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Netherlands judicial decisions involving questions of public international law, 1984–1985
Published online by Cambridge University Press: 07 July 2009
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References
1. Notes of W. Elzinga and A.W. Heringa.
2. Notes of E.A. Alkema and E.A.A. Luijten. Summarised in NJB (1984) p. 1277. Discussed by Rood-de Boer, M. in ‘Een schok in het familie- en jeugdrecht’ (A shock in family and young persons law), NJB (1984) pp. 1277–1282Google Scholar, by Jansen, I. in ‘Ouderlijke macht na echtscheiding’ (Parental power after divorce), Tijdschrift voor familie- en jeugdrecht (1984) pp. 137–146Google Scholar, by Hammerstein-Schoonderwoerd, W.C.E. in ‘Ouderlijk gezag na echtscheiding’ (Parental authority after divorce), WPNR (1984) pp. 621–625Google Scholar, by Doek, J.E. in ‘Een schok in het familie- en jeugdrecht: iets over scheuren en barsten’ (A shock in family and young persons law: something about the flaws and cracks), NJB (1985) pp. 213–217Google Scholar (with postscript by M. Rood-de Boer on pp. 217–218) and by de Vet, M.P.J. in ‘Gezagsvoorziening na (echt)scheiding in Europees perspectief’ (Custody after separation and divorce in an European perspective), in NJB (1985) pp. 218–222.Google Scholar
3. 213 UNTS 1951 p. 221; Trb. 1951 No. 154. Art. 8 reads as follows:
‘(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’.
4. Art. 1:161 reads as follows: ‘(1) In the decree of divorce or in a later decision, the court shall appoint one of the parents as guardian of each minor child of the spouses and shall also appoint a supervisory guardian. (2) A parent who does not have parental authority shall not be eligible for such appointment. (3) If the decision referred to in paragraph 1 did not relate to all the children of the spouses, the court shall supplement such decision at the request of one or both of the parents or of the Child Care and Protection Board or ex officio. (4) Until such time as the guardianship of a guardian appointed in accordance with this article has commenced, authority over the children shall remain vested in the person in whom it was vested during the proceedings, who shall have the same powers and responsibilities as he then had. (5) The court may, at the request of one or both of the parents, make an arrangement regarding access between the child and the parent who does not or will not have custody of the child. If no such provision is made in the divorce decree or in a later decision as referred to in paragraph 1, it may be made subsequently by the juvenile court’.
5. Art. 94 reads as follows: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions’.
6. See supra n. 4.
7. ILM (1967) p. 360; Trb. 1969, No. 100, Art. 23(4) reads as follows: ‘(4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provisions shall be made for the necessary protection of any children’.
8. The Judicial Division of the Council of State took a different view in its judgment of 11 March 1982 in the case of U.C.C. v. the State Secretary for Justice. The Judicial Division tested the policy on family reunification by reference to Art. 23(4) of the International Covenant on Civil and Political Rights and even by reference to Art. 16 of the Universal Declaration of Human Rights, and considered that the policy was not in breach of these provisions (WRvS (1982) No. 2.153).
9. Note by P. Boeles.
10. Note by A.W. Heringa.
11. Note by W.C.L. van der Grinten.
12. Note by P.J. Boon; summarised in NJB (1984) p. 1200 (No. 164) and NIPR (1985) No. 480; partially recounted and discussed by H.U. Jessurun d'Oliveira in AA (1985) p. 209, and discussed by J. Hoens in De Nationale Ombudsman, Werkgroep Recht en Rassendiscriminatie (October 1984) p. 32 and by de Boer, J. in ‘Wat kan de rechter doen aan in de wet neergelegde discriminatie?’ (What can the courts do about discrimination contained in the law?), NJB (1984) pp. 1417–1420Google Scholar and idem‘Procederen wegens discriminatie’ (Suing on account of discrimination), Staatkundig Jaarboek (1985) pp. 73–92.Google Scholar
13. For the text of Art. 94 see supra n. 5.
14. Art. 26 reads as follows: ‘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’.
15. Art. 8 reads as follows: ‘An alien woman whose husband was a Dutch national at the celebration of the marriage, shall acquire Dutch nationality by giving notice of her wish to do so to the authority referred to in Art. 12a, if on the day of notice the marriage still subsists and the husband still has Dutch nationality’.
16. Art. 43 reads as follows: ‘(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’. For Art. 43, cf., Swart, A.H.J., ‘The Dutch Law on Aliens’, in International Law in the Netherlands, Vol. III (1980) p. 104.Google Scholar
17. Cf., Sik, Ko Swan, ‘The Netherlands and the Law Concerning Nationality’, in International Law in the Netherlands, Vol. III (1980) pp. 75–79Google Scholar. Cf., for the new Netherlands Nationality Act of 1984, 16 NYIL (1985) pp. 451–455.
18. Note by P. den Boer.
19. Note by E.A. Alkema, summarised in NJB (1984) p. 1374 (No. 58).
20. Trb. (1969) No. 99 p. 105.
21. Art. 67 reads as follows: ‘With due observance, whenever relevant, of Article 63, legislative, administrative and judicial powers may be conferred on international organizations by, or in virtue of, an agreement. With regard to decisions made by international organizations Articles 65 and 66 shall similarly apply’. In its judgment of 23 November 1984 (see below n. 26), the Supreme Court referred to Article 93 of the new Constitution. Cf., in respect of both provisions, Alkema, E.A., ‘Foreign Relations in the Netherlands Constitution of 1983’, 31 NILR (1984) pp. 332–335.CrossRefGoogle Scholar
22. Stb. (1945) No. F 321; Trb. (1979) No. 37.
23. Art. 12 reads as follows: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks’.
24. Art. 10 reads as follows: ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’.
25. As Procurator General Moltmaker remarked in his conclusion in the judgment, an appeal based on Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights would have been of no avail since these provisions relate only to civil and criminal cases and not, as in the present case, to matters of taxation (the conclusion is printed with the judgment of the court in NJ and BNB).
