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Netherlands judicial decisions involving questions of public international law, 1977 – 1978
Published online by Cambridge University Press: 07 July 2009
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References
1. Summarized in ELD (1978) No. 392.
2. De Martens NRG 3rd series Vol. 21 p. 782; Stb. 1929 No. 405.
3. Summarized in ELD (1978) p. 424.
4. 182 UNTS p. 238; Trb. 1951 No. 81.
5. With note by H.H. Maas.
6. Stb. 1945 No. F 214.
7. Article 14: “Any person who maintains an office or branch also has residence in the place concerned in respect of all matters concerning such an office or branch”.
8. Trb. 1969 No. 101.
9. 596 UNTS p. 261; Trb. 1965. No. 40.
10. The Rotterdam Local Court delivered a differing judgment in P.A.v.H. v. the United States of America. The plaintiff, a Dutch national, had been employed in the administrative service of the American Consulate-General in Rotterdam since 1 November 1967, and was summarily dismissed on 13 April 1977. Since in the event of summary dismissal the Unemployment Insurance Act presumes the contract of employment to have been terminated with the agreement of the employee, which implies that he does not qualify for unemployment benefit, it is necessary for him to satisfy the Court that he contested his dismissal if he is to qualify for such benefit. The plaintiff, therefore, summonsed the defendant and claimed damages amounting to the salary lost since the time of dismissal. He alleged that the defendant had failed to give the agreed nine weeks' notice and had failed to state urgent reasons. The plaintiff had refused to consent to the dismissal. After the plaintiff had obtained permission to proceed in default of the defendant's appearance on 1 November 1977, the Court decided in favour of the plaintiff on 15 November (Institute's Collection No. 1271).
11. Maas observes in his note that the phrase “including persons employed in the Netherlands in the service of a foreign state” is not a part of Article 2(1) BBA, but is, in his view, a conclusion of the Local Court which is open to doubt.
12. Note by J.A. Peters.
13. Under Article 14(1)(k) of the Unemployment Benefit Act, unemployment benefit may be reduced below the normal amount (75% of the previous wage), if the unemployment is not involuntary.
14. Article 14(1)(g) of the Unemployment Benefit Act allows reduction of unemployment benefit below the normal level, if the unemployment is caused by the employee's own fault.
15. The decision was based, inter alia, on the following considerations; “Whereas the decision appealed against must therefore be annulled and there is no need to go into the other pleadings of the appeal;
II. On the submissions seeking reinstatement:
Whereas the normal effect of the annulment of a decision is to restore the parties to the status quo ante: whereas in the present case it should therefore imply Mr. G's reinstatement; Whereas however in accordance with Art. 4.23 of Annex IX to the NATO Civilian Personnel Regulations ‘Where the … Supreme Commander concerned confirms that the execution of an annulment decision would give rise to substantial difficulties, the Appeals Board shall instead determine the amount of compensation to be paid to the appellant for the injury sustained’: whereas the Supreme Commander Allied Forces Europe (SACEUR) has invoked this text: whereas in consequence and in any case there is no cause to order the reinstatement of Mr. G.;
III. On the request for compensation
Whereas Mr. G. was employed by the SHAPE Air Defense Technical Centre and then by the SHAPE Technical Centre from March 1958 to July 1974; whereas he was suspended from duty without loss of pay from July 1974 to July 1975; whereas, in view of the length of service, his age, family circumstances and present activities, the compensation payable in respect of the injury suffered by him by reason of his dismissal may fairly be assessed at twelve months’ emoluments calcultated on the basis of the regulations in force in July 1975;”
16. Under Art. 17(1) of the Unemployment Benefit Act the unemployment benefit is reduced by, inter alia, income connected with the termination of employment in so far as such income is earned in the period over which the employee is entitled to benefit.
17. The relevant passage of the letter reads: “After consultation with the President of the Board, I am instructed to confirm that the sum awarded is a compensation for the injury you suffered by reason of your dismissal after serving with STC from 1958. That this compensation was expressed in ‘months of emoluments’ represents a purely practical means of calculation which the Board has already used in other cases where a compensation was awarded”.
18. Institute's Collection No. 1295.
19. The Council recalled J.G.G.'s conviction by the Supreme Court on 15 June 1976, 8 NYIL (1977) pp. 272–273.
20. By Decree of the Reichsminister des Innern of 10 July 1940, published in the Deutscher Reichsanzeiger of 12 July 1940, by virtue of the provisions of the Act of 14 July 1933 (Reichsgesetzblatt, 1933 No. 480).
21. Art. 116(2): “Former German citizens who, between 30 January 1933 and 8 May 1945, were deprived of their citizenship for political, racial or religious reasons, and their descendants, shall be regranted German citizenship on application. They shall be considered as not having been deprived of their German citizenship if they have established their domicile (Wohnsitz) in Germany after 8 May 1945 and have not expressed a contrary intention”. See Peaslee, A.J., Constitutions of Nations, 1968, Vol. III, Europe p. 391.Google Scholar
22. The District Court also considered the applicable rules of the 1905 Hague Convention on Matrimonial Property (Stb. 1912 No. 285) without deciding the question of whether the convention “was inoperative at that time as a result of the war between the Netherlands and Germany”.
23. Comments by Jessurun, H.U. d'Oliveira in AA (1978) pp. 580–587. Summarized in ELD (1978) p. 535.Google Scholar
24. 360 UNTS p. 117; Trb. 1955 No. 42.
25. Stb. 1976 No. 468; cf., also 8 NYIL (1977) pp. 328–330.
26. Art. 12(1): “The personal status of a stateless person shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.”
27. See 9 NYIL (1978) pp. 278–279.
28. Art. 1: “1 Moluccans who were transferred to the Netherlands under the auspices of the Netherlands Government in 1951 and 1952, and who are domiciled or factually resident in the Netherlands at the time of entry into force of this Act, while not possessing Netherlands citizenship, will be treated as Netherlands citizens for the application of Netherlands law. 2. They do not thereby acquire Netherlands citizenship.”
Art. 4: “All persons who are treated as Netherlands citizens under this Act are excluded from the right to vote and to offer themselves for election to public office. They will be denied entry into the armed forces, …”.
29. Art. 1: “1. For the purpose of this Convention, the term ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law.
2. This Convention shall not apply: i … ii. To persons who are recognized as having the rights and obligations which are attached to the possession of the nationality of Ihat country.”
30. Art. 12(2): “Rights previously acquired by a stateless person and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he become stateless.”
31. In G.M.S. v. S.M.L., the District Court of Rotterdam held that a petition for divorce between the parties, who were both to be regarded as Moluccans within the meaning of the Act concerning the status of Moluccans, was, by virtue of this Act, to be judged by Dutch law (Judgment of 17 April 1978, Institute's Collection No. 1248).
In J.T. v. S.W.U., the Court of Appeal merely found that both parties belonged to the South-Moluccan people, that both the husband and wife were stateless, although the woman gave her nationality as “unknown”. In application of Art. 12 of the Convention, the Court held Dutch law to be applicable to their divorce. (Court of Appeal, 26 October 1978, Institute's Collection No. 1328).
