of the European Court in the Winter-werp Case, of 24 October 1979 (NJ (1980) No. 114 with a note by E.A. Alkema). Cf., Later, G.E.M., “De ministeriële richtlijnen voor de toepassing van de Krankzinnigenwet na de uitspraak in de zaak Winterwerp” (Ministerial guidelines on the application of the Mental Health Act after the decision in the Winterwerp Case), NJB (1980) pp. 825-31Google Scholar. For a reference to the Court's judgment in the Engel Case, cf., Courts Martial Appeals Court, 23 April 1980, supra pp. 361–3.
135. Note by J.H. van der Veen.
136. Note by J.R. Stellinga.
137. Note by J.M. Kan on p. 249.
138. Note by M.C. Burkens.
139. Note by R. Crince le Roy. Discussed by Stolker, C.J.J.M. in “De Vestigingsverordening en het verdragenrecht” (The Establishment Regulation and treaty law). Nederlands Juristenblad (1981) pp. 765-72Google Scholar, by Jansen, G. in “Groesbeekse vestigingsregeling voor woonkernen onder het mes” (Groesbeek establishment regulations for housing areas under examination), 5 Bestuursforum (1981) pp. 233–236Google Scholar, by Stellinga, J.R. in Tijdschrift voor Overheidsadministratie (1981) p. 305Google Scholar, and by Alkema, E.A. in Bestuurswetenschappen (1982) p. 109Google Scholar. Summarized in Nederlands Juristenblad (1981) p. 504Google Scholar and in AA (1982), Katern 3, p. 106.
140. Art. 14 see supra n. 132.
141. 213 UNTS p. 262; Trb. 1952 No. 80. Art. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
142. Judgment of 31 July 1979, 11 NYIL (1980) pp. 311–12.
143. See supra n. 122.
144. With note by G.E. Mulder.
145. With note by E. Myjer.
146. Discussed by Myjer, E. in “Berechting binnen een redelijke termijn” (Trial within a reasonable time), NJCM-Bulletin (1981) pp. 1–2Google Scholar, and by Nouwen, L.J.M. in “Binnen een redelijke termijn” (Within a reasonable time), Weekblad voor Fiscaal Recht (1981) pp. 881-6Google Scholar. Summarized in DD (1980) No. 376 and AA (1981) Katern I, pp. 19–20.
147. Art. 6 (1) see supra n. 49.
148. Art 14: “(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (c) To be tried without undue delay;… (5) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. …”
149. ILM (1967) p. 383; Trb. 1969 No. 99 p. 58.
150. In A.H.Th.V. v. Public Prosecutor, the Supreme Court decided that Article 14(5) of the International Covenant (see supra, n. 148) was not directly applicable. The regulation at issue was that laid down in Article 101 of the Act on the Organization of the Judiciary (Wet op de Rechterlijke Organisatie), which does notprovide for the possibility of reversing the decisions of Local Courts, where a Court has not given the last word to the accused. This rule was alleged to be inconsistent with the provisions of Article 6 of the European Convention and Article 14(5) of the International Covenant. The Supreme Court rejected this view, holding that there was no conflict with Article 14 (5) because this provision was not directly applicable, and that the European Convention included no directly applicable provision which granted the courts a wider jurisdiction than was granted to them by municipal law; in Article 13 the Convention merely imposed an obligation on Contracting States to ensure that their own legislation provided for effective remedies in the cases referred to (Judgment of 14 April 1981, NJ (1981) No. 401 with a note by Th.W. van Veen. Discussed by Myjer, E. in NJCM-Bulletin (1981) p. 315Google Scholar and by Alkema, E.A. in Bestuurswetenschappen (1982) p. 99Google Scholar. Summarized in DD (1981) No. 289). For the direct effect of Article 26 of the International Covenant, cf., supra pp. 361–4.
151. The sixth finding of the Court of Appeal was: “that the obligation imposed on the Contracting Parties in Article 14 (3)(c) of the International Covenant may be taken to have been discharged by the Netherlands by way of Article 36 of the Code of Criminal Procedure”.