26. Procurator General Moltmaker stated in his conclusion that he, unlike the Supreme Court, considered the Universal Declaration to be binding. He came to this conclusion after extensive research in the literature and in Dutch case law (the conclusion is printed with the judgment in NJ and BNB). The Supreme Court reiterated its view several weeks later in the case of M.T. v. the State of the Netherlands (judgment of 23 November 1984, RvdW (1984) No. 200; Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) No. D 2 with note by Kruyt, A., Rechtspraak Vreemdelingenrecht (1984)Google Scholar No. 19, with note by P. Boeles, NJ (1985) No. 604 with note by E.A. Alkema, summarised in NJB (1984) p. 1427 (No. 200)). Advocate General Mok shared this view in his conclusion. The additional question whether the Universal Declaration could perhaps be treated as international customary law did not in his view have to be dealt with since provisions of international customary law were not regarded in the Netherlands as binding on all persons and a private individual could not therefore invoke them in proceedings against the administration (the conclusion is printed with the judgment in NJ and RV). Alkema observed in his note in NJ that it apparently made no difference to the Supreme Court whether review was asked of an act of parliament or, as in the case of M.T. v. the State, of policy (stay of the expulsion decision). The Judicial Division of the Council of State employed almost identical reasoning in its judgment of 14 February 1985 in the case of B.A. v. the Minister of Employment and Social Security in dismissing an appeal under Article 23(1) of the Universal Declaration (summarised in WRvS (1985) No. 2.49). For other rulings by the Judicial Division see, 10 NYIL (1979) p. 49 (not binding) and 13 NYIL (1983) p. 332, n. 27 (binding).
27. With note.
28. With note by F.W.G.M. van Brunschot.
29. Section 47(1) reads as follows: ‘Deductible gifts shall be gifts that are made by the taxpayer to religious, charitable, cultural and scientific institutions and institutions serving the common good and that are supported by written evidence’.
30. According to the Court of Appeal, the Liberation Fund of the Southern Africa Committee was intended to provide political and financial support to the liberation movements in southern Africa, which endeavoured to attain their objectives, inter alia, by other than peaceful means, and the principal objects of the Chile Committee (Netherlands) were the economic, political and cultural boycotting of Chile.
31. Cf., in this connection, Siekmann, R.C.R. in ‘De volkenrechtelijke toetsing van voorlichtingsprojekten over ontwikkelingssamenwerking vanwege hun subsidiëring door de Nederlandse overheid’ (Procedure of assessing, according to international law, projects for the dissemination of information on development co-operation on account of their subsidy from the Dutch Government), 36 Internationale Spectator (1982) pp. 330–340.Google Scholar
32. After the Inspector had stated at the hearing that he could after all accept X's submission, the Court of Appeal at 's-Hertogenbosch quashed the decision of the Inspector and acknowledged that the gifts were deductible. The Court of Appeal did not, therefore, have to make an explicit investigation as referred to by the Supreme Court (judgment of 25 May 1983).
33. In accordance with Art. 4(7) of the Code of Civil Procedure.
34. No appeal has been lodged against the judgment.
35. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1984–1985 which involved the admittance of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1986 (Bijl. Hand. II 1985/1986 — 19200 VI pp. 63–5).
36. Note by W.L.J. Voogt.
37. Note by G. Caarls.
38. Note by R. Fernhout and J.A. Hofman.
39. Note by P.W.C. Akkermans. Partially reproduced in WRvS (1984) No. 2.95.
40. Art. 18(3) reads: ‘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’.
Art. 27 reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’.
41. For the text of Art. 41(1)(c) see infra n. 46.
42. The President of Haarlem District Court held in his judgment in the case of M.B. v. the State of the Netherlands that the legislation on aliens did not compel the State to refuse admittance to the Netherlands to an imam who did not meet the requirement laid down in the Aliens Circular 1982, Chapter B.11.6.6., regarding possession of a temporary residence permit. In such a case the State was therefore obliged to investigate whether there were nevertheless grounds for permitting residence in the Netherlands and for dropping the requirement of the prior grant of a temporary residence permit. Since such grounds did exist, the President allowed the application of B., who was working as an imam in Haarlem, to the effect that the State should be prohibited from expelling him until a decision had been taken on his application for review of the refusal to grant him a residence permit. (Judgment of 31 May 1985, Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) p. 288Google Scholar, with note by D. Bomans, and KG (1985) No. 197).
43. Partially reproduced in WRvS (1984) No. 2.140.
44. Trb. (1975) No. 139.
45. Trb. (1981) No. 35. Point 4 reads as follows: ‘Surinamese nationals who are in the Netherlands prior to 25 November 1980 and who possess a valid visa, may apply for a residence permit and an employment permit during the validity of the visa, provided that they do so no later than 24 February 1981 and that they are found to have adequate means of support on the basis of actual employment and adequate housing.’
