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Netherlands judicial decisions involving questions of public international law, 1988–1989*
Published online by Cambridge University Press: 07 July 2009
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References
1. Note by F.H. van der Burg.
2. Note by F.M.H. Hirsch Ballin.
3. Note by A.W. Heringa.
4. Note by M. Scheltema, summarised in NJB (1989) p. 619 (No. 105) and ELD (1989) pp. 462 and 466.
4a. Note by C.A.J.M. Kortmann.
5. Art. 120 reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts;’
6. 213 UNTS p. 221; ETS No. 5; Trb. 1951 No. 154. Art. 6(1) reads: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’
7. 5 NILR (1958) p. 107; Stb. 1954 No. 596. For the text of Art. 49 see under Held, 4.1.
8. 429 UNTS p. 93; Trb. 1964 No. 69.
9. 999 UNTS p. 171; ILM (1967) p. 368; Trb. 1969 No. 99. Art. 26 reads: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
10. 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.’
11. 213 UNTS p. 262; ETS No. 9; Trb. 1952 No. 80. Art. 2 reads: ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’
12. 993 UNTS p. 3; ILM (1967) p. 360; Trb. 1969 No. 100. Art. 13 reads: ‘(1) The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the same of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. (2) The States Parties to the present Covenant recognise that, with a view to achieving the full realization of this right:… (c) higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;… (e) the development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved’
13. Art. 93 reads: ‘Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published’.
14. Art. 2(1) reads: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means including particularly the adoption of legislative measures’.
15. Art. 43 reads: ‘(1) Each of the countries shall be responsible for promoting fundamental human rights and freedoms, legal certainty and proper administration. (2) The safeguarding of these rights and freedoms, legal certainty and proper administration shall be a Kingdom affair.’
16. KG (1988) No. 333, AB (1988) No. 470, AA (1988) p. 777, with note by van Male, R.M., RegelMaat (1988) p. 149Google Scholar, with note by H.R.B.M. Krummeling, discussed by H. van Maarseveen in NJB (1988) pp. 1039–1042 and by K. Bongenaar on pp. 1309–1311 and by Alkema, E.A. in NCJM-Bulletin (1988) p. 615.Google Scholar
17. The opinion given by the Advocate-General is discussed by H.F. Munneke in NJB (1989) pp. 326–328.
18. 10 NILR (1963) p. 82; cf., also Erades, L. ‘International Law and the Netherlands Legal Order’ in International Law in the Netherlands, Vol. III (1980) pp. 419–420.Google Scholar
19. I.e., an Act applicable throughout the Kingdom of the Netherlands in Europe and overseas.
20. This is probably a reference to Art. 94. Art. 94 reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions’.
21. For the view of the Central Appeals Court for the Public Service and Social Security Matters on the question of direct effect of the Covenant, cf., infra, pp. 375–379.
22. Discussed by Heringa, A.W. in NJCM-Bulletin (1988) p. 115Google Scholar and in SIM Newsletter (1988) p. 22.Google Scholar
23. Note by J.H. Smits.
24. Note by S. Feenstra under RSV (1989) No. 200, partly reproduced in Nemesis (1988) No. 2, discussed on p. 68 by M. Steinmetz in NJB (1988), on p. 589 et seqxs. by W.M. Levelt-Overmars and on p. 600 et seq. by J.E.M. Polak.
25. For the texts of Arts. 2(1) and 26, see under Held.
26. Art. 2(2) reads: ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.
Art. 3 reads: ‘The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant’.
Art. 9 reads: ‘The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance:’.
27. Act of 20 December 1979 (Stb. 1979 No. 708) containing, inter alia, amendments to the General Disablement Benefit Act.
28. See 19 NYIL (1988) pp. 430–434.
29. The Court used the Dutch translation of both articles.
30. See 16 NYIL (1985) pp. 501–505.
31. See supra, n. 28.
32. OJ (1979) No. L 6/24.
33. In the case of the Board of the Social Insurance Bank at Middelburg v. D.v.R., the Central Appeals Court held that the provision in the Widows' and Orphans' Benefits Act [Algemene Weduwen- en Wezenwet] limiting its operation to widows in the case of claims to entitlement following the death of one of the spouses was incompatible with Art. 26. The Court held that Art. 26 was applicable, having regard to the International Covenant on Economic, Social and Cultural Rights. Since this provision of the Widows' and Orphans' Benefits Act was recognised as a problem when the Covenant came into force – or in any event shortly afterwards – the Court held that the period for the gradual abolition of the discrimination had certainly ended at the time of the death of the spouse (April 1986). According to the Court, the direct effect of Art. 26 was not suspended by the lack of an EEC Directive on the subject. Furthermore, although the operation of provisions of Directives such as 79/7 and 87/C309/11 (supranational law provisions) and Art. 26 (international law provision) was not mutually dependent, this did not mean that it was not advisable to synchronise their operation for practical reasons. The Court believes that the system obtaining in the Netherlands, whereby international and supranational law takes effect in national law, means that discrimination must be abolished by the courts in cases where acts are in breach of Art. 26 and this article has direct effect. It was not sufficient therefore to say that the legislature had the exclusive task of finding a solution (cf., Supreme Court 12 October 1984, 17 NYIL (1986) p. 251). It was for the legislature to abolish the relevant discrimination in the future and for the courts to abolish it up to that time by applying Art. 26. (Judgment of 7 December 1988, AB (1989) No. 10, with note by J.H. Smits, Nemesis (1989) No. 29, NJCM-Bulletin (1989) p. 71Google Scholar, with note by F.W. Keunen). At first instance, the Social Security Tribunal of Rotterdam took the same view of the role of the courts (cf., 19 NYIL (1988) p. 433 n. 17). Nonetheless, the Central Appeals Court was not very clear in this case about the moment at which Art. 26 could be held to be directly effective. However, the Central Appeals Court was clear on this point in the case of the Burgomaster and Aldermen of Utrecht v. J.B.. In this case, the Court held that Art. 26, with which Art. 13(1)(1) of the Unemployment Benefits Act [Wet Werkloosheidsvoorziening] was judged to be in conflict because of discrimination on the ground of sex in conjunction with marital status, could have direct effect only from 23 December 1984 onwards. In so holding, the Court referred not to EEC Directive 79/7 but, as in the above-mentioned case, to the International Covenant on Economic, Social and Cultural Rights (judgment of 10 May 1989, Nemesis (1989) No. 50, with note by A. Lenting under Nemesis (1989) No. 51, summarised in NJB (1989) p. 981 (No. 7)). However, a reference to the EEC Directive was contained in a judgment given by the Central Appeals Court on the same day in the virtually identical case of the Burgomaster and Aldermen of Tilburg v. H.V. (Nemesis (1989) No. 51). According to the Central Appeals Court, Art. 26 can thus be assumed to have direct effect from 23 December 1984 onwards (i.e, the end of the adjustment period under the EEC Directive) or from an earlier date if the national legislation has been amended earlier (in the case of the General Disablement Benefit Act: 1 January 1980). The Central Appeals Court therefore rules out a third possibility, i.e., the date of entry into effect of the International Covenant on Civil and Political Rights (March 1979), which the Social Security Tribunal of Amsterdam considered to exist in the case of S.K. v. the Burgomaster and Aldermen of Amsterdam (judgment of 24 November 1987, RSV (1987) No. 222, with note by S. Feenstra under RSV (1988) No. 200).
33a. See for the comment of the Dutch Government on the judgment 20 NYIL (1989) pp. 173–178.
34. Note by H.P.J.A.M. Hennekens.
35. Note by A.W. Heringa, summarised in NJB (1989) p. 397 (No. 6).
36. For the text of Art. 93, see supra, n. 13 and for the text of Art. 94, supra, n. 20.
37. Art. 7 reads: ‘The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: (a) remuneration which provides all workers, as a minimum, with (i) fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work …’.
38. For the text of Art. 26, see supra, n. 9.
39. 19 NYIL (1988) pp. 427–430.
40. For the opinion of the Supreme Court on the directly effective nature of the Covenant, cf., supra, pp. 362–370.
41. Summarised in NJB (1989) p. 973 (No. 161), NIPR (1990) No. 319 and ELD (1990) p: 43.
42. 199 UNTS p. 67; Trb 1951 No. 114. For the text of Art. VIII(5), see under Held.