152. That violation of Article 6 (1) of the European Convention can lead to the inadmissibility of a charge was expressly stated by the Supreme Court in Public Prosecutor v. C.J.G. (Judgment of 18 November 1980, NJ (1981) No. 118 with a note by Th.W. van Veen; discussed by E. Myjer in AA (1981) p. 310 and NJCM-Bulletin (1981) pp. 28–9. Summarized in DD (1981) No. 65). This is in line with the view expressed in J.A.J. v. Public Prosecutor, that testing for compatibility with Article 14 (3)(c) of the International Covenant should be no different from testing for compatibility with Article 6 (1) of the European Convention (Judgment of 4 November 1980, NJ (1981) No. 117 with a note by Th.W. van Veen. Discussed by E. Myjer in AA (1981) p. 310 and NJCM-Bulletin (1981) p. 28. Summarized in DD (1981) No. 44). The Solicitor-General considered, unlike the Supreme Court, that the International Covenant was not applicable in this last case; the delay at issue in this case ended on 16 February 1979, when the International Covenant had not yet entered into force (11 March 1979). In his view, the Covenant did not have retrospective effect. But cf., 12 NYIL (1981) pp. 331–2 and note 92.
153. The Supreme Court took a similar view in L.v.L. v. Public Prosecutor (Judgment of 14 October 1980, NJ (1980) No. 92 with a note by Th.W. van Veen. Discussed by E. Myjer in AA (1981) pp. 309–10 and NJCM-Bulletin (1981) pp. 27–8 and by Alkema, E.A. in Bestuurswetenschappen (1982) p. 104Google Scholar. Summarized in DD (1981) No. 19, MRT (1981) pp. 326–8 and RMT (1981) pp. 307–8). For previous cases on this subject, cf., 11 NYIL (1980) pp. 301–2. As regards “reasonable time” with respect to extradition cases, see supra n. 53–5.
154. Note by the Editors.
155. For these certificates of identity, cf. Maas Geesteranus, G.W., “The Netherlands and the Status of Diplomatic Consular and International Officials”, in International Law in the Netherlands Vol. III (Alphen aan den Rijn, Dobbs Ferry, 1980) pp. 251-2.Google Scholar
156. According to the Editors of Rechtspraak Vreemdelingenrecht, the guideline appears in part G-3, p. 4 of the Aliens circular, which is a ‘comprehensive collection of guidelines issued by the Minister of Justice to the Aliens Police in the Dutch municipalities’; it is not available for the public, cf., A.H.J. Swart, op.cit., supra n. 7 p. 82.
Since the entry into force of the new Employment of Foreign Workers Act on 1 November 1979, this category of aliens can rely on the provision of Art. 3(2)(4), that a “declaration” shall be issued by the Minister of Social Affairs to aliens who have been engaged in legitimate gainful employment in the Netherlands for an uninterrupted period of three years, provided they do not subsequently establish their main residence outside the Netherlands. Aliens possessing such a declaration do not need a work permit within the meaning of the Act. Cf. 10 NYIL (1979) p. 431–2 and 11 NYIL (1980) p. 283.
157. Cf., Rousseau, Ch., “Chronique des faits internationaux”, RGDIP (1980), p. 665.Google Scholar
158. The accused, who lived in the USA, had been detained since 19 June 1980, when he had been extradited to the Netherlands. On 5 June 1981, he presented a claim to the Hague District Court for Df1. 2, 700, 000 worth of damages. The Court dismissed the claim (Judgment of 30 September 1981). The Court of Appeal of The Hague, however, awarded the accused Df1. 110, 811 (Judgment of 3 April 1982).
159. 331 UNTS p. 217; Trb. 1955 No. 45. Art. 2: “(1) The term “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show, the acting form of which is fixed in writing or otherwise; musical compositions with or without words; cinematographic works and works produced by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works and works produced by a process analogous to photography; works of applied art; illustrations, geographical charts, plans, sketches and plastic works relative to geography, topography, architecture or science, …
(5) It shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in other countries of the Union only to such protection as shall be accorded to designs and models in such countries”.
160. Trb. 1972 No. 157.
161. Trb. 1966 No. 292.
162. Art. 10: “(1) For the purposes of this Act, the term literary, scientific or artistic works shall include (1) … (10) works of applied art….”
163. Art. 4: “(1) Authors who are nationals of any of the countries of the Union shall enjoy in countries other than the country of origin of the work, for their works, whether unpublished or first published in a country of the Union, the rights which their respective laws do now or may hereafter giant to their nationals, as well as the rights specially granted by this Convention.
(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed”.
164. 1 LNTS p. 217. Art. 2: “The expression “literary and artistic works” shall include any production in the literary, scientific or artistic domain, whatever may be the mode or form of its reproduction, such as books, pamphlets, and other writings; dramatic or dramaticomusical works, choreographic works and entertainments in dumb show, the acting form of which is fixed in writing or otherwise; musical compositions with or without words; works of drawing, painting, architecture, sculpture, engraving, and lithography; illustrations, geographical charts; plans, sketches and plastic works relative to geography, topography, architecture of science.
…
Works of art applied to industrial purposes shall be protected so far as the domestic legislation of each country allows.”