32. The Explanatory Memorandum to the Draft Budget for 1979 for the Ministry of Justice includes the following information (Bijl. Hand. II 1978/1979 – 15 300 VI No. 2 pp. 54–55): “During 1977, 676 appeals were made to the Judicial Division [Afdeling Rechtspraak] of the Council of State [Raad van State] (in 1976: 1044, of which 796 involved decisions made within the framework of regularization procedures). Of the 676 cases, 254 involved decisions made within the regularization framework. On 1 May 1978, the position on these cases was as follows: 68 cases had been dismissed; 18 cases had been declared inadmissible; in 25 cases the contested decision had been reversed; 25 cases had been withdrawn following the grant of a residence permit; 118 cases were pending. The situation as at 1 May 1978 of the 422 cases related to other matters was as follows: 29 cases had been dismissed; 22 cases had been declared inadmissble; in 2 cases the contested decision had been reversed; 53 cases had-been withdrawn following the grant of a residence permit; 316 cases were pending. In the period from 1 January to 1 May 1978, 151 appeals were made to the Judicial Division. In 1977, summary proceedings involving questions of the law on aliens were instituted against the State in 77 cases, 16 of which resulted in a settlement with the plaintiff; 61 cases resulted in a judicial decision. Of the 61 cases, 49 were dismissed, 7 were allowed and 5 were declared inadmissible. Of the cases-in which a judicial decision was made, 43 were brought before the President of the District Court of The Hague, and 18 before the Presidents of other District Courts. Of the 49 claims dismissed, 10 were taken to further appeal where judgment has been delivered on these appeals, the decision of the President in the summary proceedings has been upheld. In the period from 1 January to 1 May 1978, summary proceedings were instituted in 62 cases. In 19 cases the claim was withdrawn at the last moment or the question was settled by mutual agreement; thus, a judicial decision was required in 43 cases: 33 cases were dismissed, 8 claims were allowed and 2 cases resulted in an interlocutory decision or a declaration of inadmissibility against the plaintiff.
33. With comment by the Editors. Comments by Swart, A.H.J. in “De rol van het parlement bij de uitvoering van verdragen” [The role of parliament in me implementation of treaties], NJB (1979) pp. 264–266Google Scholar, and by Fleers, J.B. in “Surinaamse onderdanen en art. 34 (1)(b) Vreemdelingenwet” [Surinamese nationals and Art. 34(1)(b) of the Aliens Act], 58 Proces (1979) pp. 130–135Google Scholar. Cf., Swart, A.H.J., De toelating en uitzetting van vreemdelingen [The admittance and expulsion of aliens], (Deventer: Kluwer 1978) pp. 409–414Google Scholar. Cf., also Hand. II, 1978–79 pp. 658–659 and Aanh. Hand. II, 1978–79 p. 809.
34. Trb. 1975 No. 133.
35. Art. 10: “Each Contracting Party shall ensure the availability to interested of an appeal procedure [hogere voorziening] against decisions refusing, withdrawing or not extending such permission as referred to in Arts. 2–9.
36. Art. 29 provides that, as a general rule, expulsion shall not take place pending the request for review. This rule need not be adhered to in certain cases, e.g., in the event of unlawful residence, which was the point in dispute here.
37. The day on which Surinam acquired independence.
38. Art. 5: “1. If any person is granted permission to reside in the territory of the other Contracting Party under the provisions of one of the Arts. 2–4, this Contracting Party shall also grant permission to reside to members of the family of the person concerned, if the person concerned can produce evidence that adequate housing is available. (2 ‘Members of the family’ include: the spouse; a person with whom the person concerned shares a permanent and exclusive relationship; minors, actually belonging to the household of the persons, over whom one of the parents has authority; other members of the family who actually belong to the household of the person concerned and who are dependent upon him.”
Art. 8: “1. Each Contracting Party shall grant permission for establishment on its territory to any person actually resident there on 25 November 1975. 2. Each Contracting Party shall also grant permission for establishment on its territory to members of the family within the meaning of Art. 5(2) of a person who has been granted permission for establishment under the first section of the present Article.”
Art. 9: “Permission for establishment as referred to in Art. 8 cannot be refused or withdrawn unless the person concerned: (a) has been sentenced by a judicial decision delivered in the country of establishment for an offence committed with intent and liable to more than four years imprisonment; (b) constitutes a danger to the national security of the country of establishment.”
39. Art. 34 provides that no appeal lies to the Judicial Division when the alien has been in the Netherlands for less than a year, as in the present case. See infra n. 51.
40. Summarized in W RvS/R.2.59/78.
41. With comment by the Editors.
42. Art. 5: “The Minister of Justice may, upon request, grant Netherlands nationality to any person, (a) who has at any time possessed Netherlands citizenship [Nederlanderschap] or the status of a Netherlands subject [Nederlands onderdaan met-niet-Nederlander], who has attained majority, and who is domiciled or factually resident in the kingdom at the time of the request;” cf., 8 NYIL (1977) pp. 325–328.
43. Cf., 9 NYIL (1978) p. 299 n. 69.
44. The Judicial Division of the Council of State delivered a similar judgment in M.T.J.T. v. the State-Secretary of Justice (Judgment of 23 November 1978, summarized in W RvS/R.2.88/78).
In G.B. v. State-Secretary of Justice, on the other hand, the Judicial Division found that the State-Secretary could reasonably delay his decision on the request for naturalization until a final decision had been made on the residence permit. This was not a case contemplated by Art. 5(1)(a). B. possessed Guyanese nationality, and thus had to be naturalized by an Act. In cases like this, the grant of a residence permit could not be based on the sole ground that the applicant had made a request for naturalization (Judgment of 27 October 1978); Rechtspraak Vreemdelingenrecht (1978) No. 117, with comment by the Editors; summarized in W RvS/R.2.64/78). Cf., also, 9 NYIL (1978) p. 298 n. 68.
45. Stc. 1952 No. 132.
46. 520 UNTS p. 151; Trb. 1962 No. 30.
47. Art. 52: “A request for (a) the grant of a residence permit should be made by lodging a completed form, signed by the alien or his legal representative, with the Chief of the Police of his place of residence, or with a Dutch diplomatic or consular representative abroad.”
48. Cf., Swart, A.H.J., De toelating en uitzetting van vreemdelingen [Admittance and expulsion of aliens], (Deventer: Kluwer 1978) pp. 80–84 and 387–391.Google Scholar
The Judicial Division reached the same decision in the case I.B.R. v. Minister for Foreign Affairs, 13 June 1978, Rechtspraak Vreemdelingenrecht (1978) No. 23.
49. With note by F.H. van der Burg. Summarized in W RvS/R.2.81/78 and ELD (1979) pp. 293, 295, 301–302. Mentioned by Swart, A.H.J. in “De rol van het parlement bij de uitvoering van verdragen” [The role of parliament in the implementation of treaties], NJB (1979) p. 264.Google Scholar
50. With comment by the Editors.
51. Art 34: “(1) The Judicial Review of Administrative Decisions Act is applicable to decisions made under the provisions ot this Act in the sense that appeal to the Judicial Division of the Council of State, as provided for in this Act, lies for (a) … (b) those whose request for review under Art. 29 and 30 has been dismissed, either in whole or in part … on the understanding that, if the decision was made in accordance with the opinion” of the Commission, such appeal lies only if, on the day such decision was made the alien had been Resident in the Netherlands for a year. (2) … (3) Any appeal made under the first paragrapn” of this Article is, notwithstanding Art. 10 of the Judicial Review of Administrative Decisions Act, governed by Arts. 68–79 and 84 of the Council of State Act …”
52. 285 UNTS p. 231; Trb. 1956 No. 40. Art. V: “1. Nationals and companies of either Party shall be accorded national treatment with respect to access to the courts of justice and to administrative tribunals and agencies within the territories of the other Party, in all degrees of jurisdicton, both in pursuit and in defence of their rights …”
53. Art. 11(5): The grant of a residence permit as well as extension of its validity may be refused on grounds derived from the general interest.”
54. Art. II: “1. Nationals of either Party shall be permitted to enter the territories of the other Party and to remain therein: … (c) for other purposes subject to the laws relating to the entry and sojourn of aliens.”
55. Cf., Rousseau, Ch. “Chronique des faits internationaux”, RGDIP (1978) p. 1160, and (1977) pp. 1164–1166.Google Scholar
56. Art. 80: “Pending appeal, a decision may, at the request of the interested person, be itayed, in whole or in part, on the ground ttet 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.”
