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Netherlands judicial decisions involving questions of public international law, 1998–1999*
Published online by Cambridge University Press: 07 July 2009
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References
1. Note by T.M. Schalken.
2. Note by T.G. Drupsteen.
3. 1359 UNTS p. 209; ILM (1982) p. 48Google Scholar. Trb. 1981 No. 188. For the text of the relevant parts of Arts. 1 and 6, see under Held.
4. The interest of the other two parties – A.R. and A. – lay in the fact that they too were the subject of a criminal investigation in the United States as a result of the seized documents.
5. The Joint Court of Appeal of the Netherlands Antilles and Aruba had previously anticipated the entry into effect of this legislation by applying it in its judgment of 20 October 1992 in the case of Aruba v. O.A.L. and three others (Tijdschrift voor Antilliaans Recht-Justitia (1992) p. 238Google Scholar, with note by J.M. Reijntjes). However, the Supreme Court rejected this advance application of the legislation in its judgment of 4 March 1994 (NJ (1994) No. 575, with note by T.W. van Veen).
6. It is evident from the judgment of the Court of First Instance of 5 June 1992 that the requirement of double criminality contained in Art. 6 should, however, be applied by the court (Tijdschrift voor Antilliaans Recht-Justitia (1992) p. 11 of 3Google Scholar, with note by J.M. Reijntjes).
7. In the subsequent assessment of the request for the extradition of H., which dated from 1997, the Joint Court of Appeal initially took the view that the request was based on evidence unlawfully obtained and that supplementary evidence was necessary (interim judgment of 31 January 1998). However, the United States refused to comply with this request, after which the Joint Court of Appeal recommended in its opinion to the Governor of Aruba of 15 April 1998 that H. be extradited on the basis of the documents that had by that time come to the attention of the Joint Court of Appeal ex officio. The Governor subsequently decided on 17 April to grant the extradition (cf., the commentary of Socrona, J.M. in ‘Extradition on Aruba: Supreme Court and defence offside’), NJB (1998) pp. 865–866)Google Scholar. H. appealed in cassation to the Supreme Court against the opinion of the Joint Court of Appeal. The Supreme Court held that the appeal was not admissible. The cassation arrangement for the Netherlands Antilles and Aruba did not, after all, provide for the possibility of appealing in cassation against opinions of the Joint Court of Appeal in extradition cases. This was not altered by the fact that fundamental principles of law were alleged to have been infringed. Furthermore, the courts should observe restraint in matters relating to the Kingdom, particularly if the problem was already under consideration by the Kingdom legislator (Judgment of 6 July 1999, NJ (1999) No. 107).
8. Note by B.P. Vermeulen.
9. OJ 1997 No. 254 p. 1Google Scholar; Trb. 1991 No. 129. The full title reads: Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities.
10. Art. 3(4) reads: ‘1. Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto. The Member State responsible under the above criteria is then relieved of its obligations, which are transferred to the Member State which expressed the wish to examine the application. The latter State shall inform the Member State responsible under the said criteria if the application has been referred to it.’
11. Art. 15b(1)(a) reads: ‘An application for admission as a refugee shall not be granted if it is not advisable because: (a) another country, party to the Geneva Convention relating to the Status of Refugees in accordance with a treaty or a decision of an international organisation binding this country and the Netherlands, is responsible for processing the application, unless such an application is founded on relevant facts which could not have played any role in the decision by the authorities of that country.’
12. 213 UNTS p. 221; ETS No. 5; Trb. 1964 No. 69. Art. 3 reads: ‘No one shall be subjected to torture or two inhuman or degrading treatment or punishment.’
13. In the same sense see District Court of The Hague (sitting in Zwolle), 9 September 1998, JV (1998) No. 201 with note by R. Fernhout. But see also District Court of The Hague (sitting in Zwolle), 8 May 1998, JV (1998) No. 123 with note by R. Fernhout. In this judgment, however, the matter is reviewed directly by reference to Art. 10. District Court of The Hague also held in its judgment of 15 March 1999 that Art. 10(3) of the Convention of Dublin and Art. 8 of Order 1/97 of the Implementing Committee written to supplement and clarify that article (Aliens Circular No. C42) had been written partly in the interests of citizens. The District Court then reviewed the policy of the State Secretary by reference to Art. 8 (NAV(1999) No. 70 and JV (1999) No. S158).