165. Art. 2: “(5) Il est réservé aux législations des Pays de l'Union de régler le champ d'application des lois concernant les oeuvres des arts appliqués et les dessins et modèles industriels, ainsi que les conditions de protection de ces oeuvres, dessins et modèles. Pour les oeuvres protégés uniquement comme dessins et modèles dans le Pays d'origine, il ne peut être réclamé dans les autres Pays de l'Union que la protection accordée aux dessins et modèles dans ces Pays”.
Cf. also supra n. 159.
166. Art. 2: “(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works”.
167. With a comment by the Editors.
168. Note by H.P. Vonhögen. Discussed by Mendes, H.F. in “De juridische positie van de Surinamer” (The legal position of the Surinamese), AA (1981) p. 639 n. 29.Google Scholar
169. Article 6 (1): “Each of the Contracting Parties shall grant permission to reside in its territory for the purposes of education to any person who can show that he has registered with an educational institution, and that the costs of subsistence and education during the period in which education is to be received are covered.”
170. Bijl.Hand. II 1975/76–14048 No. 2.
171. Note by J.C. Schultz. Cf. also, van der Ploeg, P.W., “Het Haags Huwelijksgoederenverdrag van 1905 en het Overgangsrecht” (The 1905 Hague Convention on Matrimonial Property and Transitory Law), WPNR (1981) pp. 133-40.Google Scholar
172. De Martens NRG, 3rd series, Vol. VI, p. 480; Stb. 1912 No. 285. For the text of Art. 2, see under Held.
173. Trb. 1977 No. 59.
174. Cf., Supreme Court, 10 December 1976, NJ (1977) No. 275, 6 NILR (1977) p. 483.
175. Note by Th. W. van Veen.
176. Note by W.H. Vermeer. Summarized in DD (1981) No. 9, discussed by van den Bosch, Th.W. and Baron Bentinck, M.R.O. in “Overtredingen van Art. 26 Wegenverkeerswet in het buitenhnd gepleegd” [Infringements abroad of Art. 26 Dutch Road Traffic Act], VR (1980) p. 257Google Scholar et seq. and by Clarenbeek, Th. J. in “Door militairen buiten Nederland gepleegde straf-bare feiten” [Offences committed by Dutch service-men abroad], MRT (1981) pp. 265-91, at pp. 282-3.Google Scholar
177. Article 26 (2): “The driver of a vehicle is forbidden to drive it or cause it to be driven after consuming such a quantity of alcohol that the proportion of alcohol in his blood appears, after testing, to be higher than 0.5 milligramme per millilitre of blood”.
178. Trb. 1979 No. 143. Art. XI (5) reads: “… Any act of investigation undertaken in either State in accordance with the rules there in force ‥ has in the other State the legal effect it would have had if undertaken according to the law of that State.”
179. Royal Decree of 9 October 1974, Stb. 1974 No. 596. The Courts Martial Appeals Court formulated the purposes of Art. 5 as follows: to establish in the police report that the blood which has been tested does come from the accused, and to protect the medical practitioner.
180. Cf., the cases mentioned in 7 NYIL (1976) pp. 341–2, 9 NYIL (1978) p. 322 and 10 NYIL (1979) p. 502.
181. Note by W.H. Vermeer.
182. Stb. 1964 No. 9. Art. 129 makes punishable, inter alia, failure to discharge one's duties as a sentry.
183. MET (1980) p. 377. For a similar case, see 11 NYIL (1980) p. 317. On the jurisdictional powers of the Army Mobile Court Martial Abroad at Haris (Lebanon), see also Siekmann, R.C.R., “De berechting van wachtdelicten in Libanon” (Trial of guard offences in Libanon) MRT (1980) pp. 201-5Google Scholar and “The Basis in International Law for the Trial of Members of the Dutch Unifil Contingent in the Lebanon”, 28 NILR (1981) pp. 333-9Google Scholar. The existence of investigative powers in Lebanon for the Dutch Military Police may be gathered from a judgment of the Arnhem Court Martial of 25 June 1980, in which a Dutch serviceman who had attempted to join Major Haddad's army in South-Lebanon was sentenced to one month's detention for desertion in time of peace. The evidence produced included a Military Police report drawn up at Haris. The conviction did not result in the loss of Dutch nationality (Institute's Collection No. 1597).