43. Art. 1403(3) reads: ‘Masters and persons who appoint others to look after their affairs shall be responsible for the damage caused by their servants and subordinates in the work for which they have used such persons.’
44. Institute's Collection No. 2649.
45. Institute's Collection No. 2881.
46. Para. 6 reads: ‘Claims against members of a force or civilian component arising out of tortious acts or omissions in the receiving State not done in the performance of official duty shall be dealt with in the following manner: (a) The authorities of the receiving State shall consider the claim and assess compensation to the claimant in a fair and just manner, taking into account all the circumstances of the case, including the conduct of the injured person, and shall prepare a report on the matter. (b) The report shall be delivered to the authorities of the sending State, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount, (c) If an offer of an ex gratia payment is made and accepted by the claimant in full satisfaction of his claim, the authorities of the sending State shall make the payment themselves and inform the authorities of the receiving State of their decision and of the sum paid, (d) Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or of a civilian component unless and until there has been payment in full satisfaction of the claim’.
47. Para. 8 reads: ‘If a dispute arises as to whether a tortious act or omission of a member of a force or civilian component was done in the performance of official duty or as to whether the use of any vehicle of the armed services of a sending State was unauthorised, the question shall be submitted to an arbitrator appointed in accordance with paragraph 2 (b) of this article, whose decision on this point shall be final and conclusive.’.
48. The Supreme Court used the Dutch translation.
49. Summarised in NIPR (1988) No. 544.
50. 439 UNTS p. 193; Trb. 1981 No. 165. Art. 18 reads: ‘(a) Any High Contracting Party may at the time of its ratification of or accession to this Convention or at any time thereafter declare by written notification to the Belgian Ministry of Foreign Affairs that the Convention shall extend to any of the territories for whose international relations it is responsible. The Convention shall, six months after the date of the receipt of such notification by the Belgian Ministry of Foreign Affairs, extend to the territories named therein, but not before the date of the coming into force of the Convention in respect of such High Contracting Party, (b) A High Contracting Party which has made a declaration under paragraph (a) of this article extending the Convention to any territory for whose international relations it is responsible may at any time thereafter declare by notification given to the Belgian Ministry of Foreign Affairs that the Convention shall cease to extend to such territory and the Convention shall, one year after the receipt of the notification by the Belgian Ministry of Foreign Affairs, cease to extend thereto, (c) The Belgian Ministry of Foreign Affairs shall inform through diplomatic channels all signatory and acceding States of any notification received by it under this Art’.
51. Leave was granted for a sum of up to US$ 325,000.
52. Art. 1 reads: ‘In this Convention, the following words shall have the meanings hereby assigned to them: (1) “Maritime Claim” means a claim arising out of one or more of the following: (a) damage caused by any ship either in collision or otherwise; (b) loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship; (c) salvage; (d) agreement relating to the use or hire of any ship whether by charterparty or otherwise; (e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise; (f) loss of or damage to goods including baggage carried in any ship; (g)…’
53. Cf., CML News Letter (1985) Summer, p. 1.
54. Trb. 1981 No. 165.
55. Convention of 23 August 1978. ILM (1978) p. 1488. Art. 17 reads: ‘(1) Subject to paragraphs 2 and 3, a newly independent State may, by a notification of succession, establish its status as a party to any multilateral treaty which at the date of the succession of States was in force in respect of the territory to which the succession of States relates’.
56. ILM (1969) p. 679; Trb. 1972 No. 51. Art. 77 reads: ‘1. The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting States, comprise in particular: (a) …(c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it; (d) examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question; (e) informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty; (f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited; (g)…’
57. See 439 UNTS p. 194, n. 1.
58. Trb. 1981 No. 165, p. 18.
59. Trb. 1981 No. 165, p. 16.
60. Trb. 1983 No. 25, p. 3.
61. See supra, n. 58.
62. Trb. 1981 No. 165, p. 27.
63. Note by H. Ahmad Ali.
64. 997 UNTS p. 11; Trb 1975 No. 132. Art. 5 reads: ‘(1) Dutch nationals of full age who were born in Suriname or who, although born outside Suriname, belong to one of the groups of persons described in Art. 4 (b) and on the date of entry into force of this Agreement have their domicile or place of actual residence outside the Republic of Suriname may acquire Surinamese nationality, even outside the Republic of Suriname, by making a declaration signifying their desire for such nationality prior to 1 January 1986. (2) The persons referred to in paragraph 1 shall have the unconditional right to be admitted to the Republic of Suriname with their families at any time and there to be treated as Surinamese nationals in every sense. They shall acquire Surinamese nationality automatically if they have their domicile or place of actual residence in the Republic of Suriname for a period of two years’.
65. Art. 7(1) reads: ‘Where the nationality of a spouse is changed pursuant to this Agreement, each of the spouses shall have the right to acquire the nationality of the other spouse by making a declaration signifying his or her desire for such nationality within five years of the change, provided that the two spouses have their domicile or place of actual residence in the same country on the date of the said declaration’.
66. H. had resided with his wife in the Netherlands again since 7 November 1982.
67. Art. 107 reads: ‘Pending the examination, a decision which is the subject of a dispute to be decided by the Division or against which a notice of objection has been lodged pursuant to Art. 7(2), of the Administrative Decisions Appeals Act may, at the request of the interested party, be suspended in whole or in part by the President on the ground that implementation of the decision would mean that such party would suffer harm disproportionate to the interest that would be served by immediate implementation of the decision. A provisional measure may also be made at his request in order to prevent disproportionate harm as referred to in the first sentence.’.
68. KG (1987) No. 272, Rechtspraak Vreemdelingenrecht (1987) No. 35 with note by J.J. Bolten. Summarised in WRvS (1987) No. R 98.
69. Art. 2 (1) reads: ‘The acquisition of Surinamese nationality pursuant to this Agreement shall entail the loss of Dutch nationality’.
70. The commentary reads: ‘This provision is intended to restore the unity of nationality of husband and wife where this has been broken by or as a result of this Agreement. Naturally, it is for the persons concerned themselves to determine whether they wish this. No distinction is made between husband and wife. Husband and wife have equal rights. There is every reason for this here since the loss of a uniform nationality is not attributable to the actions of one of the spouses but is a consequence of Suriname becoming independent. The possibility of restoring unity of nationality is limited to cases in which the spouses live in the same country’. Bijl. Hand. II, 1974–1975, 13467 No. 1.
71. A statistical survey of decisions of the Judicial Division of the Council of State and the ordinary courts during 1988–1989 which involved the admission of aliens is included in the Explanatory Memorandum to the Draft Budget of the Ministry of Justice for 1990 (Bijl. Hand. II 1989/1990 – 21300 VI No. 3 p. 46).
72. Discussed on p. 516.
73. Discussed by A. Takkenberg in ‘Asielzoekers op Schiphol: een hardnekkige discussie’ (Asylum-seekers at Schiphol Airport: a persistent debate), MR (1989) pp. 95–97.
74. Note by F.H. van der Burg.
75. Note by P. Boeles, summarised in NJB (1989) p. 26 and NJCM-Bulletin (1989) p. 83, with note by E. Brouwer.
75a. Note by E.A. Alkema.
76. Art. 5(1)(f) reads: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’.
77. Art. 7(1) reads: ‘Aliens who are refused admission to the Netherlands shall leave the country immediately, subject to due observance of any instructions given by a border control official’.
78. Art. 15 reads: ‘(1) Other than in the cases laid down by or pursuant to Act of Parliament no one may be deprived of his liberty. (2) Anyone who has been deprived of his liberty other than by order of a court may request a court to order his release. In such a case he shall be heard by the court within a period to be laid down by Act of Parliament. The court shall order his immediate release if it considers the deprivation of liberty to be unlawful. (3) The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable period. (4) A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty’.
