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Netherlands judicial decisions involving questions of public international law, 1970–1971 *
Published online by Cambridge University Press: 07 July 2009
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- Section C: Documentation
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- Copyright © T.M.C. Asser Press 1972
References
1. Stb. 1965 No. 40.
2. Annotated in SEW (1971) p. 485.
3. 298 UNTS p. 75; Trb. 1957 No. 91. Art. 169 reads: “If the Commission considers that a Member State has failed to fulfill any of its obligations under this Treaty, it shall give a reasoned opinion on the matter after requiring such State to submit its comments. If such State does not comply with the terms of such opinion within the period laid down by the Commission, the latter may refer the matter to the Court of Justice”.
4. Stb. 1966 No. 387, as amended by Decree of 15 July 1969, Stb 969 No. 305, giving effect to the Aliens Act of 13 January 1965, Stb. 1965 No. 40. Art. 95(1) (2) of the Decree reads as follows:
“1. A favoured EEC national may be refused a residence permit only if he constitutes a danger to public order, national security, or public health.
2. Refusal to extend the period of a residence permit of a favoured EEC national, as well as the withdrawal of such permit, may occur only if he has violated public order, presents a danger to national security, or if he has supplied false information on the basis of which a residence permit or an extension thereof was granted him”.
5. The Hague Convention relating to Civil Procedure of 17 July 1905; French text in 2 De Martens, NRG (3e série) p. 243; 99 BFSP p. 990; Stb. 1909 No. 120.
6. Convention relating to Civil Procedure, The Hague, 1 March 1954; 286 UNTS p. 265; Trb. 1954 No. 40.
7. For text, see under ‘Held’.
8. Act of 16 September 1896, Stb. 1896 No. 156. Art. 152(1) reads: “All aliens, whether plaintiffs or third parties are bound to give security for costs, damages and interests which they might be awarded at the request of the opposing party before this party must answer the complaint”.
9. Art. 17(1) reads: “No security or deposit of any kind may be imposed, by reason of their status as foreigners or of the absence of domicile or residence in the country, upon nationals of one of the contracting States who are domiciled in one of such States and are plaintiffs or third parties before the courts of another such State”.
10. 360 UNTS p. 130; Trb. 1957 No. 22. The Convention came into force for the Netherlands on 11 July 1962.
11. According to Art. 95 of the Act on the Organization of the Judiciary (Stb. 1827 No. 20) the Public Prosecutor to the Supreme Court may “in the interests of law”, appeal in cassation to the Supreme Court against decrees and decisions of Courts of Appeal, District Courts and Local Courts (cassatie in het belong van de wet). This provision aims to bring about uniform application of the law. Such a decision of the Supreme Court does not affect the rights of the parties (art. 98 of the Act on the Organization of the Judiciary).
12. Stb. 1957 No. 233. Art. 10 reads: “With the exception of stateless residents, aliens are excluded from legal aid unless otherwise provided by international agreement”.
13. The Public Prosecutor based himself on a decision of the District Court of Roermond of 23 April 1970, NJ 1970 No. 373. This decision is dealt with in 2 NYIL (1971) p. 236.
14. Art. 15(1) reads: “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationality … may be admitted as refugees by Our Minister”.
15. 189 UNTS p. 137; Trb. 1951 No. 131. Art. 1(A)(2) reads: “For the purposes of the present convention, the term ‘refugee’ shall apply to any person who: (1) … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”
16. See also 7.25 Ralph J. Waver v. the State of the Netherlands, infra p. 292.
17. Waver originally applied for a residence permit, which was rejected by the head of the Haarlem local police on 9 March 1971, but later nevertheless issued by the Minister of Justice by decision of 2 July 1971.
18. 606 UNTS p. 267; Trb. 1967 No. 76.
19. Stb. 1967 No. 139.
Art. 4 reads: “Netherlands nationals may not be extradited”.
20. Art. 5(1) reads:
“Extradition shall only be granted:
a) to aid a criminal investigation by the authorities of the requesting Party in connection with suspicions that the person whose extradition is requested has been guilty of a criminal offence for which, both under the laws of the requesting Party and of the Netherlands, a prison sentence of at least one year may imposed;
b) to facilitate the person whose extradition is requested serving a prison sentence of four months or more in respect of an offence dealt with under a) on the territory of the requesting Party”.
21. 359 UNTS pp. 273–303; Trb. 1965 No. 9.
Art. 2(1) reads: “Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occured or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months”.
22. With comment by A.L. Melai.
23. Trb. 1962 No. 97 Art. 3(1) reads: “Extradition will not be granted if the criminal offence for which it is requested is shown by the requested Party to be a political offence or an offence with political connections”.
24. Art. 11(1) reads: “Extradition will not be granted for criminal offences of a political nature including offences with political connections”.
25. 213 UNTS. 221; Trb. 1951 Nr. 154. For the text of Arts. 3 and 8 see considerations under ‘Held’.
26. Also reported in AA (1971) p. 31 with comment by F.H. van der Burg.
27. Decree of 7 June 1960, Stb. No. 345, including technical, sanitary, medical and administrative measures for the implementation of the Water Supply Act (Waterleidingwet). Art. 4(3) reads: “Without prejudice to the right of the proprietor to add substances to water for the preparation of drinking water, he is not allowed, without the consent of the Minister, to add substances to the water with the objective to administer them to the consumers by means of the drinking water”.