184. MRT (1980) p. 379.
185. Dutch servicemen are now tried at first instance in the Netherlands again, probably because of uncertainty as to the existence of Dutch jurisdiction in Lebanon. Cf., Judgment of Court Martial of Arnhem (14 October 1981) in which J.L.B., a member of the UNIFIL Contingent in Lebanon was found guilty of infringement of the Fire-arms Act. The Court rejected a defence based on the territoriality of this Act (MRT (1981) p. 194, with a note by W.H. Vermeer; comment by Th.J. Clarenbeek, op.cit., n. 176, p. 289, cf. also Courts Martial Appeals Court, 5 March 1975, 7 NYIL (1976) p. 340).
186. Note by W.H. Vermeer.
187. 199 UNTS p. 67; Trb. 1951 No. 114.
188. 481 UNTS p. 262; Trb. 1960 No. 37.
189. 125 UNTS p. 3; Trb. 1951 No. 81.
190. MRT (1980) p. 369.
191. Article 57 (3): “3. Unless otherwise provided in the present Agreement, German traffic regulations shall apply to a force, a civilian component, their members and dependents”.
192. MRT (1980) p. 371.
193. Article 1: “The Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, signed at London on 19 June 1951 (hereinafter, referred to as the “NATO Status of Forces Agreement”), shall, as regards the rights and obligations of the forces of the Kingdom of Belgium, Canada, the French Republic, The Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the United States of America in the territory of the Federal Republic of Germany (hereinafter referred to as “the Federal Republic”), be supplemented by the provisions of the present Supplementary Agreement”.
194. Discussed by H. Meijers and R.C.R. Siekmann in “The Magda Maria and customary law at sea. A case-note”, supra, p. 143 and by Dekker, I.F. and Schrijver, N.J. in “De Magda Maria (Radio Paradise)”, AA (1982) Katern 3, p. 121.Google Scholar
195. 450 UNTS p. 82; Trb. 1959 No. 124. Art. 6:
“1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.”
196. Art 22:
“1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:
(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.”
197. A/CONF. 62/C.2/L.54.
198. A/CONF. 62/L.78. For the text see under Held.
199. For a detailed description of the events preceding the complaint, see H. Meijers and R.C.R. Siekmann, op. cit., supra n. 194 pp. 143–5.
200. Stb. 1904 No. 7, most recently amended by the Act of 23 January 1974, Stb. 1974 No. 25. Cf., 5 NYIL (1974) pp. 356–7. Art. 3 septies:
“1. It is forbidden:
a. to use a radiotransmitter for the purpose of broadcasting verbal, tonal or visual programmes, for the benefit of the public, from a ship or aircraft outside any national territory;
b. to operate a radiotiansmitter for the aforementioned purposes;
c. to make available, or to install a radiotransmittei in the knowledge that it is to be used for the aforementioned purposes;
d. to make available a ship oi aircraft in the knowledge that it is to be used for the aforementioned purposes.
2. It is forbidden to co-operate wilfully with an infringement of the aforementioned prohibitions by rendering assistance or providing opportunity, means, or information. The following shall in any case be deemed to be acts of co-operation:
a. making available material in behalf of the ship or aircraft or the transmitter-equipment;
b. the maintenance or repair of the ship or aircraft or the transmitter-equipment;
c. provisioning of the ship or aircraft;
d. conveying of persons and goods to or from the ship or aircraft, or making available the means for such conveyance;
e. making programmes or parts thereof, for the purpose of broadcasting;
f. commissioning the broadcasting of programmes or parts thereof, or mediating in obtaining such commissions.
3. Acts committed in case of emergency for the purpose of rendering assistance to the ship or aircraft or saving human lives are excepted from paragraph 2.
4. For the purposes of this Article a ship or aircraft includes any other floating or airborne object.”
201. Art. 552a: “(1) Interested parties may lodge a written complaint relating to seizure, use of seized property, failure to order its return, inspection or use of information within the jneaning of Articles 100, 101 and 114, attachment of property susceptible of confiscation or continuation of such attachment. (2) As early as possible, but not later than three years after seizure of property or inspection of information, the complaint shall be lodged with the Registry of the Court … before which proceedings are, or were last instituted, (3) If proceedings have not, or not yet been instituted, the complaint shall, within the time-limit laid down in the previous section, be lodged with the Registry of the Court within whose district seizure or inspection took place. The District Court has jurisdiction to deal with the case, unless proceedings were instituted before the complaint could be dealt with. In that case, the Registrar shall refer the complaint to the Court mentioned in the previous section. (4) The Court shall deliver a reasoned judgment after the complainant has been enabled to be heard. (5) If the Court deems the complaint is founded, it shall issue the relevant order.”