79. KG (1987) No. 34, Rechtspraak Vreemdelingenrecht (1986) No. 11, with note by A.H.J. Swart. The President held that there was no conflict with Art. 15 of the Constitution and Art. 5 of the European Convention since there was no deprivation of liberty within the meaning of those articles. In the opinion of the President, a stay at the reception centre at Schiphol-Oost did not differ markedly from a stay in the transit area in terms of restriction on liberty and could not be held to be custody within the meaning of Arts. 18 and 26 of the Aliens Act. In the T. case, the Court of Appeal applied similar reasoning with regard to the transit area. The stay in the reception centre occurred on the basis of Art. 7(1) of the Aliens Act. The President of the District Court of Haarlem repeated this view in his judgment in the case of G.A.S. v. the State of the Netherlands. Although he considered that in the light of the case law of the European Court of Human Rights (vagrancy – Guzzardi, Bozano) there could be some doubt as to whether the stay at Schiphol-Oost might not be deemed to be deprivation of liberty within the meaning of Art. 5 of the European Convention, he felt that it was by no means impossible that the European Court would hold that there was no question of this (judgment of 11 August 1987, KG (1987) No. 402, Nieuwsbrief Asiel- en Vluchtelingenrecht (1987) p. 603Google Scholar, discussed on p. 529 and discussed by P. Boeles in a note in Rechtspraak Vreemdelingenrecht (1987) No. 56Google Scholar). In his judgment in the case of N.D. and 15 others v. the State of the Netherlands, however, the President held that the Engel and Guzzardi cases of the European Court did not mean that a stay in the reception centre was in breach of Art. 5 of the Convention. Nor could this be inferred from the decision of the European Commission in the Bulus case (decision of 5 February 1988, Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 58, discussed on p. 13).Google Scholar
80. At the hearing before the Supreme Court, the State Advocate announced that M'.s expulsion had now occurred.
81. The reception centre was opened on 1 October 1986 after asylum-seekers awaiting the outcome of applications for interim injunctions to stop their expulsion had been barred from passing the border control point at Schiphol Airport from 1 August 1985 onwards and were compelled to remain in the transit area at Schiphol. Following the judgment of the Supreme Court of 25 May 1982 (see infra, n. 82), the so-called Schiphol procedure applied. Asylum-seekers were allowed to pass through the border control point and were put up at a hotel in Hoofddorp. This procedure was discontinued on 1 January 1984, after which asylum-seekers were as a rule admitted to the Netherlands. Because the number of asylum-seekers rose sharply in 1985, the State Secretary tightened up the policy of admissions on 1 August 1985 in the manner described above. In the case of P.H.H.M. v. the State of the Netherlands, the President of the District Court of The Hague held that this change of policy was not unlawful (judgment of 22 August 1985, Rechtspraak Vreemdelingenrecht (1985) No. 12, Nieuwsbrief Asiel- en Vluchtelingenrecht (1985) p. 355Google Scholar, discussed on p. 343). The President of the District Court of Haarlem did not consider the (compulsory) stay in the transit area to be unlawful, since Arts. 18, 19 and 24 of the Aliens Act did not apply. The same was true of Art. 5(l)(f) of the European Convention on Human Rights, Art. 2 of Protocol IV to the European Convention and Art. 31 of the Convention relating to the Status of Refugees (judgment of 16 September 1985, Nieuwsbrief Asiel- en Vluchtelingenrecht (1985) p. 346Google Scholar, discussed on p. 416). Amsterdam Court of Appeal too held in the T. case that a stay in the transit area could not be deemed to be residence within the meaning of Art. 26 of the Aliens Act and held that it was not unlawful (judgment of 16 December 1985, Rechtspraak Vreemdelingenrecht (1985) No. 71Google Scholar, with note by P. Boeles). On this point, cf., Hamerslag, R.J., ‘Opvangcen-trum Schiphol-Oost: een schending van de mensenrechten’ [Schiphol-Oost reception centre: a violation of human rights], AA (1987) pp. 537–540.Google Scholar
82. Cf., Supreme Court 25 May 1982, 15 NYIL (1984) pp. 436–437.
83. Art. 26 reads: ‘1. In the interests of public peace, public order or national security, the following persons may be taken into custody: (a) aliens whose expulsion has been ordered; (b) aliens in respect of whom there are good grounds for expecting that their expulsion will be ordered; (c) aliens who are not allowed to reside in the Netherlands under any of the provisions of Arts. 8 to 10 pending the decision on their request for a residence permit, a permanent residence permit or admission as a refugee. 2. An alien shall not be taken into custody if – and custody shall be ended as soon as – he intimates that he wishes to leave the Netherlands and is in fact able to do so’.
84. As a consequence of the judgment of the Supreme Court, asylum-seekers were once again kept in the airport transit area. In his judgment in the case of X, Y and Z v. the State of the Netherlands, the President of the District Court of Haarlem inferred from the judgment of the Supreme Court that since a compulsory stay in the transit area of Schiphol did not differ markedly from a stay in the reception centre at Schiphol-Oost, this was contrary to Art. 5(l)(f) of the European Convention (judgment of 30 December 1988, KG (1989) No. 69, Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 548Google Scholar, discussed on p. 517, Rechtspraak Vreemdelingenrecht (1988) No. 15, with note by P. Boeles, Migrantenrecht (1987) No. 33, KG (1989) No. 69; upheld by Amsterdam Court of Appeal on 30 April 1989, Nieuwsbrief Asiel- en Vluchtelingenrecht (1989) p. 177Google Scholar, discussed on p. 106). On the basis of this judgment of the District Court, the asylum-seekers were allowed into the Netherlands to await the outcome of their application.
The judgment of the Supreme Court prompted the legislature to include a new Art. 7a in the Aliens Act, creating a statutory basis for the stay of asylum-seekers at the reception centre at Schiphol-Oost (Stb. 1989 No. 6), discussed by Kruyt, A. in ‘Wet verzekering grensbewaking’ [Border Control Security Act], MR (1989) pp. 98–99Google Scholar. The Act came into force on 21 January 1989, from which date the Schiphol-Oost reception centre was re-opened. The District Court of Haarlem, sitting in chambers, has now held that this new Art. 7(a) does not entail a restriction of the right to liberty imposed contrary to Art. 18 of the European Convention for a purpose other than that prescribed in Art. 5(1)(f) of the Convention (judgment of 28 March 1989, Nieuwsbrief Asiel- en Vluchtelingenrecht (1989) p. 180Google Scholar, discussed on p. 106, Rechtspraak Vreemdelingenrecht (1989) No. 68Google Scholar, with note by A.H.J. Swart).
85. The case did not, however, come before the Court of Appeal. Nor did the case of G.A.S. v. the State of the Netherlands, see supra, n. 79.
86. Note by J.D.M. Steenbergen, summarized in AB Kort (1989) No. 33.
87. 381 UNTS p. 165; BT I - I; Trb. 1958 No. 18. Art. 15 itself lists the institutions of the Union.
88. 374 UNTS p. 3; BT I; Trb. 1960 No. 40.
89. Art. 4 reads: ‘A visa valid for the Benelux territory is hereby instituted. The visa shall be issued by joint agreement on the basis of instructions drawn up by the Working Party. In cases to be determined by the Working Party or in the absence of joint agreement in exceptional cases, the territorial validity of the visa may be limited’.
90. Art. 1(6) reads: ‘For the purpose of the present Convention (1)…(6) The term “Working Party” means a ministerial Working Party established in accordance with Art. 21 of the Treaty instituting the Benelux Economic Union’.
91. Art. 1(1) reads: ‘For the purposes of this Act an administrative body means any person or authority invested with any form of public authority within the Netherlands …’
92. Art. 80 reads: ‘Pending appeal, a decision may, at the request of the interested person, be stayed, in whole or in part, on the ground that execution of the decision would result in harm disproportionate to the interest served by immediate execution of the decision. Provisional measures to prevent such harm are also possible at his request’.
93. The President first of all rejected the State's argument that the claim was not admissible. According to the President, the refusal could be described as a decision within the meaning of Art. 1(1) of the Administrative Decisions Appeals Act. The 1960 Benelux Convention did not, after all, create a supranational body to issue visas. The fact that a visa could not be issued other than in mutual agreement and that such a visa was valid for the entire Benelux territory did not mean that if the decision was taken by or on behalf of the Minister for Foreign Affairs of one of the three countries the decision could not serve as a decision of that Minister. Even if it were to be assumed that the Minister had taken the decision partly on behalf of the Ministers for Foreign Affairs of Belgium and Luxembourg or that it was taken by the three ministers jointly, the existence of a decision taken (or partly taken) by the respondent cannot be denied. The President finally dismissed the application for a provisional measure since the circumstances of the case were not such that K.'s presence here was required so urgently that the hearing of the appeal could not be awaited (KG (1985) No. 80, Rondzending Werkgroep Rechtsbijstand in Vreemdelingenzaken (1985) p. 116Google Scholar, with note by W. Jansen, AB (1986) No. 13, with note by R. Fernhout, Rechtspraak Vreemde-lingenrecht (1985) No. 45, with note by G. Caarls, AROB t B/S, jur. V No. 360, with note by P. van Dijk, summarised in WRvS (1985) No. R.41).