46. Art. 41 reads as follows: ‘Without prejudice to the other requirements imposed by law, aliens must, in order to gain entry to the Netherlands, be in possession of a valid passport which contains: (a) … (b) a valid travel visa, if they are coming to the Netherlands for a stay of not more than three months in the Benelux area or in the Netherlands; (c) a valid temporary residence permit, if they are coming to the Netherlands for a stay of more than three months in the Netherlands.’
47. See supra n. 46.
48. Cf., infra n. 100.
These Transitional Regulations apply to Surinamese employees who complied with the relevant requirements after 24 November 1980 but before 25 February 1981. If the application for a residence permit had been submitted on 25 February, the Transitional Regulations would not have applied. Judgment of the Council of State, Judicial Division of 23 January 1984 in the case of R.H.A. v. the State Secretary for Justice (Gids Vreemdelingenrecht No. D 25–30).
49. Trb. (1980) No. 152.
50. As regards the various visas, cf., Swart, A.H.J., ‘The Dutch Law on Aliens’, in International Law in the Netherlands, Vol. III (1980) pp. 83–84.Google Scholar
51. Discussed by C.A. Groenendijk in a note to the virtually identical case of H.C. v. the Minister of Employment and Social Security of 14 June 1984, Rechtspraak Vreemdelingenrecht (1984) No. 82.
52. 521 UNTS p. 199; Trb. (1964) No. 142.
53. Art. 8(2)(b) reads as follows: ‘If the application refers to an alien who has not previously been legally employed in an enterprise in the Netherlands, or who has, after having been so employed, moved his principal place of residence to outside the Netherlands, a permit may be refused (a) … (b) if the alien is a national of a State with which the Netherlands has concluded a recruitment agreement but has not been recruited in accordance with that agreement’.
Cf., 10 NYIL (1979) p. 432, and A.H.J. Swart, op.cit. n. 50, p. 106.
54. Pb. 3687/64; Trb. (1963) No. 184. For the text of Art. 12 see under Held.
55. Pb. L. 293 of 1972, p. 4 and Trb. (1971) No. 70. For the text of Art. 36 see under Held.
56. The Judicial Division first dismissed T'.s ground of appeal based on the 1980 Transitional Regulations for illegal foreign workers. The Division held that since the Transitional Regulations were intended to make provision for a very restricted exception, it was acceptable that they should be applied strictly. On the basis of such application, it transpired that T. had not satisfied the conditions under Art. 2 of the Regulations and that the applications should in other respects be tested by reference to the new Employment of Foreign Workers Act of 1978.
57. Groenendijk, op.cit. n. 51, summarises a number of judgments given in respect of applications for interlocutory injunctions by Presidents of District Courts, in which they too rejected claims based on the Agreement and Protocol. Cf., also 16 NYIL (1985) p. 480 n. 44.
58. Note by A.H.J. Swart.
58a. Note by R. Fernhout.
59. De Martens NRG, 2nd Series, Vol. 33 p. 41; Stb. (1898) No. 113. For the text of Art. 5(1) see under Held.
60. The text of the note reads as follows (translation of the French original):
‘The Embassy of the Kingdom of the Netherlands presents its compliments to the Ministry of Justice and, further to the Embassy's note No. 3682 of 12 March 1984 and to the aide-mémoire of 2 April 1984 relating thereto, has the honour to inform the Ministry as follows.
The Dutch nationals Y and X are suspected of having committed a number of very grave crimes, one or more of which do not, at first sight, appear to be included in the list of crimes and offences specified in Article 2 of the Treaty for the extradition of criminals of 24 December 1895 between the Republic of France and the Kingdom of the Netherlands.
Article 1(2) of the French Extradition Act of 1927 provides that the Act applies equally to points which are not regulated by extradition treaties concluded before 1927. Given the fact that under the terms of the French Act of 1927 all the offences for which the extradition of the two persons concerned has been requested appear to constitute grounds for their extradition, the Dutch authorities presume that it is legally possible to agree to the extradition on all heads.
Nevertheless, since the consent of the French Government to the extradition for the offences not listed in the 1895 Treaty may be made conditional on a promise of reciprocity by the Dutch Government, the Embassy has the honour to formulate hereby the requisite promise of reciprocity. It is true that Article 2(3) of the Dutch constitution provides that extradition may take place only pursuant to a treaty. Nevertheless, Article 5(1) of the Extradition Treaty of 1895 authorises the Dutch Government to consent (in accordance with the provisions of the Dutch Extradition Act) to the prosecution and trial in France of an extradited person for offences other than those for which his extradition was granted.
Under Article 12(2)(b) of the Dutch Extradition Act, the Dutch Government may equally give such consent for offences other than those for which extradition is compulsory under the 1895 Treaty. The above is subject to the condition that there are no obstacles to extradition such as the operation of the ne bis in idem rule or the military or political nature of an offence.
Consequently, if the French Government should ask the Dutch Government for the extradition of persons suspected of having committed in France the same offences of which the said Y and X are suspected in the Netherlands, the Dutch Government is prepared to give the consent referred to in Article 5(1) of the 1895 Treaty for offences not covered by Article 2 of the Treaty, which situation will consequently mean that the Dutch courts will not declare the extradition requested by France only partially admissible.
The Embassy would be extremely grateful to receive the reply of the Ministry of Justice as soon as possible.
The Embassy of the Kingdom of the Netherlands thanks the Ministry of Justice for its customary obligingness and takes this opportunity to renew to the Ministry the assurances of its highest consideration’.