202. Art. 27: “(1) Before the institution of criminal proceedings, any person in respect of whom facts or circumstances give rise to reasonable suspicions of guilt of any criminal offence, is regarded as a suspect [verdachte]. (2) Subsequently, the person against whom proceedings are instituted, is regarded as the accused [verdachte].” N.B. the use of the same word [verdachte] in the Dutch system to describe persons usually referred to by different terms in the English language.
203. Art. 20 (4): “The penal law of the Netherlands is applicable to any Dutch national who commits an offence as defined in paragraphs 1 (d) and 3 (e) [i.e. violation of the newly intrdduced prohibitions in Art. 3 septies] on board a vessel, aircraft, to other floating or air born object any national territory”.
204. Art. 20 (6): “The offences made punishable in, or by virtue of this Act, are regarded as infringements [overtredingen], except those made punishable under the first section of this Article, which are regarded as crimes [misdrijven].”
205. Art. 539 a: “(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.”
206. Para. 422 reads: Par. 1. (1) “The establishment and use of broadcasting stations (sound broadcasting and television broadcasting stations) on board ships, aircraft or any other floating or airborne objects outside national territories is prohibited.”
Para. 962: “The operation of a broadcasting service (see No. 28) by mobile stations at sea and over the sea is prohibited.”
207. Art. 82: “The provisions of the Convention are completed by the following administrative Regulations:
– Telegraph Regulations
– Telephone Regulations
– Radiocommunication Regulations
– Additional Radiocommunication Regulations.”
208. On 16 August 1962 the “Lucky Star” was seized and taken into a Danish port pursuant to an order of the Criminal Court of Lyngby of 15 August. Cf. ILM (1963) p. 343.
209. Art. 118: “(1) As soon as the interests of criminal procedure no longer bar the return of seized property, the Public Prosecutor shall order it to be returned by the custodian to the person from whom it has been seized. (2) If this person admits before the Public Prosecutor or one of his deputies to having deprived a particular person of this property through a criminal offence, or states that he has no objection to return of the property to a particular person, then the Public Prosecutor may order the property to be returned to that person. (3) In cases other than those referred to in the previous section, the Public Prosecutor may order the property to be returned to a person other than the person from whom it was seized unless the latter has lodged a complaint concerning such a return within two weeks of the Public Prosecutor in suing a notice of his intention to effect such a return or when such a complaint has been declared unfounded.
210. Art. 94: “All property which may serve to reveal the truth, or is susceptible of confiscation or withdrawal from circulation, is susceptible of seizure”.
211. Art. 33a: “The following property is susceptible of confiscation:
(a) property and claims belonging to the convicted person which have been wholly or largely obtained by means of, or from the proceeds of criminal offences;
(b) property in respect of which the offence has been committed;
(c) property by means of which the offence has been committed or prepared;
(d) property by means of which the investigation of the offence has been obstructed;
(e) property made or destined for the purpose of committing the offence, to the extent that property mentioned under (b)-(e) belonged to the convicted person at the time the offence was committed, or to a person through whose intent or fault it was in the wrong hands, or to a person who has no known residence in the Netherlands”.
212. Note by P. van Dijk. Summarized in WRvS (1980) No. 1.270.
213. Stb. 1975 No. 352; 7 NYIL (1976) p. 372. Art. 3: “(1) It is prohibited to (a) discharge, or (b) take [substances] aboard a vessel or aircraft with the aim of discharging, or (c) deliver with the aim of discharging, any waste, pollutant or noxious substances indicated by Royal Decree. (2) Para. 1 does not apply to substances which constitute no more than a trace in a mixture with other substances and which have not been added to these other substances specifically for the purposes of discharge.”
214. Trb. 1973 No. 172; ILM (1972) p. 1291.
215. Trb. 1972 No. 62; ILM (1972) p. 262. Art. 9: “If a Contracting Party in an emergency considers that a substance listed in Annex I to this Convention cannot be disposed of on land without unacceptable danger or damage, the Contracting Party concerned shall forthwith consult the Commission. The Commission shall recommend methods of storage or the most satisfactory means of destruction or disposal under the prevailing circumstances. The Contracting Party shall inform the Commission of the steps adopted in pursuance of its recommendation. The Contracting Parties pledge themselves to assist one another in such situations.”
216. Art. 4: “It is prohibited to discharge or take aboard a vessel or aircraft with the aim of discharging, or deliver with the aim of discharging, any waste or pollutant or noxious substances other than those covered by Art. 3 (1) unless exemption is granted.”
217. Art. 16: “A Commission, made up of representatives of each ot ffie Contracting Parties, is hereby established. The Commission shall meet at regular intervals and at any time when, due to special circumstances, it is so decided in accordance with the Rules of Procedure.”