The President had the opportunity to repeat this reasoning in the case of S.K.M.I. v. Minister for Foreign Affairs (judgment of 3 February 1986), AROB t B/S (1986) No. 21, with note by ten Berge, J.B.J.M., Rechtspraak Vreemdelingenrecht (1986) No. 37Google Scholar, with note by G. Caarls). The consideraton of the President corresponded with the Supreme Court's ruling with respect to the Benelux visa in the case of J.I.B. v. State of the Netherlands (judgment of 17 June 1983, RvdW (1983) No. 125, Rechtspraak Vreemdelingenrecht (1983) No. 46, with note by C.A. Groenendijk, NJ (1984) No. 148, with note by M. Scheltema and AB (1984) No. 38, with note by J.R. SteUinga).
94. Migrantenrecht (1987) No. 62, Rechtspraak Vreemdelingenrecht (1987) No. 38, AB (1988) No. 449, with note by H.J. Simon, AROB t B/S (1987) No. 130, with note by W.L.J. Voogt, summarised in WRvS (1987) No. 2.242.
95. Case A 87/6. Jurisprudence van het Benelux-Gerechtshof (1988) p. 139Google Scholar, Migrantenrecht (1989) No. 18, with note by H. Verouden, Gids Vreemdelingenrecht No. G-10, Rechtspraak Vreemdelingenrecht (1988) No. 43, with note by Groenendijk, C.A., Tijdschrift voor Vreemdelingenrecht (1989) p. 29Google Scholar, ELD (1989) p. 187 AB (1990) No. 488, with note by H.J. Simon.
96. This is a reference to Art. 1 of the Aliens Decree which reads: ‘For the purposes of the provisions of this decree or provisions made pursuant to it: … travel visa shall mean: (a) a visa issued by or on behalf of the Minister for Foreign Affairs of one of the Benelux countries or, in the case of Belgium, the Minister of Justice, valid for the Benelux territory, for the Netherlands or part of the Netherlands, which may be issued for a stay not exceeding three months pursuant to the provisions of the Convention on the transfer of control of persons to the external frontiers of Benelux territory concluded between the Kingdom of the Netherlands, the Kingdom of Belgium and the Grand-Duchy of Luxembourg at Brussels on 11 April 1960’ and to Art. 7 of the Sovereign Decree which reads: ‘Aliens arriving in the Netherlands shall arrange for the passports of which they are the holders to be stamped with a visa of the Secretary of State, and shall not leave again until after it has been ascertained in the same fashion whither they are intending to travel’.
97. 924 UNTS p. 2; BT IV-I; 12 European Yearbook (1964) p. 259Google Scholar. Art. 6 reads: ‘(1) In the cases specified hereunder, the Benelux Court shall consider questions of interpretation of the rules of law designated in Art. 1 which arise in connection with litigation pending either before the jurisdictions of one of the three countries, sitting in their territory in Europe, or before the College of Arbitrators provided for under the Treaty instituting the Benelux Economic Union. (2) When it appears that the solution of a difficulty relating to the interpretation of a rule of law designated under Art. 1 is required for a judgment in a case pending before a national jurisdiction, that jurisdiction, if it believes that it needs a decision in the matter in order to render its judgment, may even as a matter of routine, stay any final judgment in order to obtain a decision of the Benelux Court on the question of interpretation. (3) Under the conditions specified in the preceding paragraph, a national jurisdiction whose decisions are not subject to a jurisdictional appeal under national law must bring the question of interpretation before the Benelux Court …’.
98. Art. 1(2) reads: ‘The Court shall have the task of promoting uniformity in the application of rules of law common to Belgium, Luxembourg and the Netherlands which are designated either by a convention or by a decision of the Committee of Ministers provided for by the Treaty of 3 February 1958 instituting the Benelux Economic Union’.
99. 924 UNTS p. 13; BT IV-I. Art. 1 (A)(9°) reads: ‘In application of Art. 1(2), of the Treaty concerning the establishment and the statute of a Benelux Court of Justice, the following shall be designated as common rules of law: A. For the application of chapter III of the said Treaty, the provisions contained in: (1) … (9) The Convention between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands on the transfer of control of persons to the external frontiers of Benelux territory, signed at Brussels on 11 April 1960 …’.
100. Trb. 1971 No. 107; BT I;
101. The three questions were as follows: ‘(1) Does Art. 4 of the above-mentioned Convention on the transfer of control of persons lend itself in terms of its nature and scope to application by the national courts in actions instituted before them? (2) If question 1 is answered affirmatively, should Art. 4 of the Convention on the transfer of control of persons be construed as meaning that visas as referred to in that provision may be issued not by or on behalf of a national authority of one of the Benelux countries but only pursuant to a mandate of the competent Belgian, Luxembourg and Dutch ministers jointly as members of the Working Party referred to there? (3) May the instructions referred to in Art. 4, second sentence, of the Convention on the transfer of control of persons include decisions of the Working Party which are not and will not be published?’
102. Art. 8 reads: ‘(1) Everyone has the right to respect for his private and family life, his home and 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’.
103. Office of the United Nations High Commissioner for Refugees, September 1979. For the text of paragraph 171, see infra, n. 107.
104. 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) reads: ‘…the term refugee shall apply to any person who […] (2) as a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’.
105. The State Secretary also refused to stay the operation of the decision pending the application for review. K. therefore applied to the District Court of Haarlem for an interim injunction restraining the State from expelling him until a decision had been taken on his application for review. See infra pp. 415–420 for the judgment of the District Court of Haarlem and the subsequent judgment of the Court of Appeal at Amsterdam and the Supreme Court.
106. Under Art. 34(2) of the Aliens Act, which provides that an application for review is deemed to have been refused if no decision has been taken on it within three months of the date of the application.
107. Para. 170 reads: ‘There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e., when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.’ Para. 171 reads: ‘Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution’.
108. In the comparable case of F.A. v. State Secretary for Justice (judgment of 22 September 1988, Institute‘s Collection No. 3016), the Division added that this was in no way altered by Resolution 598 of the UN Security Council of 20 September 1987 (SCOR 42nd session, Resolutions and Decisions of the Security Council (1987) p. 5).Google Scholar
109. Gids Vreemdelingenrecht No. D 12–05, Rechtspraak Vreemdelingenrecht (1984) No. 4, with note by A.H.J. Swart, AB (1985) No. 585, with note by R. Fernhout.
110. In the case of S.S. v. State Secretary for Justice, see infra, n. 111, the Judicial Division of the Council of State held that S'.s description of the war between Iran and Iraq as a religious war which was conducted by Iran with unrelenting fanaticism was also no ground for conferring refugee status in connection with desertion. The President of the District Court of Haarlem had described the Iran-Iraq conflict as a war of religion in the case of M.M.F. and four others against the State of the Netherlands. Iran's role in this conflict, in so far as the Khomeiny regime was bent on ‘exporting the Iranian revolution to its neighbour Iraq’, involved the use of ‘aggression’ within the meaning of Art. 2(4) of the Charter of the United Nations. Since M.M.F. et al., did not subscribe to the religious views fuelling the conflict, the President considered that there was a real prospect that ‘B’ status would be conferred and stayed the execution of the decision to expel (judgment of 21 July 1986, KG (1986) No. 364, Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 322Google Scholar). On appeal, however, Amsterdam Court of Appeal held that the political objections voiced against the Iran-Iraq war did not alter the statements made previously by M.M.F. et al., which were not, according to the Court of Appeal, of a political nature. The Court of Appeal quashed the judgment of the District Court (judgment of 8 January 1987, Nieuwsbrief Asiel- en Vluchtelingenrecht (1987) p. 14Google Scholar, discussed on p. 3). The Supreme Court upheld this judgment on 9 December 1988 (Institute's Collection No. 3021).