57. Art. III: “1. Nationals” of either Party within the territories of the other Party shall be free from molestations of every kind, and shall receive the most constant protection and security. They shall be accorded in like circumstances treatment no less favourable than that accorded nationals of such other Party for the protection and security of their persons and their rights. The treatment accorded in this respect shall in no case be less favourable than that accorded nationals of any third country or that required by international law.”
58. See supra n. 51.
59. Art. 38: “1. Pending the decision of the Judicial Division on the appeal, the alien against whom the contested decision has been made, shall not be expelled. 2. Derogation from the provision in the first paragraph is possible: (a) in cases where the request for review has been decided in accordance with the opinion of the Commission; (b) in cases where, should the decision on the appeal be awaited, there would be no opportunity for expulsion in the foreseeable future.”
60. AB (1978) No. 241; Rechtspraak Vreemdelingenrecht (1978) No. 11.
61. Art. XXIII: “1. The term ‘national treatment’ means treatment accorded within the territories of a Party upon terms no less favourable than the treatment accorded therein, in like situations, to nationals … of such Party.”
62. Art. 5: “1. The term ‘access’ as used in Art. V, para. 1, comprehends, among other things, legal aid, cost free access to the courts and exemption from security for costs.”
63. Art. II. “1. … 3. Nationals of either Party, within the territories of the other Party, shall be permitted: (a) to travel therein freely, and to reside at places of their choice; (b) to enjoy liberty of conscience; (c) to hold both private and public religious services; (d) to gather and to transmit material for dissemination to the public abroad; and (e) to communicate with other persons inside and outside such territories by mail, telegraph, and other means open to general public use. 4. The provisions of the present Article shall be subject to the right of either Party to apply measures that are necessary to maintain public order and protect the public health, morals and safety.”
64. See supra n. 53.
65. With comment by the Editors.
66. With note by van der Burg, F.H.. Summarized in ELD (1979) pp. 201, 202Google Scholar. The antecedents are dealt with by van Grinsven, A.J., “Vindt troebele Duitse politielogica navolging in Nederland?” [Is turbid German police logic being imitated in the Netherlands?], 3 Motief (1977) No. 10/11 pp. 6–7.Google Scholar
67. The SPK originated as a group of persons who were under treatment in the psychiatric clinic of Heidelberg University. When the University Board decided to put an end to the group, its members took action to continue and joined together to constitute the SPK.
68. Art. 15(1): “Aliens originating from a country where they have well-founded grounds to fear persecution for reasons of religion, political opinion or nationaltiy … or membership of a particular group, may be admitted as refugees by Our Minister.”
69. Art. 95: “1. A favoured EEC national may be refused a residence permit only when he constitutes a danger to public order, national security or public health … 4. For the purpose of paras. 1 and 2, danger to or violation of public order, or danger to national security is established exclusively on the ground of conduct of the favoured EEC national. Where such conduct has lead to conviction, the nature of the offence and the level of punishment are to be taken into consideration.”
70. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967; 606 UNTS p. 267; Trb. 1967 No. 76. Art. 12: “1. The personal status of a refugee shall be gov-everned by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.”
71. Art. 6: “Acts relating to rights, status and powers of persons are binding on Dutch nationals, even when they are abroad.”
72. Art. 12 was also applied in F.C. v. J.C.C., involving a petition for divorce by a woman of Argentine nationality who had been admitted to the Netherlands as a refugee. The place of residence of her husband, who was also an Argentine national, was unknown (District Court of Amsterdam, 30 November 1978, Institute's Collection No. 1325).
Art. 12 also found application in J.C.C. v. H.F.J.B.M. and F.C. – The plaintiff requested a declaration denying the legitimacy of a child. He and the mother of the child both had Argentine nationality, and the mother had been admitted to the Netherlands as a refugee. The Court applied Dutch law and granted the request (District Court of Alkmaar, 21 September 1978, Institute's Collection No. 1327).
In the divorce case J.R.V.V. v. G.V.G.A., where it was merely established that both parties had fled from Chile, the Court applied the rule that their personal status was governed by the law of the country of their residence (District Court of Rotterdam, 6 March 1978, Institute's Collection No. 1326).
73. Summarized in W RvS/R.2.13/78.
74. With comment by the Editors.
75. See supra n. 68.
76. Art. 1(A): “For the purposes of the present Convention the term ‘refugee’ shall apply to any person who … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”
77. With comment by the Editors.
78. Summarized in W RvS/R.2.18/78 and ELD (1979) pp. 252–253.
79. The Division further found “… that, in cases of armed resistance, the mere fact that the state concerned takes actions against such resistance does not mean that the members of such resistance are being persecuted for their political opinion. The exercise of powers by the – central – authorities will in such cases be directed against the acts of resistance emanating from this opinion.
As regards the question of whether such a situation also involves persecution, it may be of interest, and has been considered in the respondent's decision, whether the acts of resistance are to be regarded as an acceptable response to a situation which is threatening to those participating in such resistance. No less important would be the consideration of whether the state's action was an acceptable response to the resistance.
In the present case, however, this question is irrelevant, since the appellant, when fleeing to Iran, terminated his effective participation in Kurdish armed resistance, and based his fear of persecution on the situation arising for the most politically active Kurds, which may be taken to include the appellant, after the amnesty referred to ….”
80. Summarized in W RvS/R.2.25/78. On the same day, the Judicial Division delivered judgment in the similar case of Y.T. v. State-Secretary of Justice, Gids Vreemdelingenrecht No. D 12–16, Rechtspraak Vreemdelingenrecht (1978) No. 30 with comment by the Editors, AB (1979) No. 159, with note by van der Burg, F.H., summarized in ELD (1979) p. 253.Google Scholar
81. Other relevant judgments of the Supreme Court in cases involving extradition in 1978, include: (a) 17 January (A.M. v. Public Prosecutor), summarized in DD (1978) No. 123. (b) 24 January (H.W.F. v. Public Prosecutor), summarized in DD (1978) No. 129. (c) 7 February (D.B. v. Public Prosecutor), summarized in DD (1978) No. 139. (d) 7 February (A.H.B. v. Public Prosecutor), NJ (1978) No. 662, summarized in DD (1978) No. 135 and ELD (1979) p. 108. (e) 18 April (P.E. v. Public Prosecutor), NJ (1978) No. 182, summarized in DD (1978) No. 182 and ELD (1979) p. 108. (f) 25 April (F.R. v. Public Prosecutor), NJ (1978) No. 419 with note by Th. W. van Veen, summarized in DD (1978) No. 184 and ELD (1978) p. 501. (g) 2 May (T.U. v. Public Prosecutor), NJ (1979) No. 7, summarized in DD (1978) No. 185. (h) 23 May (F.O. v. Public Prosecutor), NJ (1979) No. 9, summarized in DD (1978) No. 201. (i) 23 May (K.R. v. Public Prosecutor), NJ (1978) No. 10, summarized in DD (1978) No. 199. (j) 30 May (G.C. v. Public Prosecutor), NJ (1979) No. 11, summarized in DD (1978) No. 208. (k) 6 June (D.J. v. Public Prosecutor), NJ (1978) No. 12, summarized in DD (1978) No. 217. (1) 27 June (A.A. v. Public Prosecutor), NJ (1978) No. 71, summarized in DD (1978) No. 247 and ELD (1979) p. 154. (m) 5 September (M.R.L. v. Public Prosecutor), summarized in DD (1978) No. 252. (n) 5 September (M.d.E. v. Public Prosecutor), summarized in DD (1978) No. 253. (o) 24 October (M.d.E. v. Public Prosecutor), NJ (1979) No. 157, summarized in DD (1979) No. 124. (p) 31 October (W.W.L. v. Public Prosecutor), NJ (1979) No. 158, summarized in DD (1979) No. 31. (q) 7 November (H.D.K. v. Public Prosecutor), NJ (1979) No. 188, summarized in DD (1979) No. 37. (r) 14 November (E.K. v. Public Prosecutor), summarized in DD (1979) No. 44. (s) 12 December (F.G.K.W.M. v. Public Prosecutor), NJ (1979) No. 141, summarized in DD (1979) No. 92 and ELD (1979) p. 304. (t) 19 December (H.W.H. v. Public Prosecutor), summarized in DD (1979) No. 116. (u) 19 December (G.K.U.G. v. Public Prosecutor), summarized in DD (1979) No. 114.