218. The Minister's defence in this case was much the same as that set up in the case on which the Judicial Division of the Council of State delivered judgment on 8 May 1979. See 11 NYIL (1980) pp. 320–1.
219. Mentioned in note in Rechtspraak Vreemdelingenrecht (1981) no. 101. Discussed by van Maanen, C.J.J. in “Het BBA en het internationaal privaatrecht” [The Extraordinary Decree on Labour Relations and private international law], WPNR (1981) p. 814.Google Scholar
220. Stb. 1945 No. F. 214. For the contents of Art. 6, see “Held”.
221. For this interpretation of Art. 6 BBA, cf., Supreme Court, 8 January 1971, NJ (1971) No. 129. Discussed by J.P. Verheul in NILR (1974) pp. 311–13.
222. In a similar case, W.D.W. v. Multimetal, the question arose as to whether Art. 3 of the 1964 North Sea Installations Act could play a part in this matter. Art. 3 reads: “Provision may be made by Decree (Algemene Maatregel van Bestuur) for any provision of Dutch statutory law to apply on and with respect to sea installations.” (Cf., Bouchez, L.J., “The Netherlands and its Jurisdiction over the Continental Shelf” in International Law in the Netherlands (Alphen aan den Rijn, Dobbs Ferry N.Y., 1978) Vol. I pp. 311-12Google Scholar). In Multimetal's view, Dutch labour law had not been declared applicable in this way, so that the BBA was not applicable. The Amsterdam Local Court contested this view. Art. 3 in no way implied that all statutory provisions which had not been so designated would not apply to drilling rigs. “It only opened the possibility of statutory provisions of a territorially limited scope being extended to include such installations on the continental shelf – outside Dutch territory – as are reffered to in that Article”. Article 6 BBA did not have such a limited scope, and thus did not belong to the provisions referred to in Art. 3 of the Act. The Local Court held Art. 6 BBA to be applicable on the grounds that there was sufficient evidence that the labour relationship in question involved the interests of the Dutch labour market (Judgment of 25 August 1977). The Amsterdam District Court shared this view in a decision of 17 October 1979.
223. On 1 May 1981, the Amsterdam Court of Appeal reversed the judgment of the District Court of Haarlem. The Court found the case could not be heard in summary proceedings because the plaintiffs' claim did not involve urgent interests, and the claims were too vague. The Court also referred to the fact that the question at issue had already been brought before the judge in ordinary proceedings in the similar case of CM. v. Universal Goken B.V., when the Haarlem Local Court, sitting at Hoofddorp, held Article 6 BBA to be inapplicable in view of V.'s personal circumstances and the contents of the contract of employment (Judgement of 13 March 1980, De Praktijkgids (1980) No. 1502). V.'s appeal to the Haarlem District Court was still pending when the Court of Appeal delivered judgement.
224. Summarized in WRvS (1981) No. 1.94.
225. Cf. the chart on p. 397 and in the annex to the Royal Decree of 15 April 1968, Stb. 1968 No. 616.
226. Stb. 1965 No. 428. For text of Art. 13, see Held.
227. Stb. 1967 No. 158.
228. For text of Art. 12, see Held.
229. 499 UNTS p. 312; Trb. 1959 No. 126. The relevant parts of Art. 5 read: “(1). The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication. … (6) Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized jea lanes essential to international navigation.”
230. For text of Articles 65 and 66 see supra n. 45.
231. Published in Stc. 1979 No. 231.
232. Published in Stc. 1980 No. 110.
233. Published in Stc. 1981 No. 36.
234. Cf., on Dutch offshore mining legislation: L.J. Bouchez, op.cit., supra n. 222 at pp. 298–307.
235. Trb. 1969 No. 101. Art. 1: “This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal…”
236. 509 UNTS p. 1; Trb. 1960 No. 69.
237. Art. 5: “Any defendant domiciled in a Contracting State may, in another Contracting State, be sued in … (3) the Court of the place where the tortrous act occurred in matters of tort or quasi-tort.”
238. Cf., 10 NYIL (1979) p. 513.
239. RvdW (1980) No. 5, S & S (1980) No. 25. Summarized in ELD (1981) pp. 42, 65–6.
240. Case 814/79, ECR (1980) p. 3807, S & S (1981) No. 46. Summarized and discussed by J.P. Verheul in 28 NILR (1981) p. 68 and in WPNR (1981) pp. 784–5, and by Rousseau, Ch. in “Chronique des fails internationaux”, RGDIP (1981) p. 535.Google Scholar
241. Cf. Riphagen, W. in “Some reflections on functional sovereignty”, 6 NYIL (1975) pp. 121–65 at pp. 146-8Google Scholar, and Bouchez, L.J., “The Netherlands and the Law of Internatiohal Rivers” in International Law in the Netherlands (Alphen aan den Rijn, Dobbs Ferry, 1978) Vol. I, pp. 280-6Google Scholar (with charts of the area).