In a case concerning the request for asylum by X., an Afghan deserter, the President of the District Court of Haarlem also dealt with the Soviet intervention in Afghanistan. He noted that the role of the Soviet Union in the conflict in Afghanistan had been described by the General Assembly of the United Nations in its resolution dated 13 November 1985 (40/12) as foreign interference, in breach of the principles laid down in the Charter of the United Nations and of the inalienable right of all peoples to self-determination. The Afghan government troops and the Soviet invasion army were committing serious violations of the humanitarian law of war with great regularity. In the President's view, a soldier who refrained from such acts would, in accordance with the generally accepted principles of law, be acting properly. Desertion from an army which was guilty of these excesses could not be regarded as an ordinary offence, since punishment of it would in itself be excessive. Refusal to participate in genocide should also be regarded as being based partly on political and/or moral principles. Since there was a reasonable chance that ‘B‘ status would be accorded on these grounds, he stayed the operation of the decision to expel X. to Afghanistan, but not the expulsion to Pakistan, the country of first asylum (judgment of 12 September 1986, Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 523Google Scholar, discussed on p. 503).
111. The Judicial Division came to the same conclusion in the case of K.A. v. the State Secretary for Justice (judgment of 23 August 1988, Rechtspraak Vreemdelingenrecht (1988) No. 8, with note by J.J. Bolten). The Division first expressed these views in respect of Iranian deserters in the case of S.S. v. the State Secretary for Justice (judgment of 14 June 1988, Institute's Collection No. 3017).
112. This question was, however, considered at some length in the interim injunction proceedings instituted by K., see supra, n. 105.
113. Summarised in NJB (1989) p. 581 (No. 129) and DD (1989) No. 191.
114. Art. 95a reads: ‘Any person who, by violence or threat of violence, disperses a meeting of the Council of Ministers, forces it to take or refrain from taking any decision, removes a member from the meeting or intentionally prevents a member from attending that meeting or from freely and unrestrictedly discharging his duty there, shall be liable to a life sentence or to a term of imprisonment not exceeding twenty years or a fine of the fifth category’.
115. Art. 96 defines various offences, including conspiring to commit and/or preparing and instigating the offences referred to in Art. 95a.
116. For the text of Art. 129, see infra, under Held.
117. For the text of the title, see infra, under Held.
118. 359 UNTS p. 273; ETS No. 24; Trb. 1965 No. 9. Art. 3 reads: ‘(1) Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence’.
119. The description of offence I reads: ‘Der Beschuldigte H. schloss sich spätestens in Juni 1986 mit A.E., A.S. R.H. und anderen zu einer Gruppe zusammen, die es sich zum Ziel setzte, durch Brandanschläge (§ 308 Strafgesetzbuch) und Strommastanschläge (§ 316b Absatz 1 Strafgesetzbuch) die friedliche Nutzung der Kernenergie zu sabotieren. Weiteres Ziel der Gruppe war es, die Nutzung der Startbahn 18-West des Rhein- Main-Flughafens in Frankfurt am Main zu unterbinden Oder erheblich zu beeinträchtigen. Die von der Gruppe verübten Straftaten wurden in Vorbereitungstreffen gruppenintern diskutiert und gemeinschaftlich geplant. Dabei wurde auch der Inhalt von sogenannten Tatbekennungen festgelegt, die nach durchgeführten Anschlägen überwiegend unter wechselnden Gruppenbezeichnungen abgegeben wurden.’
120. Institute's Collection No. 2999.
121. See supra, n. 119.
122. The description of offence II (7) reads: ‘Anschlag auf ein Wahllokal am 25. Januar 1987 (Bundestagswahl) in Mörfelden-Walldorf mit Wegnahme der Wahlurne. Fünf vermummte Personen drangen in das Wahllokal ein – drei vermmumte sicherten währenddessen das Wahllokal von aussen – sprühten aus einer Wasserpistole Tränengasflüssigkeit in den Raum, was zumindest bei dem Wahlleiter und der Schriftführerin zu starkem Brennen in den Augen führte, ergriffen die Wahlbenachrichtigungsscheine, das Wählerverzeichnis und die Wahlurne und erbrachen diese vor dem Wahllokal. Uber sämtliche Unterlagen schütteten sie anschliessend Benzin und ver-brannten diese, so dass die örtliche Wahl am 1. Februar 1987 wiederholt werden musste. Die schriftliche Erklärung der Gruppe zu dieser Tat wurde unter dem Namen “Autonome Zählergruppe” abgegeben (§ 107 Absatz I, § 223, 223a Absatz 1 - in Form der gemeinschaftlichen Begehung -§ 274 Absatz 1 Nummer 1, § 304 Absatz 1, § 25 Absatz 2, § 52 Strafgesetzbuch).’
123. Summarised in ELD (1989) p. 392 and NIPR (1989) No. 439.
124. Trb. 1981 No. 188. Art. 1 reads: ‘Obligation to render assistance: (1) The Contracting Parties undertake to afford each other, upon request and in accordance with the provisions of this Treaty, mutual assistance in criminal investigations and proceedings. (2) Assistance shall include, but not be limited to: (a) locating persons; (b) serving documents; (c) providing records; (d) taking the testimony or statements of persons; (e) producing documents; (f) executing requests for search and seizure; and (g) transferring persons in custody for testimonial purposes’.
125. Art. 552k of the Code of Criminal Procedure reads: ‘(1) In so far as the request is founded on a treaty it shall be complied with as far as possible. (2) In cases where a request is reasonable though not founded on a treaty, and in cases where the relevant treaty does not make compliance compulsory, the request shall be met unless such compliance would be contrary to a statutory regulation or a direction issued by the Minister of Justice’.
126. Art. 10 reads: ‘(1) The Requested State may deny a request to the extent that: (a) execution of the request would prejudice the security or other essential public interests of the Requested State; (b) the request relates to a matter considered a political offence by the Requested State; (c) the request relates to the prosecution of a person who is immune from prosecution for the offence for which assistance is requested, by reason of the laws of the Requested State relating to prior jeopardy; or (d) the request does not comply with the provisions of this Treaty. (2) The Requested State may postpone execution of a request or grant it subject to conditions, if execution would interfere with an ongoing investigation or legal proceeding in the Requested State’.
127. Discussed on p. 104. Partially reproduced under RvdW (1989) No. 6.
128. Conclusion of 8/16 October 1979: Refugees without an asylum country, Geneva (15 (XXX)), GAOR A/31/12/Add.l p.17, Conclusions on the International Protection of Refugees, p. 31.Google Scholar
129. Conclusion of 10/20 October 1983: Protection of asylum-seekers in situations of large-scale influx, Geneva (22 (XXXII)), Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 298Google Scholar, GAOR A/36/12/Add.l p.17, Conclusions on the International Protection of Refugees, p. 48.Google Scholar
130. Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 542Google Scholar, discussed on p. 506.
131. The President referred here to a judgment previously given by him in the case of S.V.T. v. the State of the Netherlands, in which he had held that the contracting States were free, within the limitations of the prohibition of ‘refoulement’ (return) laid down in Art. 33 of the Convention, to refuse admission to refugees. Nor, in his view, did there exist any law-creating international practice which subjected this freedom to clear restrictions (judgment of 2 May 1986, Nieuwsbrief Asiel- en Vluchtelingenrecht (1986) p. 226Google Scholar, discussed on p. 203, NJ (1987) No. 264).
132. Art. 31 reads: ‘(1) The contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Art. 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. (2) The contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularised or they obtain admission into another country. The contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country’.
133. The fact that the refugees might be detained after being returned to the country of first asylum was not, therefore, important. In the case of S.R.K. v. the State of the Netherlands, the President of the District Court of Haarlem added that unwritten international law too did not prevent States from subjecting aliens who had been in their territory earlier to criminal sanctions on account of their irregular departure and/or re-entry (judgment of 7 April 1987, Nieuwsbrief Asiel-en Vluchtelingenrecht (1987) p. 344Google Scholar, discussed on p. 308, Rechtspraak Vreemdelingenrecht (1987) No. 9Google Scholar, with note by J.J. Bolten).
134. The Supreme Court held earlier in the case of M.N. v. the State of the Netherlands that when determining whether there was a country of first asylum it was not sufficient to conclude that the State Secretary had reasonable grounds for holding such a viewpoint. Instead, it was necessary to ascertain whether reasonable people could have no doubt that this question must be answered in the affirmative (judgment of 23 January 1987, RvdW (1987) No. 34; Nieuwsbrief Asiel- en Vluchtelingenrecht (1987) p. 115Google Scholar. Discussed on p. 103, NJ (1988) No. 54). The Supreme Court repeated this view, inter alia, in the case of M.R.F.K. et al. v. the State of the Netherlands (judgment of 18 March 1988, RvdW (1988) No. 61, Nieuwsbrief Asiel- en Vluchtelingenrecht (1988) p. 382Google Scholar, discussed on p. 326, NJ (1988) No. 908) with note by A.H.J. Swart).