82. Summarized in DD (1978) No. 115 and ELD (1979) p. 108.
83. The request for extradition was made on 17 May 1976. The European Extradition Convention entered into force between the Federal Republic and the Netherlands on 1 January 1977. In his conclusion, the Solicitor-General stated that this Convention, and not the Netherlands-German Extradition Treaty of 1895 was applicable in this case. The Supreme Court applied the European Convention.
84. 359 UNTS p. 273; Trb. 1965 No. 9. Art. 6: “1. (a) A Contracting Party shall have the right to refuse extradition of its nationals, (b) Each Contracting Party may, by a declaration made at the time of signature or of deposit of its instruments of ratification or accession, define as far as it is concerned the term ‘national’ within the meaning of this Convention”. The Supreme Court used the French text.
85. Trb. 1969 No. 62 p. 13. “The Netherlands Government will not grant extradition or transit of its own nationals. As regards the Netherlands, ‘nationals’ for the purposes of the Convention are to be understood as meaning persons of Netherlands nationality as well as foreigners integrated in to the Netherlands community in so far as they can be prosecuted within the Netherlands for the act in respect of which extradition is requested.” The Supreme Court used the French text.
86. The Supreme Court reached a similar decision on the same grounds in H.J.E.B. v. Public Prosecutor, NJ (1978) No. 451, with note by G.E. Mulder. Summarized in DD (1978) No. 116. Cf., also Kuyper, J.R.H., “The Netherlands Law of Extradition” in International Law in the Netherlands (Alphen a/d Rijn, Dobbs Ferry 1978) Vol. II pp. 217–218Google Scholar and Noyon, and Langemeyer, , Het Wetboek van Strafrecht [The Penal Code] (Arnhem: Gouda Quint 1978) Annex 1: Uitlevering [Extradition] p. 42.Google Scholar
87. On the same date, the Supreme Court delivered judgment in the cases against the West-German C.M.W. and G.R.S. (NJ 1978 No. 315 with note by Th.W. van Veen). Their extradition had been requested by Western-Germany for the following offences; (1) participation in an organization (RAF) the object of which was to commit crimes, (2) using forged documents in Amsterdam, (3) attempted manslaughter in Amsterdam. In the District Court of The Hague, C.M.W. and G.R.S. contested the admissibility of extradition, relying, inter alia, on Art. 3(1) if the European Extradition Convention. The District Court did not consider the offences to be of a political nature (Judgment of 26 January 1978, DD (1978) p. 274), nor did the Supreme Court. The reasoning of the Supreme Court in these Judgments is similar to that in the case against K.D.F. The criteria applied by the District Court of The Hague for its decision on whether the offences were of a political nature were more detailed than those applied by the Maastricht District Court. See n. 96.
88. With note by Th.W. van Veen.
89. Comment by Krück, H., “Das ‘politische Delikt’ im Auslieferungsrecht der Niederlande”, [The political offence and extradition in Dutch law], EuGRZ (1978) pp. 306–309Google Scholar; Swart, A.M.J. “Terrorisme en uitlevering” [Terrorism and Extradition], Recht op Kritiek (1978) pp. 345–401Google Scholar; de Vey Mestdagh, K. in NJCM Bulletin (1978) No. 9/10, pp. 74–76Google Scholar; Kuyper, J.R.H. “The Netherlands Law of Extradition”, in International Law in the Netherlands (Alphen a/d Rijn, Dobbs Ferry 1978) Vol. II pp. 243–245Google Scholar; Noyon, and Langemeyer, , Het Wetboek van Strafrecht [The Penal Code] (Arnhem: Gouda Quint 1978) Annex I: Uitlevering [Extradition] pp. 49–50Google Scholar and Keijzer, N., Het Europees verdrag tot bestrijding van terrorisme [The European Convention on the Suppression of Terrorism] (Deventer: Kluwer 1979) pp. 19–20Google Scholar. Summarized in DD (1978) No. 187.
90. Art 140: “1. Participation in a legal entity aimed at the commission of crimes, is punishable with imprisonment not exceeding five years.”
91. Art. 95a: “Any person who with violence or threats of violence, breaks up a meeting of the Council of Ministers, forces it to take or not to take a particular decision, removes a member from such meeting or intentionally prevents a member from attending such meeting or from freely performing his duty, is punishable with life imprisonment or with imprisonment not exceeding twenty years.”
92. Cf., also the preceding judgments of the District Court of Utrecht, 14 October 1977, 9 NYIL (1978) p. 313 and 20 December 1977, 9 NYIL (1978) p. 348.
93. From the further statement of facts, also mentioned in the Haftbefehl, the District Court quoted the following facts in respect of offence (5): “On 5 September 1977, at around 5.28 p.m., in the Vincent-Statzstrasse, Cologne-Braunsfeld, five members of the group, K.D.F. among them, shot the four escorts of Dr. Hanns-Martin Schleyer, chairman of the German Employers Federation, viz., the driver, Heinz Maizic, and the policemen, Reinhold Brändle, Roland Pieler and Helmut Ulmer. Thereupon, they dragged Dr. Schleyer into a small VW stationwagon (number K-C 3849) which was standing ready, and first drove him to the underground garage of the apartment building at 1–5b Wiener Weg, Cologne-Junkersdorf. From there they drove Dr. Schleyer to a place still unknown. The purpose of the kidnapping was to blackmail and threaten the Government of the German Federal Republic, by threatening to kill their victim. On 6 September 1977, the kidnappers – as members of the “Kommando Siegfried Hausner” of the RAF (Rote Armee Fraktion) – claimed responsibility for this action, and demanded that the Federal Government should release eleven named terrorists and let them go by aircraft to a country of their choice. They also demanded for each of the eleven prisoners the sum of DM 100,000. They threatened to kill Dr. Schleyer if their demands were not staisfied within a stated time-limit, which they altered several times. Their demands were not accepted”.
94. DD (1978) p. 274. The District Court also rejected the plea that the fact that Arts. 1 and 2 of the European Convention on the Suppression of Terrorism (Trb. 1977 No. 63), which is not yet in force for the Netherlands, exclude from the category of political offences a number of offences which, at the present time, are still to be regarded as political offences, means that such offences should now always be regarded as political offences or as offences connected therewith. In the Court's view, it was not for the judge to decide the question of whether extradition should be refused on the ground that the claimed person would also be prosecuted on account of his political opinions (Art. 3(2) of the European Extradition Convention), since the decision on this question was reserved to the Minister of Justice. The question whether extradition to the Federal Republic would result there in violation of the European Convention on Human Rights, was also irrelevant for the question of the admissi-bility of extradition.
95. On 11 May 1978, the Minister of Justice decided to allow extradition. K.D.F. appealed to the Judicial Division of the Council of State (as did G.R.S. and C.M.W.). The State-Secretary promised to stay extradition until the Division had made a decision, subject to the condition that those concerned did not go on hunger-strike. When, in early October, K.D.F. (following G.R.S. and C.M.W.) nevertheless went on hunger-strike in protest against his treatment in the prison of Maastricht, the State-Secretary no longer felt bound by the promise and extradited K.D.F. on 17 October (G.R.S. and C.M.W. on 13 October).