61. The District Court in Paris declared the extradition request admissible for all offences, as did on appeal the Court of Appeal in Paris. However, after the Conseil d'Etat had ruled that the extradition request was admissible only for the offence of ‘threats in writing’, the Netherlands withdrew the extradition request in early December 1985. France thereupon decided to expel both Van H. and H. and place them under house arrest until a country had been found which would be willing to take them.
62. Note by A. Takkenberg.
63. 189 UNTS p. 137; Trb. (1961) No. 131, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. (1967) No. 76.
64. Cf., with respect to this criterion, 16 NYIL (1985) p. 494.
65. At 2.3 the President recorded that the State had undertaken not to expel the plaintiff (or to allow him to be expelled) to Afghanistan and that the State left undecided the question of whether the plaintiff was a refugee.
66. Published in Rondzending Subgroep Asielrecht (1984) No. X 6.
67. This is a reference to conclusion 15 (XXV) from 1979 on ‘Refugees without an asylum country’, Nieuwsbrief Asiel- en Vluchtelingenrecht (1985) pp. 373–374Google Scholar. The relevant passages from conclusion 15 read as follows: ‘(h) An effort should be made to resolve the problem of identifying the country responsible for examining an asylum request by the adoption of common criteria. In elaborating such criteria the following principles should be observed: (i) The criteria should make it possible to identify in a positive manner the country which is responsible for examining an asylum request and to whose authorities the asylum-seeker should have the possibility of addressing himself; (ii) The criteria should be of such a character as to avoid possible disagreement between States as to which of them should be responsible for examining an asylum request and should take into account the duration and nature of any sojourn of the asylum-seeker in other countries; (iii) The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account; (iv) Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State. Where, however, it appears that a person, before requesting asylum, already has a connexion or close link with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State; (v) The establishment of criteria should be accompanied by arrangements for regular consultation between concerned Governments for dealing with cases for which no solution has been found and for consultation with the Office of the United Nations High Commissioner for Refugees as appropriate; (vi) Agreements providing for the return by States of persons who have entered their territory from another contracting State in an unlawful manner should be applied in respect of asylum-seekers with due regard to their special situation’.
68. In the case of G.H.A. v. the State Secretary for Justice, the Judicial Division of the Council of State held that the Refugee Convention had been complied with if the treatment which the refugee received in the country of first asylum (in this case Sudan) met the requirements formulated in the Convention regarding equal treatment or at least equally favourable treatment. In this case the Division also held that the time spent by the refugee in Sudan was too long (3 months) to be able to say that he was still in transit (judgment of 1 November 1984, Gids Vreemdelingenrecht No. D 12–108, referred to in note in Rechtspraak Vreemdelingenrecht (1984) No. 8). Cf., with respect to the transit criterion the judgments referred to in 14 NYIL (1983) pp. 391–394 and footnotes 53–55.
69. Art. 8 reads: ‘The applicability of Articles 2–7 is subject to exceptions under international law’. Arts. 2–7 contain provisions on territorial and personal jurisdiction.
70. 500 UNTS p. 95; Trb. (1962) No. 101; Trb. (1984) No. 108 (notice of entry into force). The court used the Dutch translation.
71. Art. 32 reads: ‘(1) The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. (2) Waiver must always be express.’
72. Art. 1(e) reads: ‘For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: … (e) a “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;’
73. Art. 29 reads: ‘The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity’.
Art. 31 reads: ‘(1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State …’
74. Art. 39 reads: ‘(1) Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed’.
75. Art. 40 reads: ‘(1) If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return …’
76. C. appealed against this judgment to the Court of Appeal in Amsterdam. The Court of Appeal shared the view of the District Court that the case of the public prosecutions department was admissible, but quashed the judgment since it felt that a different burden of proof should have applied. The Court of Appeal then sentenced C. to nine years' imprisonment less the pre-trial detention, and ordered that the suitcases be impounded (judgment of 18 March 1985, Institute's Collection No. 2295).
77. Note by A.H.J. Swart, summarised in NJB (1985) p. 756, No. 105 and DD (1985) No. 354.
78. 8 ILM (1969) p. 679; Trb. (1972) No. 51. Art. 28 reads: ‘Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party’.
79. 359 UNTS p. 273; Trb. (1965) No. 9.
Art. 5 reads: ‘Extradition shall be granted, in accordance with the provisions of this Convention, for offences in connection with taxes, duties, customs and exchange only if the Contracting Parties have so decided in respect of any such offence or category of offences’.
80. The Agreement came into force on 30 January 1983, Trb. (1983) No. 13.
81. Trb. (1979) No. 142.
82. The Convention entered into force for the Netherlands on 9 May 1985 (Trb. (1985) No. 79).
83. Unlike the Supreme Court, Advocate General Leijten took the view in his conclusion that the new arrangement introduced by the 1979 Agreement applied only to facts (in this case final judgments) which occurred after the entry into force of the Agreement.
84. With note by A.H.J. Swart. Summarised in NJB (1985) p. 952, No. 175. Partially reproduced and discussed by Zwart, T. in ‘Aan de Amerikanen overgeleverd: uitlevering, ECRM en voorlopige maatregelen’ (Delivered to the Americans: extradition, the European Convention on Human Rights and interim measures), NJCM-Bulletin (1985) pp. 562–571.Google Scholar
85. 213 UNTS p. 221; Trb. (1951) No. 154.
86. 359 UNTS; Trb. (1965) No. 9.
87. Trb. (1980) No. 111.
88. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
Art. 8 reads: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence’.
Art. 14 reads: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.