135. In the case of M.R.F.K. et al. v. the State of the Netherlands, Amsterdam Court of Appeal held on appeal that in arriving at her decision the State Secretary had, in accordance with Recommendation 15, taken account of the asylum-seeker's intention in that he had been given the opportunity to request asylum in the Netherlands and, in special cases, of his intention to settle in the Netherlands. The Court of Appeal went on to hold that the statements by the State Secretary that her policy was in keeping with the international recommendations were no more than an expression of her view or conviction. The will of the State to be bound under international law by the Recommendation to a greater extent than followed from its character of recommendation could not be inferred either from these statements or from the statement of the State Secretary that she considered herself bound to pursue a policy on stays of execution of decisions which was in keeping with the Recommendations. Finally, Recommendation 22 (XXXII) of the Executive Committee did not, according to the Court of Appeal, relate to the interpretation of the expression ‘adequate protection against return’ but recommended that the State concerned adopt a given approach to refugees in its territory (judgment of 24 April 1986, KG (1986) No. 242, see also supra, n. 134).
In the case of S.V.T. v. the State of the Netherlands, the President of the District Court of Haarlem still took the view that although the text of Recommendation 15 was not binding under international law, it could nevertheless serve as a guideline in interpreting a policy in respect of the country of first asylum. The Recommendation was thus held not to be without significance under administrative law (judgment of 2 May 1986, see supra, n. 131).
136. The appellants appealed against the judgment of the Court of Appeal to the Supreme Court. The Supreme Court dismissed the appeal. The Court of Appeal's finding that it was permissible to return aliens to the country of first asylum on the first occasion if it was not certain beforehand that they would not be readmitted was challenged by M.K. et al. who argued that the Refugee Convention prohibited return in such cases. The Supreme Court held that this submission could not as a general rule be accepted as correct (judgment of 16 December 1988, RvdW (1989) No. 6, Rechtspraak Vreemdelingenrecht (1988) No. 16Google Scholar, with note by J.J. Bolten, NJ (1989) No. 753, with note by A.H.J. Swart, summarised in NJB (1989) p. 29 (No. 6) and ELD (1990) p. 90). On 22 August 1988 the Judicial Division of the Council of State dismissed M.K.'s appeal to be admitted as a refugee and to be granted a residence permit as a de facto refugee, see supra, pp. 407–410.
137. Note by G.L. Coolen, discussed by Stelling, M.F.J. in ‘De rechtstreekse werking van het humanitaire oorlogsrecht’ [The direct effect of the humanitarian law of war], NJB (1989) pp. 324–326Google Scholar. Summarised in NJB (1988) p. 1059 (No. 8).
138. Art. 7 reads: ‘(1) No one shall require prior permission to publish thoughts or opinions through the press, without prejudice to the responsibility of every person under the law. (2) Rules concerning radio and television shall be laid down by Act of Parliament. (3) No one shall be required to submit thoughts or opinions for prior approval in order to disseminate them by means other than those mentioned in the preceding paragraphs, without prejudice to the responsibility of every person under the law. The holding of performances open to persons younger than sixteen years of age may be regulated by Act of Parliament in order to protect good morals. (4) The preceding paragraphs do not apply to commercial advertising’.
139. Art. 10 reads: ‘(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 or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’.
140. Mention was made at point 4 of the fact that during a TV panel discussion (on 24 August 1981) Stelling had publicly compared the judgment of the Supreme Court in the VW. case (cf., 13 NYIL (1982) pp. 408–410) to the actions of courts in Nazi Germany, in so far as the Supreme Court had refused to give judgment in that case, and also that in the same panel discussion he had accused the Prime Minister and the Minister of Defence of deceit. Stelling's highest superior, the Secretary General of the Ministry of Defence, had given notice of his disapproval of this conduct by means of an official communication dated 8 September 1981.
141. Stelling had appealed against (a) the reply of the Minister of Defence of 15 September 1983 to questions by a member of the Lower House of Parliament; (b) the present notice of 22 June 1982; (c) the decision of the Minister of Justice regarding his placement; (d) the communication of the Secretary General of 8 September 1981 disapproving of his statements in the TV panel discussion as referred to in n. 140; and (e) the assessment of his book review by the Director of the Air Force Staff School and his refusal to given written reasons. By judgment of 6 December 1984, the Public Service Tribunal at The Hague held that the appeals on points (a), (b) and (e) were inadmissible and dismissed the appeals on points (c) and (d). The Central Appeals Court upheld this judgment, with the exception of the dismissal of (c). Also published in AB (1987) No. 149, with note by H.P.J.A.M. Hennekens.
142. The conventions quoted and the arguments employed more or less coincided with those quoted and employed in the case of H.M.H. v. Public Prosecutor, Supreme Court, 22 December 1986, 20 NYIL (1989) pp. 360–364.
143. 15 NYIL (1984) pp. 450–451.
144. 596 UNTS p. 261; Trb. 1965 No. 40. Art. 43 reads: ‘(1) Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions’.
145. KG (1987) No. 166; partially reproduced in NIPR (1987) No. 237.
146. Art. 5(9) reads: ‘Consular functions consist of: …(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending State in cases of succession mortis causa in the territory of the receiving State in accordance with the laws and regulations of the receiving State’.
147. Art. 33 reads: ‘The consular archives and documents shall be inviolable at all times and wherever they may be’.
148. Art. 1 reads: ‘(1) For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (a) … (k) “consular archives” includes all the papers, documents, correspondence, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card indexes and any article of furniture intended for their protection or safekeeping‘. The President referred at all times to the Dutch translation.
149. The District Court had already referred in consideration l(i) to the Vienna Convention which had entered into effect for both the Netherlands and Cape Verde, and in particular to Art. 43(1).
150. Partially reproduced in NIPR (1987) No. 281, summarised in ELD (1989) p. 412.
151. For the text of para. 826, see infra, under Held.
152. ILM (1969) p. 229; Trb. 1969 No. 101; Trb. 1979 No. 56 (English official text). Art. 55 reads: ‘Subject to the provisions of the second paragraph of Article 54 and of Article 56, this Convention shall, for the States which are parties to it, supersede the following Conventions concluded between two or more of them: … the Convention between the Kingdom of the Netherlands and the Federal Republic of Germany on the mutual recognition and enforcement of judgments and other enforceable instruments in civil and commercial matters, signed at The Hague on 30 August 1962 …’.
153. 547 UNTS p. 173; Trb. 1963 No. 50.
154. In late 1976 the FRG realised that Menten had fraudulently posed as a war victim. This realisation resulted from the prosecution started against Menten in the Netherlands in 1976 for having committed war crimes and crimes against humanity, see 9 NYIL (1978) pp. 337–348, 10 NYIL (1979) pp. 514–520, 11 NYIL (1980) pp. 334–336, 12 NYIL (1981) pp. 342–349 and 13 NYIL (1982) pp. 401–407.
155. Stb. 1965 No. 92. Art. 7 reads: ‘The District Court to whose President the request for authorisation of enforcement is directed shall take cognizance of the action referred to in Art. 14(2) of the Treaty. This action shall suspend the operation of the enforcement, unless the District Court decides otherwise. Art. 14 of the Dutch-German Enforcement Treaty of 1962 reads: ‘(1) The debtor may raise the following objections to a decision granting execution: (a) that execution should not have been granted; (b) that one of the grounds for refusal specified in Article 2, sub-paragraph (c), is present; (c) that he is in a position to object to the claim itself on grounds which did not arise until after the judicial decision had been rendered. (2) The proceedings in which these objections may be raised shall be governed by the law of the State in which the decision is to be enforced’.
156. Partially reproduced in NIPR (1983) No. 367.
157. Partially reproduced in NIPR (1985) No. 183.
158. Art. 1 reads: ‘This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal’.
159. In its judgment of 19 September 1984 the District Court held that in respect of its reclamation action the FRG had been right in applying to the special German court, which had exclusive jurisdiction under German law to deal with claims against Germany for war compensation, and not to the Dutch courts.
160. The Court of Appeal used the original Dutch text of the judgment.
161. Art. 37(2) reads: ‘An appeal against the decision authorising enforcement shall be lodged in accordance with the rules governing procedure in contentious matters: …in the Netherlands, with the “arrondissementsrechtbank”. The judgment given on the appeal may be contested only by an appeal in cassation …’ This right to appeal in cassation was never exercised.