14. The Dutch term used is marginale toetsing, which can be literaly translated in marginal review.
15. In the judgment of District Court of The Hague (sitting in Zwolle) of 7 June 1999, the guideline applied by me State Secretary – namely that the application for asylum under Art. 3(4) need not be processed if six months have not yet elapsed between the claim agreement and the disputed decision – was held not to be unreasonable. Since it is stated in the preamble to the Convention of Dublin that asylum-seekers should not be left in doubt for too long as regards the likely outcome of their applications, the State Secretary should nevertheless make use of Art. 3(4) when the occasion arises. This is the case for example where five months and four days have elapsed between the application for asylum and the claim request (the maximum period is stated in Art. 11(1) to be six months). When this is added to the period of three months and eleven days for the above-mentioned period between the claim agreement and decision, the total period is too long (NAV (1999) No. 114 with note by H. Tiemersma). Idem District Court of The Hague (sitting in Zwolle), 24 June 1999, JV (1999) No. 208 with note by R. Fernhout and RV (1999) No. 14 with note by B.P. Vermeulen. But see District Court of The Hague (sitting in Haarlem), 24 September 1999, JV (1999) No. 228 and District Court of The Hague, 29 October 1999, RV (1999) No. 17 with note by B.P. Vermeulen. District Court of The Hague (sitting in Zwolle) had previously held that where the period specified in Art. 11(5) – i.e., a month – was exceeded by nine months it was necessary to apply Art. 3(4) (judgment of 13 January 1999 (NAV(1999) No. 28 with note by H. den Haan). On 19 January 1999 the same District Court held that the total period between the asylum request and the transfer could not exceed six months (excluding the time taken by the requested State for consideration), (JV 1999) No. 79, GV No. 18b-24, see also article by Tiemersma, H. ‘Overeenkomst van Dublin, een onderonsje tussen staten?’ [Convention of Dublin: a deal between States?], NAV (1999) pp. 257–264)Google Scholar. The District Court changed its opinion towards this again in its above-mentioned judgment of 7 June 1999: the total period may exceed six months.
16. 500 UNTS p. 95; Trb. 1962 No. 101.
17. ETS No. 74; Trb. 1973 No. 43.
18. ILM (1987) p. 625Google Scholar; ETS No. 74. For the final draft of 1991 see 30 ILM (1991) p. 1565.Google Scholar
19. ILA Report of the Sixtieth Conference, Montreal, 1982, p. 325Google Scholar et seq. For the amended draft of 1994 see ILR Report of the Sixty-Sixth Conference, Buenos Aires, 1994, p. 488.Google Scholar
20. Reported for the most part in NIPR (1998) No. 238.
21. A. appealed in cassation against this judgment to the Supreme Court. Venezuela did not thereafter respond to calls for procedural action. The parties finally decided to settle the matter out of court, after which the appeal was struck out on 15 October 1999.
22. 17 NYIL (1986) pp. 256–257.Google Scholar
23. It was not until 30 July 1998 that Chile issued a writ of summons against Azeta in the proceedings for an objection to the 1984 default judgment. These proceedings were still under way when this case was being dealt with (5 July 2000).
24. The District Court of Amsterdam applied comparable reasoning in the case of E.A. Sodipo v. ABN-AMRO Bank in which Sodipo's application to attach the credit balances of the bank accounts of the Embassy of Nigeria by way of execution of judgment was refused. The District Court based its decision on a declaration of the Embassy, lodged by the Bank, in which it was stated that the funds were intended ‘for the day-to-day running of the Embassy’ (judgment of 24 February 1999, NJ (1999) No. 622, NIPR (1999) Bo. 42). The application for attachment was made in execution of a judgment of The Hague Sub-District Court of 24 April 1997, in which Nigeria was ordered by default to pay NLG 70,204 on account of the unlawful dismissal of Sodipo on account of arrears of salary and compensation. Sodipo, who had Dutch nationality, worked at the Embassy of Nigeria (Institute's Collection No. 4743). As Nigeria, which had been served with the writ of summons at the address of Republic of Nigeria in Lagos, did not enter an appearance, the District Court gave leave by interim judgment of 20 February 1997 for Nigeria to be served with the writ anew by accelerated procedure at the address of the Nigerian Embassy in The Hague. However, Nigeria did not enter an appearance at the hearing and a default judgment was therefore given against it.