242. With a note by Th.W. van Veen. Summarized in DD (1981) No. 180. Mentioned by Alkema, E.A. in Bestuurswetenschappen (1982) p. 104Google Scholar and by Rousseau, Ch., “Chionique des faits intemationaux”, 85 RGDIP (1981) p. 195.Google Scholar
243. Article 6 (1) see supra n. 49.
244. For text see infra n. 249.
245. De Martens NRG, 3rd series, Vol. III p. 486; Stb. 1910 No. 73; Trb. 1966 No. 282. Article 42: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
246. Article 3 see supra n. 107.
247. Judgment of 22 May 1979, 11 NYIL (1980) pp. 334–6.
248. Stb. 1943 No. D 61 and Stb. 1947 No. H 233. Article 27a: “1. Any person, who during the present war, in military, state or public service of oi with the enemy, commits a war crime or a crime against humanity as defined in Ait. 6(b) and (c) of the Charter annexed to the London Agreement of 8 August 1945, shall be liable to the penalty fixed for such crime, provided that the crime committed also contains the elements of a criminal offence under Dutch Law.”
249. 82 UNTS p. 279; Stb. 1946 No. G 5. Article 6: “The Tribunal established by the Agreement referred to in Art. 1 thereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) …; (b) War crimes: namely, violations of the law or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c)Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated …”
250. 12 NYIL (1981) p. 342.
251. Cf., 12 NYIL (1981) p. 344 (“Undertaking by Minister Donker”).
252. Cf., 12 NYIL (1981) p. 345 (”Dealings of the Schöffer Commission”).
253. Cf., 12 NYIL (1981) p. 347 (“Framework of the primary charge”).
254. Law No. 13. “Judicial powers in the reserved field”, Official Gazette of the Allied High Commission for Germany (1949) p. 54.Google Scholar
255. The Supreme Court here refers to the following findings of the judgment of the District Court: “… Moreover, and without prejudice to the findings on the evidence, the Court will now expressly consider what the accused repeatedly emphasized: that it was a more or less routine ‘pogrom’, given the local folklore and the character of the local population. This alledgedly followed from the following: (a) the Germans embarked upon more or less large-scale murders in that area only after July 1941; (b) Dr. Schöngarth”s Kommando, in particular, had a mainly administrative, organizing task and was even less likely to commit murder than other Einsatzkommandos; (c) exhumation reports refer to injuries (blows on the head) which could reasonably fit into the picture of a pogrom; (d) the victims are the typical victims of pogroms.
At the hearing in court, however, it appeared that especially Dr. Schöngarth's Einsatzkommando participated fully in the murdering, which it started on a considerable scale very early in July 1941; that the victims fit into the picture of a German action, since they represented the three classes of enemies: Jews, Polish nationalists and communists, rather than into that of a ‘pogrom’ where it is only the Jewish population that will be attacked; that the witnesses speak of shooting rather than beating to death; and that also what remains of the skulls suggests shooting since in quite a number of cases the skulls have bullet holes. Finally, the picture emerging from the evidence of this massacre is not one of a fierce ‘durcheinander’ in the nature of a pogrom, but rather one of deliberate action in the nature of an execution in time and on grounds of war …”
256. I.e., Art. 16 (1)(1) of the Special Criminal Courts Decree. In this Article, “to impose a punishment or measure that cannot be deemed to correspond to the severity of the crime, the circumstances under which it has been committed or the person or personal circumstances of the offender”, is regarded as a misapplication of the law.
257. On 11 December 1981 the European Commission of Human Rights declared the application of P.N.M. v. the Netherlands inadmissible (Application No. 9433/81, NJCM-Bulletin (1982) p. 117 with note by E. Myjer and NJ (1982) No. 142 with note by E.A. Alkema).
258. Note by W.H. Vermeer. Summarized in DD (1981) No. 310, and AA (1982) Katern No. 2 p. 62.
259. The duties of the SITE-wacht include the surveillance of locations where nuclear weapons may be stationed.
260. 82 UNTS p. 279; Stb. 1945 No. G. 5.
261. 78 UNTS p. 277; Trb. 1960 No. 32.
262. 75 UNTS p. 287; Trb. 1951 No. 75.