162. Note by E.A. Alkema, summarised in NJB (1988) p. 398 (No. 52).
163. For the text of Art. 5, see supra, n. 64.
164. For the text of Art. 2(1), see supra, n. 69.
165. 660 UNTS p. 195; Trb. 1966 No. 237. Art. 2(1)(a) reads: ‘States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation’. Art. 5 reads: ‘In compliance with the fundamental obligations laid down in Art. 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) …(d) other civil rights, in particular: (i) the right to freedom of movement and residence within the border of the State; (ii) the right to leave any country, including one's own, and to return to one's country; (iii) the right to natonality;…’.
166. For the text of Art. 26, see supra, n. 9.
167. Trb. 1969 No. 99, p. 105; GAOR 3rd Sess. Part I, p. 71; YUN (1948–1949) p. 535. Art. 7 reads: ‘All are equal before the law and are entitled without any discrimination to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’. Art. 15 reads: ‘(1) Everyone has the right to nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’.
168. For the text of Art. 14, see supra, n. 10.
169. ILM (1968) p. 978; ETS No. 46; Trb. 1964 No. 15. Art. 2 reads: ‘(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own’.
170. Art. 12 reads: ‘(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2) Everyone shall be free to leave any country, including his own’.
171. Reported under RvdW (1988) No. 52.
172. Note by P.W.A. Gerritzen-Rode.
173. With English translation: note by J.M. van Dunné, with English summary.
174. Note by S.C.J.J. Kortmann.
175. Notes by J.H. Nieuwenhuis and J.C. Schultsz, discussed by Wenckstern, M. in 53 RabelsZ (1989) p. 699–704Google Scholar, partially reproduced in NIPR (1989) No. 102 and NJB (1988) p. 1277 (No. 150), discussed in NILOS Newsletter (1988) No. 1.
176. ILM (1977) p. 265; Trb. 1977 No. 33.
177. Trb. 1985 No. 125.
178. 15 NYIL (1984) pp. 471–484.
179. 19 NYIL (1988) pp. 496–503.
180. The ground of appeal, with its parts, was published in RvdW (1988) No. 150.
181. Art. 2 reads: '(1) The discharge of chloride ions into the Rhine will be reduced by at least 60 kg/s of chloride ions (annual average). This objective will be achieved gradually and in French territory. (2) In order to achieve the objective indicated in the preceding paragraph, the French Government will, under the conditions set forth in Annex I of this Convention, install an injection system in the sub-soil of Alsace in order to reduce over a period of ten years the discharges from the Alsace Potassium Mines by an initial quantity of 20 kg/s of chloride ions. The installation shall be constructed as soon as possible, no later than 18 months after the entry into force of the Convention. The French Government will report regularly to the International Commission for the Protection of the Rhine against Pollution (hereinafter designated “the International Commission”). (3) The Contracting Parties are agreed that the French Government will, after consideration of the results obtained during the initial stage described in paragraph 2, take all steps necessary to achieve before January 1, 1980 the objective set forth in paragraph 1, by injection into the Alsatian sub-soil or by other means, subject to an agreement on the technical terms and conditions of the project and on the financing of the costs relating thereto. (4) The French Government will present an overall plan on the technical terms and conditions and the costs of the measures to be taken pursuant to paragraph 3! The time limits agreed in Art. 2 were altered by an exchange of letters of 29 April/4 May 1983 (Trb. 1983 No. 118., cf., also 17 NYIL (1986) p. 211) and the procedure to be followed was altered by a statement by the heads of the delegations representing the governments which are parties to the Convention of 11 December 1986, temporary storage being decided upon instead of injection (Trb. 1987 No. 54, also 18 NYIL (1987) p. 293).
182. The day after the Supreme Court gave judgment, the three market gardeners announced that they had reached an out-of-court settlement with MDPA. In the settlement, they undertook to waive any further claims against MDPA in exchange for payment of Dfl. 3,750,000 in compensation to them by MDPA. Cf., also Rousseau, Ch., ‘Chronique des faits internationaux’ RRGIP (1989) p. 134Google Scholar, which stated that the settlement had been reached on 8 September 1988.
183. Summarised in Jaarverslag Nationale Ombudsman (1988) p. 303Google Scholar (88/654) and Ad-vocatenblad (1989) pp. 113–116.Google Scholar
184. Art. 153 of the StPO (Strafprozessordnung, i.e., Code of Criminal Procedure) permits the German Public Prosecutions Department to refrain from prosecution where an offence has been committed outside the Federal Republic.
185. Cf., 18 NYIL (1987) p. 268.
186. According to the National Ombudsman, the reports in question comprised (1) a report concerning three German suspects which had been handed over to German investigating officials at Bergh border post in September 1984 when custody of these suspects was transferred to them, and (2) a report drawn up by the police at Tegelen concerning persons of Italian and German nationality, which had been forwarded to the Public Prosecutions Department at Arnhem for the latter's information and which the latter had handed over on 14 November 1984 to one of its counterparts in Germany which was currently collecting information about D. in connection with the above-mentioned request from Spain for clarification of the offences referred to in the warrant for D.'s arrest.
187. Cf., 18 NYIL (1987) pp. 268–269.
188. D. was sentenced by the Court of Appeal to six months' imprisonment, with four months suspended, for possessing a substantial quantity of soft drugs. Other similar cases had been joined with this prosecution ad informandum, as a consequence of which these other cases were likewise dealt with by the court.
189. These reports, which concerned a total of six German nationals, had been transferred to the German judicial authorities in connection with official requests by the Netherlands for a transfer of proceedings. It was clear from the reports that the persons concerned had bought drugs from D.
190. 18 NYIL (1989) p. 269.
191. This description of the facts appears as such in the judgment of the National Ombudsman, from which it is therefore derived.
192. According to the National Ombudsman, D. had adduced the following in his defence before the Bundesgerichtshof: ‘(a) The offences in respect of which he was being prosecuted in Germany did not entirely correspond to those in respect of which the Spanish authorities had granted his extradition, (b) As the offences consisted solely of offences committed in the Netherlands by a Dutch national, the German judicial authorities should have refrained from prosecuting him. There was no reason to apply the universality principle; applying it constituted an impermissible intervention in the internal affairs of another State, (c) In accordance with the ne bis in idem principle, he ought not again to be charged in the Federal Republic with offences committed before October 1981, of which he must be deemed to have been already convicted in the Netherlands, (d) Impermissible use had also been made of Dutch official police reports. Information from them should therefore not be used in evidence.’
According to the National Ombudsman, the Bundesgerichtshof decided as follows with regard to these points: ‘Re a.: The rule which applies in extradition law that the person extradited must not be prosecuted for any offences other than those in respect of which extradition was granted was not violated here. The Spanish authorities granted the extradition without any reservation for the purpose of prosecution for trafficking in drugs between the Netherlands and Germany as referred to in the arrest warrant of Düsseldorf Amtsgericht of 15 November 1984. Responding to D.'s defence, the Spanish court expressly considered that even if all the offences had been committed outside the Federal Republic, this would not have constituted any impediment to the granting of extradition. Re b.: Under German law, the universality principle applies to drugs offences. There is no rule of international law which prevents the application of this principle. However, there must be grounds for applying the principle in the specific case. In this case grounds for doing so lie firstly in the importance of combating drugs trafficking worldwide and secondly in the defence of German interests, which had been prejudiced by D. in that for years he had sold substantial quantities of drugs to German nationals and nationals of other countries who subsequently sold these drugs to customers in the Federal Republic. Re c.: Under German law, there is no impediment to the prosecution of offenders for offences for which the suspect has already been tried abroad. In this case there is all the less reason to raise such an impediment because the foreign court did not expressly give judgment on the charges in question. Re d.: The Landgericht wrongly ignored the fact that Dutch official police reports were supplied to German investigating officials only for information purposes and not for use as evidence, and in particular not for use as evidence in criminal proceedings against D. The Dutch Minister of Justice asked for the reports in question to be returned and refused to provide any form of legal assistance in this case, as he was empowered to do by treaty. Documents supplied purely for information purposes and not through formal international legal assistance channels can in any case not be used as evidence if and insofar as the State which has supplied the documents has clearly indicated that it objects to such use being made of them, in so far as it refuses to provide legal assistance in the case and in so far as such a refusal is justified pursuant to the relevant treaties. For this reason the judgment of the Landgericht cannot be upheld:’ Cf., also NJW (1987) p. 2168, discussed by Kokott, J. in ZäoRV (1988) pp. 723–724.Google Scholar
193. The Landgericht considered trafficking in at least 10 kg of hashish to have been proven. For a survey of the facts and comments on the judgments and State practice see also Paridaens, D., ‘Dost krijgt opnieuw een zware pijp te roken’ [More hard time in Germany for Dost], Recht en Kritiek (1988) pp. 216–228.Google Scholar