25. Partly reproduced in NIPR (1998) No. 250.
26. In the interim injunction proceedings brought by Aruba against the State of the Netherlands concerning the validity of the amendment of the 6th OCT Decision the Netherlands once again claimed that the court lacked jurisdiction to hear the case, referring in this instance to the fact that the Charter did not contain a provision for the resolution of disputes between the countries of the Kingdom. By judgment of 3 April 1998 the District Court of The Hague held that it lacked jurisdiction. Alt should be stated at the outset that this concerns what can best be described as an inter-State dispute, namely between Aruba and the State. Neither of these countries has accepted the jurisdiction of the national courts for the resolution of their disputes. If the national courts were to assume this power, it would be contrary to the principle of international law of immunity from jurisdiction in inter-State disputes. The Dutch courts therefore lack the international jurisdiction to take cognizance of this dispute and the claims of Aruba therefore founder on this ground alone.
27. Trb. 1967 No. 196. Art. III reads: ‘The nationals of one High Contracting Party shall not be obliged in the territories of the other High Contracting Party to give security for costs or court fees in any case where a national of the latter High Contracting Party would not be so obliged in similar circumstances.’
28. Art. 152 reads: ‘All aliens, whether plaintiffs or third parties, must, at the request of the opposing party, give security for costs, damages and interest which might be awarded against them, before the opposing party is bound to answer the complaint.’
29. 704 UNTS p. 301; Trb. 1962 No. 58.
30. Trb. 1995 No. 294.
31. Note by T. Spijkerboer.
32. Note by Fernhout, R., summarised and discussed by Vermeulen, B.P. in NAV (1998) p. 645Google Scholar. See also Lankers, F., ‘Diepgewortelde band met eigen volk’ [Strong bond with own people], NAV (1999) pp. 91–97.Google Scholar
33. AB (1995) No. 592 with note by Spijkerboer, T., RV (1995) No. 7Google Scholar, with note by Vermeulen, B.P., NAV (1995) p. 367, discussed on p. 302Google Scholar, GV No. 18d-7. The District Court based its decision on previous judgments of the Judicial Division of the Council of State and on paras. 168–172 of the UNHCR Handbook.
34. 189 UNTS p. 137; Trb. 1951 No. 131, amended by Protocol of 31 January 1967, 606 UNTS p. 267; Trb. 1967 No. 76. For the text of Art. 1(a) see infra n. 45.
35. For the text of Art. 15(1) see infra n. 46.
36. GV No. 18e-28, discussed by Hoogenberk, N. in NAV (1997) p. 339.Google Scholar
37. In the cited judgment of 12 April 1995 the same view was taken in respect of Armenia in the context of the conflict in Nagorno Karabach.
38. Dated 17 July 1997.
39. Dated 14 May 1997.
40. Letter to P.J. van Krieken attached as a file document to the judgment.
41. Note by B.P. Vermeulen.
42. Note by H. Tiemersma.
43. Note by I. Sewandono.
44. Also reported in GV No. 18d-30.
45. Art. 1(A), at 2, of the Convention relating to the Status of Refugees 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, unwilling to return to it.’
46. Art. 15, para. 1, of the Aliens Act reads: ‘Aliens originating from a country where they have a well-founded fear of persecution because of their religious or political opinion or their nationality, or because they belong to a certain race or to a certain social group, may request Our Minister to grant them admission as a refugee.’
47. The relevant passage of the preamble reads: ‘Noting mat the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognising that the effective coordination of measures taken to deal with this problem will depend on the cooperation of States with the High Commissioner.’ Art. 31 reads: ‘1. The Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.’