89. Zwart, op.cit. n. 84, described the events that followed the judgment of the Supreme Court: ‘The State Secretary for Justice granted the request for extradition in a decision dated 1 July 1985. G. was arrested on 2 July at around 11.30 hrs. under Article 40 of the Extradition Act. Since the deprivation of liberty under Article 40 may not exceed 48 hours, the Government planned to put G. on an aircraft to the United States not later than about 11.30 hrs. on 4 July. On 2 July G!s lawyer lodged an application with the European Commission for Human Rights, requesting at the same time that the Netherlands should be urged not to send G. to the United States (i.e., as an interim measure pending further action by the Commission). On 3 July G'.s lawyer applied to the President of the District Court at The Hague for an interlocutory injunction restraining the State from extraditing or otherwise sending him to the United States until a decision had been taken on the application submitted to the Commission or until it was known whether the Commission would request the Netherlands to take interim measures and such request had actually been made. Subject to the decision of the court due to hear the full case (the District Court at Amsterdam), the President dismissed both applications. In a letter of 4 July the Commission, referring to Article 36 of its Rules of Procedure, informed the Dutch Government that it was in the interests of the parties and of the due process of law that G. should not be extradited to the United States before the Commission had had an opportunity to investigate the application during the hearing which was taking place at that very moment’.
The Netherlands nevertheless proceeded to extradite G. on 4 July.
90. The Supreme Court applied the principle of confidence in the relationship between an Extradition Treaty and the European Convention on Human Rights for the first time in its judgment of 27 March 1984, cf., 16 NYIL (1985) pp. 488–489. The Supreme Court applied the principle again in the case of S.D. v. the Public Prosecutor. The Supreme Court assumed that after D'.s extradition the Italian court would examine whether prosecution would involve a breach of Art. 6(1) of the European Convention (judgment of 28 May 1985, NJ (1985) No. 892).
In accordance with the judgment of 27 March 1984 referred to above, however, the Supreme Court did examine in the case of M.S. v. the Public Prosecutor the defence that if S. were extradited to Turkey he would not get a fair trial. The Supreme Court rejected this argument, however, since no concrete arguments were advanced to support the contention that the fair trial principle would be violated (judgment of 30 August 1985, NJ (1986) No. 144; DD (1986) No. 27).
91. Art. 2 reads: ‘(1) … (2) Extradition shall be granted in respect of an extraditable offense: (a) For prosecution, if the offense is punishable under the laws of both Contracting Parties by deprivation of liberty for a period exceeding one year; … (5) When extradition has been granted in respect of an extraditable offense, it may also be granted in respect of any other extraditable offense which would otherwise not be extraditable only by reason of the operation of paragraph 2’.
92. Art. 7 reads: ‘(1) When the offense for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offense, extradition may be refused unless the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed. (2) In special circumstances, having particular regard to the age, health or other personal condition of the person sought, the Executive Authority of the Requested State may refuse extradition if it has reason to believe that extradition will be incompatible with humanitarian considerations’.
93. G. had submitted that the District Court had not provided any reasons whatsoever for its opinion to the Minister. The Court should have done so in view of the provisions of Art. 7(2) of the Extradition Treaty between the Netherlands and the United States (see supra n. 92). Cf., on this opinion, Kuyper, J.H.R., ‘The Netherlands Law of Extradition’, in International Law in the Netherlands, vol. II (1978) p. 238.Google Scholar
94. Trb. (1974) No. 191. For the text of Art. XII, see under Held.
95. Stb. (1979) No. 163.
96. The President used the Dutch text.
97. Note by G. Caarls. Summarised in WRvS (1984) No. 2.46; reported in Rondzending van de Werkgroep Rechtsbijstand in Vreemdelingenzaken (1984) No. D 28.
98. Trb. (1975) No. 133. Art. 3 reads: ‘Each Contracting Party grants permission to reside in its territory for the purposes of paid employment to any person to whom a job and appropriate housing is available in this territory’.
The Agreement expired on 24 November 1980.
99. This is a reference to the Protocol on acquired rights, belonging to the agreement on the entry and residence of their respective citizens concluded between the Netherlands and Surinam at Paramaribo on 23 January 1981. This requirement is laid down in Art. 3 of the Protocol, which reads: ‘A Surinamese national who is in the Netherlands on 24 November 1980 and who, before 25 November 1980, has acquired a legal right to reside, shall also be permitted to effectuate this right after 24 November 1980, provided he applied for a residence permit and, where necessary, an employment permit, prior to 25 February 1981. He shall be entitled to the rights arising from Article 1 of the Agreement’. Trb. (1981) No. 35.
100. Point 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 for 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 1980/1981 — 16489 No. 2). The migration treaty was concluded on 23 January 1981, and published under the title ‘Agreement on the entry and residence of their respective citizens’ 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. In the period from 25 November 1980 to 23 January 1981, the applicants relied on the Telex Notice.
101. For Art. 3, see supra n. 99.
102. Caarls (see supra n. 97) takes the view that this conclusion could have been arrived at much more simply by referring to the system provided for in the 1981 Protocol, which contains not only Art. 3 as referred to above, but also Art. 2, which provides precisely for a situation such as the present one. Art. 2 reads: ‘Those who have applied for a residence permit or for a temporary residence permit prior to 25 November 1980, and who are shown to have fulfilled prior to this date the relevant requirements laid down in the Agreement referred to in Article 1, are eligible for a residence permit and enjoy the rights arising from the Agreement’.
Cf., with respect to earlier judgments in which the unclear situation regarding the successive sets of regulations for the admittance of Surinamese nationals played a role: 13 NY1L (1982) pp. 325–329 and 15 NYIL (1984) pp. 461–464. See also supra pp. 261–263.