194. D. appealed in cassation to the Bundesverfassungsgericht in Karlsruhe against the judgment of the Landgericht.
195. As regards the institution of the National Ombudsman, cf., ten Berge, J.B.J.M., ‘The National Ombudsman in the Netherlands’, 32 NILR (1985) pp. 204–224CrossRefGoogle Scholar, and Kirchheiner, H.H., ‘The National Ombudsman in a Democratic Perspective’, 32 NILR (1985) pp. 183–203.CrossRefGoogle Scholar
196. Cf., infra, under Held, 8.
197. The National Ombudsman did not investigate D.'s complaint that the ministers had supplied incorrect information, which was prejudicial to him, to the Upper and Lower Houses of Parliament in connection with the aforementioned reply to parliamentary questions submitted in writing. The Ombudsman justified this by reference to the principle of parliamentary inviolability as provided for by Art. 71 of the Constitution. Similar reasoning was previously adopted by the President of The Hague District Court when required to give judgment in interlocutory injunction proceedings on a similar claim by D. alleging tort (judgment of 26 February 1987, KG (1987) No. 134).
198. The Minister for Foreign Affairs wrote his letter in response to a request from D.'s counsel of 27 August 1976, after D. had been sentenced by Kleve Landgericht to a term of imprisonment of 3 years and 9 months on 11 May 1976 for drugs trafficking (cf., Krikke, A., ‘De zaak Dost – enige opmerkingen over de rechtsmacht van de Bondsrepubliek bij de bestrijding van verdovende middelen’ [The Dost case – some remarks on the jurisdiction of the Federal Republic in relation to the fight against narcotics], Recht en Kritiek (1976) pp. 249–267Google Scholar and Orie, A.M.M., ‘Internationaal strafrechtelijke aspecten van de Dost-affair’ [International criminal law aspects of the Dost affair], NJB (1976) pp. 1045–1059)Google Scholar. D.'s appeal against this judgment was dismissed by the Bundesgerichtshof on 20 October 1976 (cf., Fontes Juris Gentium, Series A, Sectio II, Tomus 8 (1976–1980) No. 11; NJW (1977) p. 507, discussed by Kischlat, W.D. in ZaöRV (1977) pp. 794–795)Google Scholar. In the letter, the passage referred to is preceded by the following: ‘I cannot agree with your reasoning with regard to the validity of the Single Convention on Narcotic Drugs of 1961. Irrespective of the fact that the Single Convention does not compel States to introduce the universality principle into their domestic criminal law concerning the drugs offences listed in the Convention, the question as to whether the German legislature is empowered under international law to introduce the universality principle into its domestic legislation for offences of this type must be answered in the affirmative. Particularly if the scope of the application of criminal law is based on efforts to achieve international coordination in combating certain types of crime, which efforts underlie an existing convention, no general principle of international law can be adduced which would prevent individual States from basing prosecutions for those types of crime on the universality principle, even if the relevant convention does not compel them to do so. Thus there can be no doubt about the competence of the German judicial authorities in such cases as this one’.
199. Cf., 19 NYIL (1988) pp. 324–325.
199a. Cf., supra, n. 188.
200. Cf., supra, n. 199.
201. Partially reproduced in NIPR (1988) No. 302.
202. De Martens NRG, 3rd series, Vol. VI; ELD (1982) p. 480; 199 Parry CTS p. 17; Stb. 1912 No. 285.
203. Note by J.C. Schultsz, RvdW (1981) No. 56; ELD (1982) p. 38.
204. Trb. 1977 No. 59.
205. Cf., as regards Berlin: Amsterdam District Court, 25 November 1975, 8 NYIL (1977) pp. 253–255.
206. Under the German legislation which applied in 1948, German women who married foreign nationals lost their German nationality. The Court of Appeal corrected the District Court's statement that the wife was a national of the ‘Federal Republic’ in 1948. According to the Court of Appeal, the Federal Republic did not yet exist at that time. Thus the wife was then a German national.
207. Under Art. 2(2) of the Marriage to Enemy Nationals (Consequences) Decree No. II of 17 November 1945 (Stb. 1945 No. F. 278), an enemy national of the female sex who married a Dutch national did not thereby acquire Dutch nationality. This Decree was rescinded by Act of 29 December 1950 (Stb. 1950 No. K 658). Under this Act, which entered into force on 12 January 1951, the aliens concerned acquired Dutch nationality after all, with effect from the date of their marriage.
208. Discussed in NILOS Newsletter (1988) No. 1, p. 5.Google Scholar
209. Cf., as regards the fortunes of the two ships, Lagoni, R., Archiv des Völkerrechts (1988) pp. 273–274.Google Scholar
210. Note by J.G. van der Wielen, partially reproduced in SEW (1989) p. 190, with note by M.R. Mok.
211. For the text of Art. 2, see infra, under n. 213.
212. Art. 1 reads: ‘Art. 1. – 1. Without prejudice to the provisions of Article 2, section 2, the following definitions shall apply in this Act and provisions pursuant to it: goods: movable corporeal property, with the exception of domestic and foreign legal tender; …’
213. The Tribunal described the system at 2. as follows: ‘Article 2, section 1, opening words and (a) of the Import and Export Act provides, inter alia, that if the interests of the international legal order as such so require, at the discretion of the Crown, then rules may be established by an order in council [algemene maatregel van bestuur] relating, inter alia, to the export of specified commodities. Under Article 2, section 2, opening words and (a) of the Act, these measures may include a prohibition on exporting such commodities without a licence from the minister referred to in the instrument concerned. Article 2 in conjunction with Article 1 of the Export Decree makes it an offence to export the goods referred to in the annex to that Decree without a licence from the Minister for Economic Affairs.’.
214. The view that, for the purposes of the applicability of the statutory provisions, it was irrelevant whether the goods to be exported were components or end products was confirmed by Amsterdam District Court in the criminal proceedings brought against Muiden Chemie and J.U.R.A.d.G. for exporting gunpowder and cartridge cases to Iran without a licence in the years 1984–1987, stating that the goods were destined for Yugoslavia, Austria and Great Britain. In determining the size of the fine, the District Court took into account the fact that Muiden Chemie had already been substantially affected by the provisional measure imposed by the Public Prosecutions Department pursuant to Art. 28 of the Economic Offences Act, by the refusal on behalf of the Ministry to grant export licences and by the publicity in the media. With regard to G., who had de facto directed the transactions, account was taken of the fact that he had already suffered considerably as a result of his dismissal. Muiden Chemie was sentenced to pay three fines of Dfl. 1,000,000 each, Dfl. 700,000 of each fine being suspended for an operational period of two years. G. was sentenced to pay three fines of Dfl. 20,000 each or to serve six months’ detention, Dfl. 10,000 of each fine being suspended for an operational period of two years (judgment of 28 December 1988, Institute's Collection No. 3027). In this case, Muiden Chemie had initially lodged a petition against the writ of summons. Both the District Court and, on appeal, Amsterdam Court of Appeal, rejected this petition. (Court of Appeal: judgment of 29 October 1987, Institute's Collection No. 2967). The Supreme Court upheld the judgment of the Court of Appeal. It particularly shared the latter's view that if the genuine final destination proved to be different from that stated in the documents (i.e., Iran rather than Yugoslavia), the relevant goods had been exported without a valid licence (judgment of 31 May 1988, NJ (1989) No. 61, DD 1988 No. 403). In the case of the Public Prosecutions Department v. NV Optische Industrie ‘De Oude Delft’, The Hague Court of Appeal, giving judgment on appeal, likewise found against the exporter (who was thereupon fined Dfl. 25,000) for exporting night-glasses to Iraq, whereas a licence had been issued for export to Great Britain and Portugal, to which countries the goods had indeed initially been sent (judgment of 25 November 1988, Institute's Collection No. 3028).
215. Cf., the statement of the State Secretary for Economic Affairs made in Parliament on 23 June 1988, 20 NYIL (1989) pp. 243–244.