48. 8 ILM (1969) p. 679Google Scholar, Trb. 1972 No. 51. Art. 31 reads: ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’
49. OJ (1996)No. L63/2.
50. 28 NYIL (1997) pp. 353–354.Google Scholar
51. 29 NYIL (1998) pp. 259–262.Google Scholar
52. Note by M. Schreuder-Vlasblom.
53. Note by R.J.N. Schlossels.
54. Note by R. Fernhout.
55. Note by P. Boeles. Summarised in NJB (1999) p. 608Google Scholar, No. 14. Discussed by Nollkaemper, P.A., ‘Volkenrechtelijke aspecten van legalisatie en verificatie van documenten [International Law aspects of legalisation and verification of comments], HR (2000) pp. 123–127Google Scholar and by Olivier, B.K., ‘Twee onafhankelijke gebieden in de wereld van het recht’ [Two independent means in the world of law], MR (2000) pp. 160–164.Google Scholar
56. 527 UNTS p. 189; Trb. 1963 No. 28.
57. Act of 1992. Art. 1:3 reads: ‘Order means a written ruling of an administrative authority constituting a juristic act under public law.’
58. JV (1998) No. 112, with note by B.K. Olivier.
59. The verification of documents from these countries has taken place since 1 April 1996; see Circular of the State Secretary for Justice to the registrars of births, death and marriages of 8 May 1986, reference 555949/96/6, Aliens Circular, C4 Appendix 1, discussed by van der Weij, A. in ‘Legalisatie en verificatie van buitenlandse documenten: helderheid gewenst’ [Legalisation and verification of foreign documents: clarity desired], MR (1997 pp. 99–103Google Scholar and Wouters, K. and Meijers, M., ‘Voortgaande verificatie perikelen’ [Ongoing developments concerning verification], MR (1998) pp. 222–223Google Scholar, Kroes, J.A. and Reurs, M.A.G., ‘Nederland als probleemland-Voortdurende perikelen rond legalisatie en verificatie in de probleemlanden’ [Netherlands as problem country: ongoing developments concerning legalisation and verification in the problem countries], MR (1998) pp. 287–292 and (1999) pp. 3–8.Google Scholar
In the case of J.O. v. the Minister for Foreign Affairs, a request for legalisation was submitted before the relevant date. In consequence, the District Court of Dordrecht held that the new guidelines were not yet in force and that the Minister had therefore acted wrongly by himself immediately arranging for the documents to be verified in Lagos, thereby circumventing the Nigerian Ministry of Foreign Affairs. Nonetheless, there would be no legalisation since the documents had been shown to be false. This was not altered by the fact that they had been previously legalised by the Ministry of Foreign Affairs in Lagos (judgment of 21 August 1998, JB (1999) No. 227 with note by H.J. Simon). The District Court of Haarlem held that the distinction between the five problem countries and the other countries was not contrary to Art. 14 of the European Convention on Human Rights (judgment of 10 August 1998, AB (1999) No. 380, with note by I. Sewandono).
60. But for a different decision see District Court of Haarlem, 10 August 1998, and District Court of Dordrecht, 21 August 1998, see note 59 above and Nationale Ombudsman, 1 May 1998, AB (1998) No. 291. In the latter case the Ombudsman held that the Dutch Embassy in Ghana had taken a decision on legalisation at a very late stage.
61. The District Court referred in this connection to the judgment previously given by the District Court of The Hague to the effect that the Minister of Justice was required to give his own opinion on the procedural and substantive correctness of individual official communications of the Minister of Foreign Affairs in aliens matters (judgment of 16 April 1998, JV (1998) No. 74). Olivier considered this referral to be rather unfortunate since an official communication of this kind entails a recommendation to the Minister of Justice. By contrast, legalisation is of an independent nature (see supra n. 7). As regards the status of official communications and the relationship between the Minister for Foreign Affairs and the Minister of Justice, see also the Public Report of the National Ombudsman of 19 August 1998 (JB (1998) No. 195).
62. The District Court of Haarlem (see supra n. 59) held that the Apostille Convention merely specified that the power of a State to determine whether a foreign document should be accorded significance in that State is assumed by virtue of international transactions. The basis for this power is, however, not the Convention, but the sovereign authority of a State over its own territory.