103. Partially reproduced in WRvS (1985) No. 1.28.
104. Art. 4 reads: ‘The provision of information … shall also not take place if and insofar as the interest thereby served does not outweigh the following interests … (d) the relations of the Netherlands with other countries … (i) the prevention of disproportionate benefit or harm to the natural persons or legal persons involved in the matter or to third parties’.
105. The Accords contain an arrangement which is sanctioned by the Governments of Indonesia and the Netherlands and provides (1) ways of repatriating to Indonesia Moluccans resident in the Netherlands and (2) other means for Moluccans in the Netherlands to be in contact with Indonesia.
106. For Art. 4(i) see supra n. 104.
107. Reported briefly in ELD (1985) pp. 360 and 390.
108. ILM (1979) p. 45; Trb. (1970) No. 196. Art. V reads: ‘(1) The owner of a ship shall be entitled to limit his liability under this Convention in respect of any one incident to an aggregate amount of 2,000 francs for each ton of the ship's tonnage. However, this aggregate amount shall not in any event exceed 210 million francs. (2) If the incident occurred as a result of the actual fault or privity of the owner, he shall not be entitled to avail himself of the limitation provided in paragraph 1 of this Article. (3) For the purpose of availing himself of the benefit of limitation provided for in paragraph 1 of this Article the owner shall constitute a fund for the total sum representing the limit of his liability with the Court or other competent authority of any one of the Contracting States in which action is brought under Article IX. The fund can be constituted either by depositing the sum or by producing a bank guarantee or other guarantee, acceptable under the legislation of the Contracting State where the fund is constituted, and considered to be adequate by the Court or another competent authority. (4) The fund shall be distributed among the claimants in proportion to the amounts of their established claims. (5) If before the fund is distributed the owner or any of his servants or agents or any person providing him insurance or other financial security has as a result of the incident in question, paid compensation for pollution damage, such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. (6) The right of subrogation provided for in paragraph 5 of this Article may also be exercised by a person other than those mentioned therein in respect of any amount of compensation for pollution damage which he may have paid but only to the extent that such subrogation is permitted under the applicable national law. (7) Where the owner or any other person establishes that he may be compelled to pay at a later date in whole or in part any such amount of compensation, with regard to which such person would have enjoyed a right of subrogation under paragraphs 5 or 6 of this Article, had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund …’
109. Stb. (1975) No. 321 (cf., NYIL (1976) p. 372). Art. 10 reads: ‘If damage occurs as the result of one and the same accident not only in the Netherlands but also in one or more other States which are party to the Convention, the constitution of a fund in that State or in one of those States in accordance with Article V of the Convention shall have the same legal consequences in the Netherlands as the constitution of a fund in the Netherlands if the creditor has access to the court which manages the fund and the fund is actually available for the satisfaction of his claim’.
110. For the text of Art. V(7), see supra n. 108.
111. 15 NYIL (1984) pp. 467–468.
112. The defendant no longer disputed that the preventive measures caused ‘damage’ as referred to in Art. I(6) of the Convention. Art. I(6) reads: ‘“Pollution damage” means loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures’.
113. Art. IX reads: ‘(1) Where an incident has caused pollution damage in the territory including the territorial sea of one or more Contracting States, or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States. Reasonable notice of any such action shall be given to the defendant. (2) Each Contracting State shall ensure that its Courts possess the necessary jurisdiction to entertain such actions for compensation. (3) After the fund has been constituted in accordance with Article V the Courts of the State in which the fund is constituted shall be exclusively competent to determine all matters relating to the apportionment and distribution of the fund’.
114. Art. 320u reads: ‘Subject to the provisions of the fourth paragraph of Article 320f, the claims of creditors who, although they have been properly notified, fail to prove their claims, shall be barred when the distribution of assets becomes final’.
115. For Art. IX(1), see supra n. 113.
116. Note by L. Wichers Hoeth.
116a. Note by G.R. Lichtveld; summarised in AA (1985) p. 474 with note by H. Cohen Jehoram; summarised in NJB (1985) p. 392.
117. Trb.(1974) No. 198. Art. 22 reads: ‘(1) Les Membres s'engagent à prendre toutes les mesures possibles, compatibles avec le système de télécommunication employé en vue d'assurer le secret des correspondances internationales. (2) Toutefois, ils se réservent le droit de communiquer ces correspondances aux autorités compétentes, afin d'assurer l'application de leur législation intérieure ou l'exécution des conventions internationales auxquelles ils sont parties’.
118. Trb. (1981) No. 78. Art. 23 reads: ‘In the application of the appropriate provisions of the Convention, administrations bind themselves to take the necessary measures to prohibit and prevent: (a) the unauthorised interception of radiocommunications not intended for the general use of the public’.
119. Official Journal of the Netherlands Antilles (1944) No. 45. Art. 4 reads: ‘(1) Other than with the consent of the Governor, it is forbidden to establish, possess or operate a transmitter or receiver for radio telegraph or telephone for which no licence has been granted. (2) As regards receivers for radio telegraph and telephone, the requested consent for the establishment and operation thereof may be refused or withdrawn only if this is necessary because of a state of war or the imminent outbreak of war or because there are reasonable grounds for supposing that misuse is or will be made thereof’.
120. Art. 1, as amended in 1972 (Official Journal (1972) No. 105) defines telegraphs and telephones as meaning any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.