The Judicial Division delivered judgment on 26 October, declaring K.D.F.'s claim inadmissible. (See infra p. 475) On 19 December, the Supreme Court rejected K.D.F.'s appeal in cassation against the decision of the Maastricht District Court, of 7 September 1978, granting an additional request by Western-Germany for his extradition. K.D.F. had not submitted points of appeal (DD 1979 No. 115).
96. In the cases against C.M.W. and G.R.S., the District Court of the Hague applied the following criteria: “whether or not a close and clear relationship exists between the offences and the desired political goal, whether or not the offences, in themselves, can and could reasonably be expected to (be likely to) lead to the desired goal, whether or not all this was done purely and only for ideological motives without other unacceptable aims, whether or not the offences committed were, reasonably speaking, the only possibility of realizing the desired political goal, and whether or not the desired political goal is in proportion to the harm inflicted as a result of the offences.”
The Supreme Court added to this: “it is in any case necessary that the offender could reasonably take the view that this offence could lead directly to the desired political goal; that the District Court, on the grounds of general experience in these matters, and of the established facts and circumstances, could reach the conclusion that the offences for which the appellant's extradition was requested do not satisfy the above mentioned criterium, while the question of whether the District Court correctly made this decision cannot be examined in cassation, since it is a point of fact.”
97. Summarized in ELD (1978) pp. 437, 449, 450. Discussed in Noyon, and Langemeijer, , Het Wetboek van Strafrecht [The Penal Code] (Arnhem: Gouda Quint 1978) Annex I: Uitlevering [Extradition] p. 41.Google Scholar
98. Summarized in DD (1978) No. 183.
99. De Gemeentestem (1978) p. 341. The considerations are similar to those in R.R. v. The State of the Netherlands infra p. 473 and K.D.F. v. State-Secretary of Justice infra p. 475. Cf., Noyon and Langemeijer, op.cit., p. 35.
100. 213 UNTS p. 221; Tib. 1951 No. 154. For Art. 6(1) see infra n. 151.
101. Cf.,supra n. 95.
102. Franco-Dutch Extradition Treaty of 1895, De Martens NRG, 2nd series Vol. 33 p. 41; Stb. 1898 No. 113.
103. Art. 11: “If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out.”
104. Summarized in DD (1978) No. 200 and ELD (1979) p. 202. Ibid, in N.T. v. Public Prosecutor.
105. For Art. 6 (1) see infra n. 151.
106. Art. 12: “1. Where an offence is not prosecuted or the prosecution is not continued, the interested party may file a petition to the Court of Appeal within whose jurisdiction prosecution should take place.”
107. Cf., also infra p. 475.
108. Summarized in W RvS/R.67/78.
109. 520 UNTS p. 151; Trb. 1962 No. 30. Art. 36: “…(2)… (a) … (iv) Serious of-fences heretofore referred to, committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made and if such offender has not already been prosecuted and judgment given… (3) The provisions of this article shall be subject to the provisions of the criminal law of the Party concerned on questions of jurisdiction. (4) Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.”
110. For Art. 30(2) see infra n. 120.
111. Institute's Collection No. 1317.
112. Art. 167: “1. … 2. Prosecution may be forborne on grounds of general interest”
113. On the same date, the Judicial Division expressed the same view in the appeals which had been entered against the State-Secretary by the West-Germans C.M.W. and G.R.S., and which were based on the same grounds.
114. With note by F.H. van der Burg. In fact, AB reprints the judgment in the case against C.M.W. under this number. But see n. 113. The cases are summarized in W RvS/R.2.52/78, DD (1979) p. 266, and ELD (1979) p. 202. See also Swart, A.H.J., “Terrorisme en uitlevering” [Terrorism and Extradition], Recht en Kritiek (1978) pp. 345–401Google Scholar; Kuyper, J.R.H., “The Netherlands Law of Extradition” in International Law in the Netherlands (Alphen aan den Rijn, Dobbs Ferry 1978) Vol. II pp. 229–230Google Scholar; Noyon, and Langemeijer, , Het Wetboek van Strafrecht [The Penal Code] (Arnhem: Gouda Quint 1978)Google Scholar Annex I: Uitlevering [Extradition] p. 35 and Fernhout, R., “AROB, uitlevering en non-Refoulement [The Judicial Review of Administrative Decisions Act, extradition and non-Refoulement], NJB (1979) pp. 413–418.Google Scholar
115. For Art. 15 see supra n. 68.
116. Art. 3: “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. 2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasons.”
117. Art. 33: “1. No Contracting State shall expel or return (‘refouler’) a refugee in a manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
118. Art. 1(F): “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considring that: (a) he has commited a crime against peace, a wax crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
119. Art. 10(1): “Extradition shall not be allowed in cases where, in Our Minister's opinion, there are well-founded reasons to assume that compliance with the request will result in the person claimed being prosecuted, punished or otherwise affected by reason of his religious or political opinion, his nationality, race or social group to which he belongs.”
120. Art. 30: “2. … If the court has pronounced the extradition admissible, the decision must be accompanied by an opinion [advies] of the court on the effect to be given to the request for extradition.”
121. Art. 5: “Measures specified in this Act are not available with respect to … (e) decisions in connection with which the judiciary have been heard as prescribed by law.”
122. See supra p. 465.
123. Cf., supra n. 95.
124. Art. 25: “1. The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged had declared that it recognizes the competence of the Commission to receive such petitions.”
125. Summarized in ELD (1979) p. 249.
126. Stb. 1897 No. 211.
127. Trb. 1957 No. 7.
128. Trb. 1961 No. 116.
129. Cf., Brinkhorst, L.J. and Lammers, J.G., “The impact of International Law, including European Community Law on the Netherlands Legal Order” in Introduction to Dutch Law for Foreign Lawyers (Deventer: Kluwer 1978) pp. 561–584, at pp. 563 and 565Google Scholar, where n. 6 refers to an application of Art. 60(3) by the Supreme Court in its judgment of 31 August 1972 (reported in 4 NYIL (1973) pp. 391–396).
130. Art. 12: “When, during criminal proceedings in either state in respect of non-political offences which are also punishable under the laws of the other state, it is deemed necessary by the authorities to hear witnesses within the territory of the other state or to make an investigation there, a request to that effect shall be made in writing through diplomatic channels and the request shall be complied with, subject to the laws of the state where the witness is to be heard or the intended investigation to be made …”
131. Note by F.H. van der Burg.
132. With comment by the Editors. Summarized in W RvS/R.2.41/78 and ELD (1979) p. 61. Cf., also Land, S., “Uitwijzing Marokkaanse hongerstakers onafwendbaar” [Expulsion of Moroccan hunger strikers unavoidable], 4 Motief (1978) No. 6 pp. 18–19Google Scholar and van Balgooi, H., “De 182 Marokkanen-Amnesty's argumenten” [The 182 Moroccans-Amnesty's arguments], Wordt Vèrvolgd (1978) No. 11 pp. 1–3.Google Scholar
133. Cf., 7 NYIL (1976) p. 327 n. 70.
134. Cf., Hand. II 1978–9 p. 659.
135. The recommendation was followed by the majority of the Moroccans.
136. Note by Maeijer, J.J.M.. Summarized in NJCM Bulletin (1978) No. 9/10 pp. 48–49Google Scholar and in ELD (1979) p. 107. Comments by Eskes, J.A.O. in “Partijverbod en kiesrecht” [The banning of parties and electoral law], NJB (1978) pp. 847–853Google Scholar. Discussed and reprinted in the Fourth report submitted by the Netherlands under Art. 9 of the CERD Convention, covering the period 9 January 1977 to 9 January 1979, CERD/C/48/Add. 5 pp. 4–5 and Annex 4.