63. Note by A.H.J. Swart.
64. Note by B.P. Vermeulen.
65. For the text of Art. 3, see supra n. 12.
66. 1465 UNTS p. 85; ILM (1984) p. 1027Google Scholar; Trb 1985 No. 69. The text of Art. 3 reads: ‘1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’
67. 29 NYIL (1998) pp. 272–278.Google Scholar
68. Art. 2(1) reads: ‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of the sentence of a court following his conviction of a crime for which this penalty is provided by law.’
69. Art. 19(1) reads: ‘The controllers are authorised, either on the grounds of concrete indications about illegal residence or to combat illegal residence, to stop persons as quickly as possible after they cross the border in order to establish their identity, nationality and status for residence purposes. A person who alleges that he is a Dutch national but is unable to prove this may be subjected to the means of coercion referred to in paragraphs 2 and 4. The documents which an alien must possess for the establishment of his identity, nationality and status for residence purposes shall be designated by order in council.’
70. Art. 19(2) reads: ‘If the identity of the person stopped for questioning cannot be established immediately or it is not immediately apparent that he is allowed to reside in the Netherlands, he may be taken to a place of interview. He shall not be detained there for more than six hours, subject to the proviso that the time between midnight and 9 a.m. is disregarded.’
71. Note by A.R. Neerhof; summarised in AB Kort (1998) No. 657.
72. Trb. 1996 No. 258.
73. 509 UNTS p. 64, Trb. 1960 No. 69.
74. In the unofficial English version of the Treaty included in the United Nations Treaty Series, the term ‘river police functions’ is used.
75. Art. 12(1) reads: ‘It is forbidden, without a licence from Our Minister or in contravention of conditions contained in such a licence, to perform acts, to cause acts to be performed or to tolerate acts which are harmful to an area of natural beauty or to the scientific significance of a protected nature conservation area or which mar such a nature conservation area.’
76. Trb. 1984 No. 118.
77. For the text of Arts. 21 and 22 see under Held.
78. For the text of Arts. 1(2) and 4, see under Held.
79. Trb. 1972 No. 51. Art. 18 reads: ‘A State is obliged to refrain from acts which would defeat the object and purpose of a Treaty when: (a) it has signed the treaty or has exchanged instrument constituting the treaty is subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed’.
80. The license, and consequently the decision too, wrongly referral to the ‘Mouth of the Ems-Dollard Estuary’ instead of the ‘Mouth of the Dollard’. The place where the spoil had to be dredged was further specified in the licence as Paap Sand Süd. See map on p. 295.
81. 508 UNTS p. 20.
82. On the same day the Division gave a virtually identical judgment in respect of these legal issues in an appeal brought by the Dutch Society for the Preservation of the Waddenzee against the licences granted on 30 December 1993 (900,000 cubic metres until 1 January 1996), 9 August 1995 (an extra 300.000 cubic metres until 1 January 1996) and 28 September 1995 (extension of both licences until 1 January 1998), JM (1999) No. 13, with note by Van der Meijden.