263. De Martens NRG, 3rd series, Vol. III, p. 486; Stb. 1910 No. 73; Trb. 1966 No. 282.
264. Cf., Eerste gedeelte van de Zestiende Zitting van de Algemene Vergadering der Verenigde Naties (First part of the Sixteenth Session of the UN General Assembly), publication of the Ministry of Foreign Affairs, Vol. 72 (1962) pp. 286–287.Google Scholar
265. Cf., Zevenentwintigste Zitting van de Algemene Vergadering van de Verenigde Naties (Twenty-seventh Session of the UN General Assembly), publication of the Ministry of Foreign Affairs, Vol. 102 (1973) p. 251.Google Scholar
266. Art. 66 see supra n. 45.
267. Art. 114 makes wilful disobedience punishable.
268. Art. I: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
Art. II: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
269. Art. 3: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …”
270. Art. 22: “The right of belligerents to adopt means of injuring the enemy is not unlimited.”
Art. 23: “In addition to the prohibitions provided by special Conventions, it is especially forbidden: … (e) to employ arms, projectiles, or material calculated to cause unnecessary suffering; …”
271. Solicitor-General Biegman-Hartogh assumed in her conclusion that the Court of Appeal had drawn a distinction between the actual use of nuclear weapons, which is prohibited in the Conventions referred to, and “use” in the sense of merely having them available, which is not inconsistent with these Conventions.
272. With note by B. Wachter. Summarized and discussed by Du Perron, A.E. in Air Law (1981) pp. 191-5Google Scholar, by Gold, J. in The Fund Agreement in the Courts: Volume II (Washington, DC.: IMF, 1982) pp. 451-4Google Scholar and by I.F. Dekker and N.J. Schrijver in AA (1982) Katern 3 pp. 1234.
273. Article 740a provides, inter alia, that the owner of a sea-going ship may limit his liability in respect of claims arising from damage to property caused by the act of a person for whom the owner is responsible. Para, (e) of the Art. mentions, in particular, damage to harbour works and navigable waterways.
274. Article 740d: “(1) The aggregate amounts to which the liability referred to in Art. 740a in respect of one or more of the persons named therein can be limited, shall be, for each occurrence giving rise to liability: (a) Where the occurrence has only given rise to property claims, an aggregate amount of 1000 francs for each ton of the ship's tonnage; … (e) in calculating the tonnage of a ship for the purposes of para. 1, in the case of mechanically propelled ships there shall be taken the net tonnage with the addition of the amount deducted from the gross tonnage on account of the engine room space … (4) The franc mentioned in para. 1 is the franc fixed at 65.5 milligrams of gold of millesimal fineness 900. This franc shall be converted into Netherlands currency in accordance with the daily price …”
275. Trb. 1958 No. 46.
276. Cf., 4 NYIL (1973) pp. 408–12.
277. Cf., 11 NYIL (1980) p. 346 n. 174 and ETL (1981) p. 369.
278. S & S (1980) No. 89.
279. Cf., UNJY (1978) pp. 100–1.
280. Stb. 1978 No. 404.
281. Stb. 1981 No. 295, see supra p. 317
282. Cf., section 3 of the detailed statement of Solicitor-General Haak to the judgment of the Supreme Court, in S & S and NJ.
283. ILM (1977) p. 606.
284. With notes by G.J. Scholten and E.A. Alkema. Discussed by Giltay Veth, N.J.P. in 36 Sociaal Maandblod Arbeid (1981) pp. 21–38.Google Scholar
285. Article 4: “(1) No one shall be held in slavery or servitude. (2) No one shall be required to perform forced or compulsory labour.…”
286. 359 UNTS p. 89; Trb. 1962 No. 3. Article 1: “With a view to ensuring the effective exercise of the right to work, the Contracting Parties undertake: (1) to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; (2) to protect effectively the right of the worker to earn his living in an occupation freely entered upon; (3) to establish or maintain free employment services for all workers; (4) to provide or promote appropriate vocational guidance, training and rehabilition.”
287. 569 UNTS p. 65; Trb. 1965 No. 11. Article 1: “(1) With a view to stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment, each Member shall declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. (2) The said policy shall aim at ensuring that (a) … (b) … (c) there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin.”
288. Article 6 (1): “The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”
289. A similar view was taken by the District Court of The Hague in Industriebond FNV v. the State of the Netherlands, in which the plaintiff instituted summary proceedings to contest the lawfulness of a partial wage control measure for 1981, relying on Art. 8 of the International Covenant on Economic, Social and Cultural Rights, Art. 6 of the European Social Charter and the ILO Convention concerning freedom of association and protection of the right to organize, of 1948 (No. 87). The action failed because none of the treaty provisions referred to had direct effect (Judgment of 19 December 1980, Institute's Collection No. 1616).