137. Art. 15: “A legal entity is prohibited if its purpose or activities are in conflict with public order or morals.”
138. The Court mentioned, inter alia, J.G.G.'s convictions by the Court of Appeal of Amsterdam on 15 December 1975, and by the Court of Appeal of the Hague on 16 August 1977. Cf., 8 NYIL (1977) pp. 272–273 and 9 NYIL (1978) pp. 300–302. His appeal in cassation against the latter sentence was dismissed by the Supreme Court on 14 March 1978. The Court dismissed the plea based on Art. 10 of the European Human Rights Convention by simply referring to section 2 of this Article, and further considered that the words of the Court of Appeal “all Surinamese – without any distinction” (9 NYIL (1978) p. 301)Google Scholar should be construed as “all persons coming from Surinam whatever their nationality” (NJ (1978) No. 664; summarized in DD (1978) No. 157, NJCM Bulletin (1978) No. 9/10 pp. 49–51 with note by J.A. Peters and Fourth Report, op.cit., Annex 3).
139. This was given effect in respect of the municipal elections of 31 May 1978. The decision of the Amsterdam District Court was of paramount importance in the resultant refusals to register the party's name, and accept its lists of candidates. Cf., J.A.O. Eskes, op.cit.
140. Art. 16(1): “A prohibited legal entity may be dissolved by order of the Public Prosecutor.”
141. The appeal against the decision was dismissed by the Court of Appeal of Amsterdam on 30 June 1978.
142. Note by Scheltema, M., Summarized in DD (1979) pp. 99 and 101.Google Scholar
143. 213 UNTS p. 221; Trb. 1951 No. 154. Art. 5(1): “Everyone has the right to liberty and security of person.”
144. Art. 8: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as 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.”
145. Art. 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
146. As regards the reason of detention, see infra p. 514.
147. Art. 10 of the Extraordinary Criminal Proceedings Transition Act [Wet overgang bijzondere rechtspleging], ot 13 May 1948, Stb. 1948 No. I 186.
148. Art. 5(3): “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
149. With note by E. Myer.
150. With note by Th.W. van Veen.
151. Art. 6(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.”
152. The Court of Appeal delivered a similar judgment in X v. Public Prosecutor, after finding that thirteen months had elapsed between the receipt of the reports of the police investigation by the office of the Public Prosecutor and the first attempt to summons X., and that more than six months had elapsed between this first attempt and the second writ of summons (Judgment of 14 November 1978, NJCM Bulletin (1978) No. 14 p. 23). In the case of the Judge Advocate v. K.R.P., the District Court Martial of Arnhem held that an extended period of time between the institution of criminal proceedings and the hearing in court was not contrary to Art. 6(1) because this was a complicated case which had first been brought before the Politierechter of the Arnhem District Court, who had declared the Public Prosecutor's claim to be inadmissible since P. was a minor (Judgment of 14 November 1978, MRT (1979) p. 277, with note by W.H. Vermeer).
153. With note by Scheltema, M.. Summarized in ELD (1979) pp. 296, 299, 302.Google Scholar
154. With note by A. Herstel. Summarized in DD (1978) No. 121.
155. Art. 6(2): “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
156. Art. 17: “Nothing in this Convention may be interpreted as applying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
157. Cf., Supreme Court, 15 February 1977 (9 NYIL (1978) p. 309) and Schuite-maker, L.K.F., “Alcohol, verkeer en het Europese Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden” [Alcohol, traffic and the European Convention on Human Rights] 27 Verkeersrecht (1979) pp. 1–10.Google Scholar
158. Summarized in DD (1979) No. 13.
159. Art. 6(3): “Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”
160. On 17 November 1978, the Politierechter of Amsterdam, who was faced with such a situation as a first instance judge, stayed proceedings, relying on Art. 6(3)(a), in order to enable the Public Prosecutor to inform the accused in a second writ, in the language which he understood (German), of the nature and cause of the accusation against him (NJ (1979) No. 124. Summarized in ELD (1979) pp. 290–291).
161. Art. 423(1) provides that the Court of Appeal may affirm or, if the decision is annulled, do what the lower court should have done. The Public Prosecutor deemed this provision (and not Art. 423(2)) to be applicable, since he was of the opinion that the Local Court has ruled upon the main action.
162. Art. 423(2) provides that, where the main action has not yet been decided by the lower court, the Court of Appeal – if the decision is annulled – should remit the case to the lower court.
162a. Summarized in DD (1978) No. 110.
163. Art. 6(3)(d): “Everyone charged with a criminal offence has the following minimum rights: “(a) …(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
164. Stb. 1947 No. H 291, Art. 7 enables the Mayor and Aldermen to claim, the use of dwellings, whether occupied or not, subject to certain conditions.
165. For Art. 8 see supra n. 144.
166. Summarized in W RvS/R.2.85/78.
167. Art. 9: “(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (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.”
167a. Summarized in ELD (1979) pp. 303, 304, 326.
168. Trb. 1969 No. 99 p. 105. Art. 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seeks receive and impart information and ideas though any media and regardless of frontiers.”
169. Art. 10: “(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of 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.”
170. Cf., Royal Decree, 27 December 1976 No. 18, 9 NYIL (1978) p. 309.
171. Cf., Peters, J.A.: “De zaak Kalma en de vrijheid van meningsuiting” [The Kalma Case and the freedom of expression], NJB (1978) pp. 369–377Google Scholar, and Groeneweg, N., “Het rechts-karakter van de grondrechten” [The legal character of fundamental rights], 40 Tijdschrift voor de Politie (1978) pp. 157–161.Google Scholar
172. Art. 104 defines dereliction of duty as, inter alia, “doing or omitting to do something which a good officer in the given circumstances would omit to do or do”.
173. At the request of the Rotterdam “Lawyers Collective” [Advocatencollectief Rotterdam] which appeared in K.'s defence, an advisory opinion was given and submitted to the Civil Service Tribunal by Bergamin, R.J.B., van Maarseveen, H.Th.J.F. and van der Tang, G.F.M., entitled Ambtenaar en vrijheid van meningsuiting [Civil Servants and freedom of expression] (Rotterdam: Erasmus University 1978) 38 pp.Google Scholar
174. Note by J. Nijenhof.
174a. Note by Crijns, F.C.L.M.. Summarized in ELD (1979) pp. 301, 332.Google Scholar
175. A similar judgment was delivered by the President of the Judicial Division in G. Voerman v. the Mayor and Aldermen of Ridderkerk, in which Art. 358a of the Ridderkerk Building Regulations, which also prohibited the placement of private aerials where connection to a communal system was possible, was held to be incompatible with Art. 10, the more so since it appeared that the Municipality of Ridderkerk had deliberately failed to include in Art. 358a the clause proposed by the Vereniging van Nederlandse Gemeenten [Association of Dutch Municipalities], which was intended to withdraw the prohibition where the private aerial enabled the reception of a wider range of stations than was the case with a communal system (Judgment of 31 May 1978, 128 De Gemeentestem (1978) p. 409 with note by van Zanten, P., NJCM Bulletin (1978) No. 12 p. 27Google Scholar with note by J.A. Peters on p. 36, AB (1978) No. 460, OB (1978) No. 39702, summarized in ELD (1979) p. 56).
176. Cf., Alkema, E.A. in Ars Aequi (1979) pp. 42–48.Google Scholar
177. Art. 1(1) of the Regulation prohibits the use of a house, giving its use to another, or to causing it to be used as a second residence, or for other recreational purposes, without authorization by the Mayor and Aldermen.
178. 213 UNTS p. 262; Trb. 1952 No. 80. Art. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
179. Note by A.W. Heringa.
180. The criteria are as follows: “A woman can only be registered as an applicant for accommodation (a) if she lives alone, or (b) if the husband is a student, and the wife is the wage-earner and is entitled to live in Haarlem, or (c) in the case of a family breaking-up.