83. Note by J. de Hullu.
84. NJ (1997) No. 635, with note by G. Knigge. Summarised and discussed by Baauw, P. in NJCM-Bulletin (1997), pp. 1052–1065Google Scholar. Discussed by Myjer, B.E.P. in ‘Getuigen, dienders en Straatburgse rechtsbescherming’ [Witnesses, coppers and Strasbourg legal protection], NJB (1997) pp. 883–889Google Scholar; by Spronken, T. in ‘De hoge Amsterdamse diender en de presumptie van onschuld’Google Scholar [The tall Amsterdam copper and the presumption of innocence], NJB (1997) pp. 1128–1130Google Scholar with postscript by B.E.P. Myjer, pp. 1130–1131; by Schalken, T. and Rozemond, K. in ‘Nieuwe Europese verassingen in Hollandse strafzaken’Google Scholar [New European surprises in Dutch criminal cases], NJB (1997) p. 894Google Scholar; by van Hoorn, A. and Nijboer, H. in ‘Nog steeds onder de maat. Van Mechelen c.s. en de inquisitoire stijl van procederen’Google Scholar [Still not up to scratch. Van Mechelen et al. and the inquisitorial style of procedure]. NJB (1997) pp. 892–893;Google Scholar by Gare, C. and Spronken, T. in ‘Wet bedreigde getuigen niet ‘Straatsburg-proof: De zaak “van Mechelen e.a. tegen Nederland’Google Scholar [Threatened Witnesses Act still not Strasbourg-proof: The case of Van Mechelen et al. v. the Netherlands], Advocatenblad (1997) pp. 545–550;Google Scholar by Myjer, E. in ‘Nu toch maar in revisie?’Google Scholar [Ready for an overhaul after all?], NJCM-Bulletin (1998) pp. 4–13;Google Scholar by van Kempen, P.H.P.H.M.C. in ‘Rechtsvinding als oplossing voor verwerking van EHRM-beslissingen in strafzaken’Google Scholar [Judge-made law as a solution to the implementation of ECHR decisions in criminal cases], Trema (1998) pp. 104–108; by Myjer, E. in ‘To be revised? Revision of res judicata sentences in Dutch criminal cases’Google Scholar in Barkhuysen, T., van Emmerik, M.L. and van Kempen, P.H., eds., The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order, (The Hague, Martinus Nijhoff 1999) pp. 243–253Google Scholar, and by van Kempen, P.H.P.H.M.C. in ‘Judicial interpretation and amendment of the law: review of criminal law decisions on account of Strasbourg judgments’Google Scholar in ibid., at pp. 323–339.
85. Art. 6(1) reads: ‘In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests 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 …’
Art. 6(3) reads: ‘Everyone charged with a criminal offence has the following minimum rights: … (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.’
86. For the text of Art. 457(1)(2), see under Held.
87. The Court of Appeal quashed the judgment of the District Court of ‘s-Hertogenbosch of 12 May 1989, in which Van M. had been sentenced to 10 years’ imprisonment for the same offences.
88. NJ (1992) No. 772, with note by G. Knigge.
89. As damages for pain and suffering caused by the wrongful imprisonment, see Engering, C.C. and Liborang, N.A. in ‘Judgments of the ECHR against the Netherlands’ in Barkhuysen, T., van Emmerik, M.L. and van Kempen, P.H., eds., The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order (The Hague, Martinus Nijhoff 1999) p. 51.Google Scholar In the earlier judgment of 23 April 1997. Van M. had already been awarded an amount for the procedural costs incurred before the European Commission of Human Rights and the European Court of Human Rights. In the case of Dombo Beheer B. V. v. the State of the Netherlands the Court of Appeal of The Hague held that the costs of proceedings in the Netherlands were also eligible for compensation under Art. 50 of the Convention (judgment of 17 July 1997, NJ Kort (1997) No. 75). The European Court of Human Rights had previously granted an amount for the costs of proceedings before the European Commission and the European Court (judgment of 27 October 1993, NJ (1994) No. 534).
90. Art. 50 reads: ‘If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.’
91. Note by R. Fernhout. See also Rieter, E., Van Boven, Th. and Flinterman, C. in ‘Nederland wil asielzoeker uitzetten in strijd met een interim maatregel van het VN-Comité tegen Folteringen’ [Netherlands will expulse an asylum seeker in conflict with an interim ruling of the UN Committee against Torture], NJB (1999) pp. 908–909.Google Scholar
92. With note.
93. Also mentioned under GV No. 24–74.
94. For the text of Art. 108(9) see under Held.
95. For the text of Art. 3 see supra n. 12.
96. For the text of Art. 3 see supra n. 66.
97. NAV (1998) No. 52. The District Court also declared that A.'s application for review of the custodial measure was unfounded. The District Court repeated this in its judgment of 12 February 1999, which concerned A.'s application for review of the order continuing the measure (NAV (1999) No. 53).