121. Tijdschrift voor Antilliaans Recht (1984) p. 30 with note by R.S.J. Martha on p. 43.
122. Official Journal (1971) No. 33.
123. 11 Justicia (1983) p. 94 and Tijdschrift voor Antilliaans Recht (1984) p. 44 with note by R.S.J. Martha on p. 51.
124. Under Art. 23 of the Charter of the Kingdom of the Netherlands (Stb. (1954) No. 596; NTIR (1958) p. 107), powers regarding ‘judicial matters’ in the Netherlands Antilles are conferred on the Netherlands Supreme Court by the Kingdom Act. The powers were elaborated in the Kingdom Act of 20 July 1961 (Stb. (1961) No. 212). As regards the Charter of the Kingdom of the Netherlands, cf., van Panhuys, H.F., ‘The International Aspects of the Reconstruction of the Kingdom of the Netherlands in 1954’, NTIR (1958) pp. 1–31Google Scholar, and for later developments, cf., Bos, M., ‘Surinam's Road from Self-government to Sovereignty’, 7 NYIL (1976) pp. 131–141.CrossRefGoogle Scholar
125. KG (1984) No. 57.
126. On appeal K. claimed in addition that the State should be ordered to send a translation of the judgment to the West German authorities. The Court of Appeal rejected this additional claim since it had been made in the pleadings and not, as prescribed, in the statement of claim. For the grant of a claim of this kind, see infra n. 128.
127. As regards the discretion allowed to the State in this matter, cf., also the judgments of the Hague District Court dated 29 June 1984, infra n. 128, 1 May 1984, supra at pp. 267–269, and 14 December 1983, 16 NYIL (1985) p. 513.
128. The actions of German agents provocateurs were also at issue in the comparable case of E.M.B. v. the State of the Netherlands. The President of the Hague District Court held in that case that the actions of agents provocateurs could not be considered to be unlawful in all circumstances in the context of international co-operation between criminal justice authorities and police forces to combat trafficking in narcotic drugs. The acts of two German agents provocateurs in the case in point were held not to have been unlawful. Since, however, the Dutch police had co-operated in a plan to lure B., a Dutch national, to the Federal Republic of Germany with a view not only to his arrest there but also to his prosecution and trial for offences committed in the Netherlands (24 of the 27 offences), this cooperation constituted an unlawful act, inter alia, because the German courts generally pass heavier sentences for trafficking in narcotic drugs than do the Dutch courts. The District Court considered that the State was liable for tortious acts committed by the Heerlen police in the discharge of their duties. The District Court subsequently held that the State had a discretion in determining its policy in relations with foreign powers. The Courts could intervene only if the tort in question constituted a flagrant breach of the law. In the present case, there had been such a breach since the acts of the Dutch police amounted to an extradition other than pursuant to the European Extradition Convention in force between the Netherlands and the Federal Republic of Germany. Such an extradition therefore constituted a flagrant breach of the fundamental right enshrined in Art. 2(3) of the Constitution. The District Court considered that this justified a judicial order that a translation of its judgment be sent to the Minister for Justice of the Land of Hesse’. (judgment of 29 June 1984, KG (1984) No. 197; NJ (1985) No. 815. Summarised in NJB (1984) p. 881 No. 6 and DD (1985) pp. 150–151. An appeal was lodged against this judgment, but was withdrawn on 27 October 1985).
129. For the text, see under Held.
130. 7 ILM (1968) p. 811; Trb. (1968) No. 126.
131. For the texts, see under Held. For a description of the system of the Act and Decree, see 8 NYIL (1979) pp. 331–333 and 13 NYIL (1981) pp. 293–294. For Dutch policy under the provisions of the Act and Decree, see 13 NYIL (1982) pp. 270–271.
132. For an interpretation of the term ‘international legal order’ cf., CBB 28 March 1984, 16 NYIL (1985) pp. 528–535.
133. It was also explained in the respondent's decision that the interests of free international trade are never accorded precedence in cases involving the export of goods to countries belonging to the Sino-Soviet blot
134. The respondent's decision also referred to the fact that the relevant Pakistani nuclear scientist, K., was sentenced by default to 4 years' imprisonment by the Amsterdam District Court on 14 November 1983 for attempted espionage. In 1976 and 1977 he had attempted to acquire from the Fysisch Dynamisch Onderzoekscentrum (FDO) written information concerning a technique which was applied by the FDO in the ultracentrifuge project at Almelo and which was classified as secret in the interests of the State and its allies (Art. 98 and 98c of the Penal Code). In passing sentence, the court also took account of the damage which K. had wished to inflict on the interests of the State and of the international legal order. As an expert, K. should have been aware of the dangers inherent in the spread of information regarding ultracentrifuge technology, which could lead to unsupervised use for non-peaceful purposes, thereby creating a danger for humanity (NJ (1984) No. 282).
The Trade and Industry Appeals Tribunal could not take cognizance of this offence because the judgment of the District Court was reversed on appeal by the Amsterdam Court of Appeal on 28 March 1985. The Court of Appeal held that the public prosecutions department had not made it sufficiently clear whether the summons had been served at the correct place in Pakistan.