181. Trb. 1969 No. 100: Art. 11(1): “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”
182. Trb. 1969 No. 99. Art. 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
183. The Covenants were ratified by the Netherlands on 11 December 1978, and entered into force on 11 March 1979. Cf., Trb. 1978 Nos. 177 and 178.
184. Art. 138: “(1) Anyone who unlawfully trespasses upon a house, or the enclosed area or premises occupied by another person, … is liable to a term of imprisonment not exceeding six months or a fine not exceeding Dfl. 600,– … (3) The penalties determined in para. 1 may be increased by a third, if two or more persons commit the offence in conjunction.”
185. Art. 282: “(1) Anyone who wilfully deprives, or has deprived another of his liberty shall be liable to a term of imprisonment not exceeding seven years.”
186. Art. 350: “(1) Anyone who wilfully and unlawfully smashes, damages, loses or makes unusable any property belonging in whole or in part to another, is liable to a term of imprisonment not exceeding two years or a tine not exceeding Df1. 600,–.”
187. 500 UNTS p. 95; Trb. 1962 No. 159. .
188. Cf., Aanh. Hand. II, 1978–9 No. 953 pp. 1703–4. In reply to questions from the Second Chamber, the Minister for Foreign Affairs stated that the consular agent had no competence in this case. Therefore, he had personally authorized the Ambassador to carry out the decision of the court. He added that, generally speaking, the summoning of persons by an embassy was no internationally recognized and permissible practice. Nevertheless, the Ambassador had issued an order for the Turkish woman to appear in the Embassy.
189. Cf., Rousseau, Ch., “Chronique des faits internationaux” 82 RGDIP (1978) p. 626.Google Scholar
190. The punishment took into account two other offences committed by W.J.D., viz., attempted arson in the Rotterdam Law Courts, and unlawful possession of weapons.
191. The respondents based their view, inter alia, on a Judgment of the Supreme Court, of 8 November 1961, in an almost identical case (BNB (1962) No. 2, with note by P. den Boer).
192. 199 UNTS p. 67; Trb. 1951 NO. 114. Art. X(1): “Where the legal incidence of any form of taxation in the receiving State depends upon residence or domicile, periods during which a member of a force or civilian component is in the territory of that State by reason solely of his being a member of such force or civilian component shall not be considered as periods of residence therein, or as creating a change of residence or domicile, for the purpose of taxation.” The Agreement applies to the appellant under Art. 2 of the Protocol on the status of International Military Headquarters, set up pursuant to the North Atlantic Treaty of 1952 (200 UNTS p. 340; Trb. 1953 No. 11).
193. According to Art. 95 of the Act on the Organization of the Judiciary (Stb. 1827 No. 20) the Attorney-General to the Supreme Court may “in the interest 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 der 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).
194. Note by J.C. Schultsz.
195. 658 UNTS p. 143; Trb. 196 No. 29. Art. 10: “In order to ensure the continuity of the measures applied to the infant, the authorities of a contracting State shall, as far as possible, not take measures with respect to him save after an exchange of views with the authorities of the other contracting States whose decisions are still in force.”
196. The Supreme Court referred to Conféerence de La Haye de droit international privé, Actes et Documents de la neuvième session, Tome IV, in particular pp. 160 and 236.
197. De Martens NRG 3rd series Vol. 21 p. 782; Stb. 1929 No. 405.
198. Trb. 1969 No. 101. Art. 56: “The Treaty and the conventions referred to in Art. 55 shall continue to have effect in relation to matters to which this Convention does not apply …” Art. 1 excludes, inter alia, divorce.
199. Note by J.C. Schultsz.
200. 399 UNTS P. 189; Trb. 1957 No. 84.
201. Art. 57: “This Convention shall not affect any conventions to which the Contracting States are or will be parties and which, in relation to particular matters, govern jurisdiction and the recognition and enforcement of judgments.”
202. Art. 68: “This Convention drawn up in a single original in the Dutch, French, German and Italian languages, all four texts being equally authentic, shall be deposited in the archives of the Secretariat of the Council of the European Communities …”
203. De Martens NRG 2nd series Vol. 31 p. 709; Stb. 1904 No. 121.
204. Stb. 1977 No. 61.
205. De Martens NRG 2nd series Vol. 31 p. 715; Stb. 1904 No. 121.
206. Stb. 1968 No. 131.
207. Summarized in DD (1979) No. 68 and ELD (1979) p. 290. Note by Nutters, P.L. in MRT (1979) pp. 511–513.Google Scholar
208. Art. 30(1)(a) requires a driver to stop after an accident until the identity of both person and motor vehicle have been properly established. Para 2 excludes prosecution where the driver voluntarily gives notification of the accident within 24 hours to the persons [Dutch authorities] listed in Art. 141, Code of Criminal Procedure.
209. VR (1978) No. 73.
210. Note by W.H. Vermeer. Cf., also Keijzer, N. “De bloedproefregeling en de “exclusionary rule“ [The blood-test and the “exclusionary rule”]: het 5 milliliter arrest”, MRT (1979) pp. 52–63.Google Scholar
211. Art. 26(2): “The driver of a vehicle is forbidden to drive it or cause it to be driven after consuming such a quantity of alcohol that the proportion of alcohol in his blood appears, after testing, to be higher than 0, 5 milligramme per millilitre of blood.”
212. Art. 24(a): “Ordnungswidrig handelt, wer im Strassenverkehr ein Kraftfahrzeug füuhrt, obwohl er O,8 promille oder mehr Alkohol im Blut oder eine Alkoholmenge im Körper hat, die zu einer solchen Blutalkoholkonzentration führt.”
213. MRT (1979) p. 148.
214. Royal Decree of 9 October 1974, Stb. 1974 No. 596. Art. 7 provides, inter alia, that, where the accused is not in a state to make his wishes known, a blood test may be made subject to the consent of, inter alia, the Public Prosecutor.
215. Vermeer notes that, contrary to the Dutch practice, the German system calculates the proportion of alcohol at the time of driving.
216. Cf., the case cited in 8 NYIL (1977) p. 289 n. 79.
217. Discussed by A. Korthals Altes in “De weg tot het water: bevoordeling van de na-tionale vloot mede in het licht van het volkenrecht” [The way to the water: favourable treatment for the national fleet in the light of international law] Deventer: Kluwer, 1979 [Report presented at the 1979 annual meeting of the Netherlands International Law Association No. 79, entitled “Nationale maatregelen tot bescherming of bevoordeling van de eigen handelsvloot mede in het licht van het volkenrecht [National regulations for the protection or favourable treatment of the national merchant fleet in the light of international law] pp. 47–103 at p. 89.
218. Art. 13a: “The jurisdiction of the Courts and the enforcement of judicial decisions and authentic deeds are subject to exceptions recognized under international law.”
219. De Martens NRG 2nd series Vol. 11 p. 281; Stb. 1888 No. 74..
220. 450 UNTS p. 82; Trb. 1959 No. 124.
221. 559 UNTS p. 285; Trb. 1959 No. 125.
222. District Court of Rotterdam, 17 January 1977, 9 NYIL (1978) pp. 323–328. In the present case, the Court adopted the following findings from the Nedlloyd case: p. 325. “Under Dutch Law – can be made” and pp. 326–327: “Such a convention exists – Cable Convention of 1884 (Arts. 2 and 4)”.
223. Art. 2(1): “La rupture ou la détérioration d'un câble sous-marin, faite volontairement ou par négligence coupable, et qui pourrait avoir pour résultat d'interrompre ou d'entraver, en tout ou en par tie, les communications télégraphiques est punissable, sans préjudice de l'action civil en dommage et intérêts.”
224. Summarized in ELD (1978) pp. 303, 331.
225. De Martens NRG 3rd series Vol. 21 p. 711; Stb. 1913 No. 74.
226. S & S (1976) No. 78.
227. Art. 11: “This Convention is not applicable to warships, or State vessels exclusively intended to be used for public service.”