98. The District Court of The Hague held in its judgment of 30 March 1998 in the case of D.M. v. State Secretary for Justice (JV (1998) No. 77, with note by T. Spijkerboer, summarised and discussed by Pastoors, K. in NAV (1998) p. 317)Google Scholar, that it could be inferred from the case-law of the European Court of Human Rights and the rulings of the Committee Against Torture that the same criterion applied in determining the extent of the risk for the acceptance of refugee status under Art. 15(1) of the Aliens Act in conjunction with Art. 1(A)(2) of the Refugee Convention and violation of Art. 3 of the European Convention on Human Rights and Art. 3 of the Anti-Torture Convention of 1984. According to the District Court, the three instruments did not provide international protection against the purely arbitrary risk that someone might run in the event of a (compulsory) return. In order to invoke these instruments successfully, it is necessary to make out a plausible case that the person concerned personally runs the risk expressed by the words ‘well-founded fear’ or ‘real risk’. The designation of risk categories of Tamils in the official reports of the Minister for Foreign Affairs should therefore be interpreted as meaning that with regard to these categories of persons a fear of persecution or a real risk of violation of Art. 3 of the European Convention on Human Rights or of torture within the meaning of the Anti-Torture Convention should be readily assumed if it is plausibly demonstrated not only that the person concerned belongs to one or more of the risk categories but also that there are special circumstances giving rise to a suspicion that the ‘negative attention’ of the Sri Lankan authorities is focused on the person concerned.
99. On 12 May 1999 the Committee held in an interim ruling that A.'s communication was admissible (NAV (1999) No. 86, JAV (1999) No. 160). It requested the Netherlands to make clear what measures had been taken to have A. examined by a doctor in connection with the torture that he had suffered. Finally, the Committee noted as follows: ‘Furthermore, the Committee notes the State party's statement that it saw no reason to honour the Committee's request under rule 108, paragraph 9, of its rules of procedure not to expel the author while his communication is under consideration. The Committee considers that the State party, in ratifying the Convention and voluntarily accepting the Committee's competence under Art. 22, undertook to co-operate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.
Under rule 110, paragraph 3, of the rules of procedure the Committee reiterates its view that it would be desirable not to return the author to Sri Lanka while his communication is under consideration by the Committee. However, such expression of its views does not prejudge the Committee's final decision on the merits of the communication.’
100. Note by J.H. van der Veen. Summarised in AB Kort (1999) No. 485 and NJB (1999) p. 1702 (No. 12).Google Scholar
101. For the text of Art. 1 see under Held. As regards the previous Decision on Sanctions on International Payments and Financial Services against Iraq, see 22 NYIL (1991) p. 370.Google Scholar For the new Iraq Sanction Decree of 2 August 1997, see 19 NYIL (1998) p. 234.Google Scholar
102. For the relevant text and dates of the resolutions see under Held.
103. For the text of Art. 9 see under Held. As regards the Act in general see also 12 NYIL (1981) p. 292Google Scholar, and Kuyper, P.J., ‘The Netherlands in International Law of Export Control’, Jurisdictional Issues (1992) pp. 117–145.Google Scholar
104. Resolution 660 of 2 August 1990 and Resolution 661 of 6 August 1990.
105. 993 UNTS p. 243; 12 ILM (1973) p. 1085;Google ScholarTrb. 1975 No. 23 (the species is mentioned on page 53).
106. This is the national ‘Management Authority’ referred to in Art. XI of the Convention. In the Netherlands, this authority is part of Laser, which is itself part of the Ministry of Agriculture, Nature Management and Fisheries.
107. Council Regulation on the protection of species of wild fauna and flora by regulating trade therein, 9 December 1996, OJ (1997) p. L 61/1.Google Scholar
108. This is not the text of Art. VII(4). Presumably this should be a reference to Art. VIII(4). The complete text of this provision reads as follows: ‘Where a living specimen is confiscated as a result of measures referred to in paragraph 1 of this Article: (a) the specimen shall be entrusted to a Management Authority of the State of confiscation; (b) the Management Authority shall, after and consultation with the State of export, and returned the specimen to that State at the expense of that State, or to a rescue centre or such other place as the Management Authority deems appropriate and consistent with the purposes of the present Convention; and (c) the Management Authority may obtain the advice of a Scientific Authority, or may, wherever it considers it desirable, consulted the Secretariat in order to facilitate the decision under subparagraph (b) of this paragraph, including the choice of a rescue centre or other place.’
109. Director of the Wildlife Conservation Society.