135. Stb. (1954) No. 416. Art. 5 reads: ‘Appeal lies if (a) the decision is in conflict with a provision binding on any person; (b) the powers of decision have obviously been used for purposes other than those for which they are intended; (c) the decision is not reasonable, weighing up the various interests involved; (d) the decision has been taken contrary to the recognised principles of proper government’. As regards the Trade and Industry Appeals Tribunal and its powers under the Administrative Justice (Mandatory Corporations) Act, cf., Introduction to Dutch Law for Foreign Lawyers (1978) pp. 450–452 and 529.Google Scholar
136. The managing director of Slebos Research was sentenced by Alkmaar District Court on 2 July 1985 to one year's imprisonment for the attempted export (within the meaning of Art. 1 of the Import and Export Act) of the oscilloscope without a licence. The oscilloscope was to have been exported via a company based at Sharjah in the United Arab Emirates. When passing sentence, the court took into account the fact that the managing director had allowed his own firm's interests (namely monetary gain) to take precedence over the interests of non-proliferation as enshrined in the 1968 treaty, which formed the basis for the statutory offence as laid down by the legislature (Institute's Collection No. 2320). At an earlier date, Breda District Court had acquitted Van Doorne's Transmissie, its managing director and the head of its buying department of the export, within the meaning of Art. 1 of the Import and Export Act, of a special type of pipe to Pakistan without a licence, because it was not proved that these pipes were specially designed parts of gas centrifuges (judgment of 6 September 1984, Institute's Collection No. 2321).
137. Partially reproduced in WRvS (1985) No. 1.28. Cf., Aanh. Hand. II 1983/84 No. 236.
138. For Art. 4(d), see supra n. 104.
139. The NDKK is a bilateral commission, which was established on 28 October 1979 on the basis of a joint memorandum on mutual notification and consultation with regard to nuclear installations in the border area prepared by the Ministers of the Environment of the Netherlands and the Federal Republic of Germany. The memorandum consisted of an exchange of letters between the ministers of the two countries.
140. The Rules of Procedure were based on Art. 10 of the memorandum establishing the NDKK.
141. The Judicial Division came to the same conclusion with regard to the appeal of T.P.F. Hoffmans against the refusal of the Minister for Economic Affairs to supply copies of two agreements which the Netherlands had concluded with Schnell Bruter Kernkraftwerkgesellsschaft at Kalkar. It had been indicated on behalf of the Governments of the Federal Republic of Germany and Belgium that they were counting on the confidentiality of the relevant documents and that for this reason they objected to publication. If it should nevertheless be decided to publish the documents, there was a real danger that this would have a direct effect on the attitude in Belgium and the Federal Republic to co-operation with the Netherlands. This might undermine the position of the Netherlands in consultations with these two countries (judgment of 23 September 1985, Institute's Collection, No. 2329).
142. Note by W.H. Heemskerk. Discussed by Buikema, R.H. in ‘Derdenbeslag op ontwikke-lingssamenwerkingsgelden’ (Garnishee order served on development funds), 60 NJB (1985) pp. 1361–1365Google Scholar. Partially reproduced in NIPR (1985) No. 480 and NJB (1985) p. 690 No. 93.
143. Art. 479a reads: ‘(1) A garnishee order on the State or a public body shall, without prejudice to the provisions of Article 438a, be permissible, but only in respect of certain debts or goods described in the writ of service or, in the case of simplified attachment, in the notice or claim. … (3) The State or the public body in question may apply to the President in the public interest for an interlocutory injunction terminating the garnishee order forthwith’.
Art. 737 reads: ‘Article 479a of this Code shall apply to garnishee orders on the State or public bodies.’
144. Trb. (1975) No. 40.
145. Trb. (1976) No. 8.
146. Art. 438a reads: ‘Property intended for public service should not be seized’.
Cf., Voskuil, C.C.A., ‘The International Law of State Immunity, as Reflected in Dutch Civil Law of Execution’, 10 NYIL (1979) pp. 251–52, 262–64, 278–80.CrossRefGoogle Scholar
147. The President came to the same conclusion with regard to a garnishee order imposed on the State of the Netherlands by J.H.J. Jagers in respect of moneys or goods owed to Uganda in connection with allocations of development aid. The Netherlands had decided to make Dfl. 20,000,000 available to the International Development Agency (IDA) out of the development aid funds in the 1984 budget, on condition that the money was used for balance-of-payments aid to Uganda. In terms of the relationship between the Netherlands and Uganda, the funds in question were therefore intended under Dutch law for public service, and could not be attached pursuant to Art. 438a of the Code of Civil Procedure (judgment of 12 September 1984, partially reproduced in NIPR (1985) No. 478). Idem with regard to an attachment on development moneys for Egypt, cf., 16 NYIL (1985) p. 463 n. 4.
148. NIPR (1984) No. 328
149. In the case of J.H.J. Jagers v. the State of the Netherlands, the Court of Appeal at The Hague also based its decision to terminate the garnishee order imposed on the State of the Netherlands in respect of development aid funds for Uganda on Article 479a of the Code of Civil Procedure and not on Article 438a of the Code of Civil Procedure (as had the District Court, see supra n. 147). The undertaking to provide development aid for Uganda was given in compliance with international undertakings of the Netherlands, was based on one or more Cabinet decisions and had been approved by Parliament. A public interest as referred to in Art. 479a of the Code of Civil Procedure was therefore served by the aid. The Court of Appeal also held that since it was uncertain whether Uganda had given its approval, as required, to the allocation of Dfl. 20,000,000 to the International Development Agency as balance-of-payments aid, it had not been established whether there was a legal relationship giving rise to a debt on the part of the State of the Netherlands which could be attached. Nor, according to the Court of Appeal, had it been established whether the agency to which the development aid funds had to be paid represented Uganda in receiving the funds, so that the funds could be attached in the possession of the State of the Netherlands rather than in that of the IDA (judgment of 2 May 1985, partially reproduced in NIPR (1985) No. 478.