228. Art. 12: “The provisions of this Convention shall be applicable to all interested parties where all ships concerned fly the flag of one of the High Contracting Parties, and in such other cases as are provided for in the municipal laws …”
229. Summarized in ELD (1979) p. 195.
230. 9 NY1L (1978) p. 328.
231. 450 UNTS p. 82; Trb. 1959 No. 124.
232. With note by Scholten, G.J.. Summarized in ELD (1978) pp. 475, 483 and 543Google Scholar. Comment by Korthals Altes, A. “Past op. wrakken” [Beware wrecks], in “Non sine causa” (Zwolle: Tjeenk Willink, 1979) pp. 185–202Google Scholar [Essays in Honour of Prof. G.J. Scholten].
233. 5 NYIL (1974) pp. 326–331.
234. 8 NYIL (1977) pp. 289–293.
235. The Court gave a similar judgment in Public Prosecutor v. J.S. (Judgment of 30 January 1978, NJ (1978) No. 470). J.S. was sentenced to a fine of Dfl. 500, or alternatively 20 days' imprisonment, of which Dfl. 250 or alternatively 10 days' imprisonment was suspended for two years.
236. Stc. 1976 No. 63.
237. 486 UNTS p. 157; Trb. 1959 No. 144.
238. 9 NYIL (1978) pp. 328–330.
239. 9 NYIL (1978) pp. 383–384.
240. For the relation between the Convention and the municipal provisions, see 9 NYIL (1978) p. 329.
241. Trb. 1978 No. 62. Cf., Koers, A.W., “The Netherlands and International Fisheries Law”, in International Law in the Netherlands (Alphen a/d Rijn, Dobbs Ferry 1978) Vol. I pp. 315–331, at pp. 330–331.Google Scholar
242. Art. 1(2): “In the event of a change in the law subsequent to the time the offence was committed, the most favourable provisions for the accused shall apply.”
243. Summarized in ELD (1979) pp. 40–41.
244. Preceded by decision of 3 May 1974, S & S (1974) No. 84.
245. Stb. 1954 No. 376.
246. 509 UNTS p. 1; Trb. 1960 No. 69.
247. For Art. 57 see supra n. 201.
248. Art. 19 provides that the Netherlands is responsible for river-police functions relating to, inter alia, the Bocht van Watum. Art. 20 provides that these functions include, inter alia, the removal of wrecks. Art. 21 provides that in carrying out river-police functions each Con-tractory Party shall apply its own laws and regulations.
249. Art. 780 of the Code of Commerce regulates the liability of the master, while Art. 10 of the Wrecks Act (Stb. 1934 No. 401) provides that the administrator of the waterway concerned may remove the wreck and recover the costs from the proceeds of the wreck.
250. Art. 5: “Any defendant domiciled in a Contracting State may, in another Contracting State, be suedin … (3) the Court of the place where the tortious act occurred, in matters of tort or quasi-tort.”
251. Art. 32: “(1) Where the applicability of any legal provision depends upon the question within which territory a vessel is situated or through which territory its course lies, the following – save as otherwise provided in this Treaty or in other international treaties to which both Contracting Parties are parties – shall apply with respect to the Ems Estuary: Germar. vessels shall be deemed to be within the territory of the Federal Republic, and Nether ands vessels shall be deemed to be within the territory of the Kingdom of the Netherlands; …” Cf., Bouchez, L.J., “The Netherlands and the Law of International Rivers”, in International Law in the Netherlands, (Alphen a/d Rijn, Dobbs Ferry 1978) Vol. I pp. 215–288, at pp. 280–286.Google Scholar
252. Note by Th.W. van Veen. Summarized in DD (1978) No. 202. Mentioned by Rousseau, Ch., “Chronique des faits internationaux”, 83 RGDP (1979) p. 191Google Scholar, and by Roling, B.V.A. in “Supranational Criminal Law in the Netherlands Theory and Practice” in International Law in the Netherlands (Alphen a/d Rijn, Dobbs Ferry 1979) Vol. II pp. 161–201 at pp. 200–201Google Scholar. Comments by Rotshuizen, E.J. in “De niet geschreven overwegingen” [The Unwritten Considerations], NJB (1978) pp. 711–712Google Scholar and by van Veen, Th.W. in “De Minister mag niet zelf seponeren [The Minister himself may not decide to take no action]. Rechtsgeleerd Magazijrf Themis (1979) pp. 113–117Google Scholar. Detailed historical study and comments by Algra, N.E. in Enkele juridische aspecten van de strafzaak Menten [Some legal aspects of the Menten Case] (Groningen: Wolters-Noordhoff 1978)Google Scholar. On the basis of the judgment of the Supreme Court, the Schofer Commission – established by the Minister of Justice – published its Thirds interim Report De beschuldigingen van massamoord tegen P.N. Menten in Nederland 1945–1955 [The allegations of mass murder against P.N. Menten in the Netherlands 1945–1955]. Bijl. Hand. II 1977/1978 – 14 253, No. 14, 103 pp.
253. Stb. 1943 No. D 61 and Stb. 1947 No. H 233. Art. 27a: “1. Any person, who during the present war, in military, state or public service of or with the enemy, commits a war crime or a crime against† humanity as defined in Art. 6(b) and (c) of the Charter annexed to the London Agreement of 8 August 1945. shall be liable to the penalty fixed for such crime, provided that the crime committed also contains the elements of a criminal offence under Dutch law”. Art. 6 of the Charter (82 UNTS p. 279; Stb. 1946 No. G 5): “The Tribunal established by the Agreement referred to in Art. 1 thereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) …; (b) War crimes: namely, violations of the law or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated …”
254. Stb. 1892 No. 268. Art 7: “Dutch nationality is lost: 1. … 4. by entering foreign military or state service without Our leave.”
255. Entering the military service of a foreign power voluntarily, with the prospect of a war with that foreign power, is punishable under these provisions if such war takes place.
255a. 9 NYIL (1978) pp. 337–348.
255b. Contra, District Court, 9 NYIL (1978) pp. 341–342 under (3)(a).
255c. Contra, District Court, 9 NYIL (1978) p. 343, under (4).
256. Art. 4 BBS provides that Dutch penal law is applicable to Dutch nationals who have committed or are committing any of the offences referred to in Art. 1 outside the European part of the Realm. The list appearing in this Article under 1° includes the offence defined in Art. 27a BBS, P.N.M. now contested the applicability of Art. 4 and consequently the jurisdiction of the Court by attempting to show that he was not a Dutch national in 1941. Contra, District Court, 9 NYIL (1978) pp. 340–341, under (1). The fifth point of cassation was made with the same purpose.
257. Cf., 9 NYIL (1978) p. 341, under (1).
258. Contra, District Court, 9 NYIL (1978) p. 342, under (3)(a).
259. Contra, District Court, 9 NYIL (1978) p. 341, under (1).
260. Contra, District Court, 9 NYIL (1978) p. 344, under (VIII)(1).
261. Unlike the Supreme Court, the Solicitor-General rejected all the points of appeal, Cf., NJ (1978) No. 358 pp. 1238–1264.
262. Note by E. Myjer. Discussed by One, A.M.M. and Myjer, E. in “Menten en de goede procesorde” [Menten and due process], 9 DD (1979) pp. 84–95Google Scholar. Comments by the Schöfer Commission in the Fourth Interim Report, Bijl. Hand. II, 1978–1979, 14 252, No. 15. Summarized in ELD (1979) pp. 137–138.
263. Article 6: “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 …”
264. Cf., Third Interim Report of the Schöfer Commission, op.cit., pp. 45 et seq.
265. Cf., Rousseau, Ch., “Chronique des faits internationaux”, 83 RGDIP (1979) pp. 191–192.Google Scholar