28. Art. 8(2) reads: “There shall be no interference by a public authority to 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 and morals, or for the protection of the rights and freedoms of others”.
29. Stb. 1964 No. 512. Art. 54(1) reads: “The taxable income will … be reduced by one third of the included earnings of tax-payer's wife …”
30. 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”.
31. Art. 6(3) (a) and (b) reads:
“3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and course of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence”.
32. See supra p. 284 n. 31.
33. 213 UNTS p. 262; Trb. 1952 No. 80. Art. 2 reads: “No person shall be denied the right of 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 philisophical convictions”.
34. A special system of exercises designed by Bess M. Mensendieck.
35. District Court of The Hague, 23 October 1967; Court of Appeal, The Hague, 21 October 1968; Supreme Court, 31 October 1969; Court of Appeal, Arnhem, 10 November 1970.
36. Art. 9 reads:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
37. Art. 6 reads: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
38. With comment by G.J. Scholten.
39. Art. 13 reads: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.
40. 399 UNTS p. 189; Trb. 1956 No. 84.
41. The Court mentioned the Dutch translation. It held that it has neither been stated nor made otherwise plausible that this translation is different from the authentic English or French text.
42. 241 UNTS p. 129; Trb. 1954 No. 126 and Trb. 1956 No. 27.
43. 69 UNTS p. 74.
44. Act of 21 December 1949, 69 UNTS p. 194; Stb. 1949 No. J. 570.
45. 199 UNTS p. 67; Trb. 1951 No. 114.
46. See also 4.52 R.J. Waver v. the State Secretary of Justice, supra p. 277.
47. Stb. 1953 No. 438 Art. 3(2) reads: “2. If an accused claims that he is not the wanted person, or that he is not subject to the jurisdiction of the foreign State, … then he should be brought immediately before the Instructing Judge; the latter comes to a decision after examination of the accused, unless he discovers, that the accused is not subject to the jurisdiction of the state of origin. In such a case he gives advice to Our Minister of Justice. The latter comes to a decision as soon as possible and sends this decision immediately to the Instructing Judge”.
48. Stb. 1953 No. 531.
49. 10 June 1948; 191 UNTS p. 20, Stb. 1949 No. J 586 p. 296.
50. 164 UNTS p. 113; Stb. 1949 No. J. 586 p. 4.
51. Bijl. Hand. II 1949–1950, 1484, p. 4.
52. Stb. 1954 No. 376.
53. For texts see under ‘Held’.
54. 59 BFSP p. 470; 20 De Martens, NRG, p. 355; Trb. 1955 No. 161.
55. The Sollicitor-General refers to the preamble and Trb. 1955 No. 161 p. 156.
56. The Sollicitor-General refers to Art. 45 Revised Convention on Rhine Navigation, as well as to Art. 356 of the Treaty of Versailles included in Trb. 1955 No. 161 p. 94.
57. 556 UNTS p. 89; Trb. 1964 No. 99.
58. Art. 1129 reads:
“1. Any heir is deemed to have succeeded immediately on the death of the decedent to the property allotted to him.
2. No heir is thus considered ever to have had ownership over other portions of the estate”.
59. Art. 1(2) reads: “For the purposes of the present Agreement Netherlands property, rights and interests referred to in paragraph 1 of this Article shall mean property, rights and interests held both at the date of the relevant Czechoslovak measure and at the date of signature of the present Agreement by Netherlands physical persons, or juridical persons established and having their seat in the Kingdom of the Netherlands”.
60. 474 UNTS p. 207; Trb. 1959 No. 137. Art. 1(5) reads:
“Decisions rendered in civil and commercial matters by the courts of one of the two States shall have the force of res judicata in the other State if they satisfy the following conditions: …
5. That, in the event of a judgment by default, the summons giving notice of the proceedings was served on the defaulting party in good time”.
Art. 3(1) reads: “Judicial decisions rendered by the courts of one of the two States and satisfying the conditions set forth in art. 1 may, after having been declared enforceable at the request of any party concerned, give rise' in the other State to distraint on movable or immovable property or to formal acts such as registration in the public records”.
Art. 5(3) reads: “The party invoking the decision shall produce:….
3. The original or a certified true copy of the summons served on the defaulting party and any documentary evidence that the summons reached him in good time”.
61. Mentioned in 1 NYIL (1970) pp. 238–239.
62. Comment in WPNR (1972) p. 198; 18 NTIR (1971) p. 364.
63. Leave for conservatory attachment.
64. Treaty concerning the reciprocal recognition and enforcement of judicial decisions and other executory instruments in civil and commercial matters, 30 August 1962; 547 UNTS p. 173; Trb. 1963 No. 50.
65. Art. 4(2) reads: “However, the courts of the State in which the decision was rendered shall not be recognized as competent in the cases specified in paragraph (1), sub-paragraphs (a)-(d), (h) and (i), if sole jurisdiction in the action which gave rise to the decision vests in the court of the State in which the decision is relied upon or the courts of the third State; this shall apply in particular to actions whose subject-matter is a right in immovable property or a claim arising out of a right in such property”.