No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 07 July 2009
1. Note by C. Backes. See also note by Backes on the decision of the Council of State, Administrative Law Division, 31 March 2000, in the case of M. Hoogenbosch and others v. the Provincial Executive of Noord-Holland (AB (2000) No. 302, JB (2000) No. 138 with note by H.L. Janssen, LJN-No. AB 1152 (www.rechtspraak.nl).
2. Note by H.L. Janssen.
3. Note by Verschuren; summarised in AB kort (2000) No. 360, LJN-No. AA 6571 (www.rechtspraak.nl).
4. Art. 24(3) reads: ‘No person may, without necessity, alarm an animal belonging to a protected species, disturb, damage or destroy its nest, burrow or breeding or resting site, or take possession of the nest of such an animal or buy or offer to buy, sell or offer to sell, have in one's possession for the purpose of sale, exchange, transport or offer to transport, exhibit or import into or export from the Netherlands such a nest.’
5. OJ (1992) No. L 206 p. 7. For the text of Art. 12(1)(b) and (d), see below under Held.
6. Council of Europe Convention on the conservation of European wildlife and natural habitats, conluded at Bern, 1284 UNTS p. 209; ETS No. 104; OJ (1982) No. L 38; Trb. 1979 No. 175.
7. For the text of Art. 6(b), (c) and (e) of the Convention, see under Held.
8. For the text of Art. 16(1) of the Directive and Art. 9(1) of the Convention, see under Held.
9. Art. 2 reads: ‘Exemption or dispensation may be granted in respect of wild fauna and flora belonging to protected species which are referred to in Art. 23, paragraph 1, and Art. 24 of the Act if no other satisfactory solution exists and the exception or dispensation will not be detrimental to the efforts to maintain the populations of the species concerned at a favourable conservation status in their natural range: (a) in the interests of protecting the wild flora and fauna and conserving their natural habitats; (b) […]; (c) in the interests of public health and safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; …’
10. In the judgment referred to above in n. 1 the Division dealt at rather more length with these findings. It held there as follows: ‘2.6.2.6. Under the established case-law of the Court of Justice a distinction must be made between correct and incorrect implementation of a directive when determining its operation. In the case of correct implementation a directive takes effect in relation to private persons through the implementation measures taken by the Member State concerned. Only where, upon the expiry of the implemention period, a directive has not been implemented or has been implemented late or incorrectly can a private person directly invoke the directive concerned and even then may invoke only the provisions of the directive that are unconditional and have been defined with sufficient accuracy (judgment 8/81, Becker, , Jur. 1992, pp. 59 et seq. on pp. 70–71Google Scholar). Under the established case-law of the Court of Justice, the judicial authorities of the Member States should guarantee the legal protection for litigants that arises from the direct effect of Community law (judgment C-312/93, Peterboreck, 14 December 1995). It follows from the above that the question of the direct effect of the provisions of the directive can arise only in the case of incorrect implementation.’
11. In the case referred to above in n. 1, the Division held that Art. 6 of the Habitat Directive had not been implemented in Dutch law and that for this reason interpretation of municipal law in conformity with the Directive in order to make up for the lack of implementation was not possible. The Division then considered whether Art. 6 had direct effect. Art. 6(2) could be said to be unconditional and sufficiently accurate. The national courts could therefore rely on this provision. The disputed order had taken no account of the obligations of Art. 6(2) and was therefore null and void. As regards the parts of the local plan that had been designated as an state nature conservation area the Division held, however, that although Arts. 12 and 16 of the Nature Conservancy Act did not constitute an implementation of Art. 6(2) of the Directive, they could serve as the basis of an interpretation in conformity with the Directive. The order had not reviewed the case in the light of the conditions contained in them either. The Order was accordingly null and void for this reason too.
12. In the case of Stichting Centrale Dorpenraad Landclijk Noord and the Vereniging tot Behoud van het IJsselmeer v. the Minister of Transport, Public Works and Water Management, the Division dismissed a claim based on the Convention of Ramsar of 1971, since there was no evidence that the provisions of that Convention could be invoked before the courts as binding on all persons within the meaning of Art. 93 of the Constitution (judgment of 11 January 2000, JB (2000) No. 49, with note by A.W. Heringa).
13. LJN-No. AA 3368 (www.rechtspraak.nl), note by Vlas, P. under NJ (2001) No. 568Google Scholar. Summarised and discussed by Spiegel, J. in 47 NILR (2000) pp. 359–367CrossRefGoogle Scholar. Also summarised in NILOS Newsletter (2001) No. 18, p. 6.Google Scholar
14. 176 LNTS p. 2000; Stb. 1936 No. 98. Art. 3(1) reads: ‘The provisions of the two preceding Articles shall not be applicable to ships of war, government yachts, patrol vessels, hospital ships, auxiliary vessels, supply ships, and other craft owned or operated by a State, and used at the time a cause of action arises exclusively on governmental and non-commercial service, and such vessels shall not be subject to seizure, attachment or detention by any legal process, nor to judicial proceedings in rem. Nevertheless, claimants shall have the right of taking proceedings in the competent tribunals of the State owning or operating the vessel, without that State being permitted to avail itself of its immunity: (1) in case of actions in respect of collision or other accidents of navigation; (2) in case of actions in respect of assistance, salvage and general average; (3) in case of actions in respect of repairs, supplies, or other contracts relating to the vessel.’
15. ETS No. 74; Trb. 1973 No. 43. Art. 30 reads: ‘The present Convention shall not apply to proceedings in respect of claims relating to the operation of seagoing vessels owned or operated by a Contracting State or to the carriage of cargoes and of passengers by such vessels or to the carriage of cargoes owned by a Contracting State and carriage on board merchant vessels.’
16. Report of the ILC on the work of its 43rd session, 29 April-19 July 1991, UNGAOR, A/46/10. Art. 16 reads: ‘1. Unless otherwise agreed between the States concerned, a State which owns or operates a ship cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the operation of that ship if at the time the cause of action arose the ship was used for other than government non-commercial purposes. 2. Paragraph 1 does not apply to warships and naval auxiliaries nor does it apply to other ships owned or operated by a State and used exclusively on government non-commercial service. 3. For the purposes of this Article, ‘the proceedings which relates to the operation of the ship’ means, inter alia, any proceeding involving the determination of a claim in respect of: (a) collision or other accidents of navigation; (b) assistance, salvage and general average; (c) repairs, supplies and other contracts relating to the ship; (d) consequences of pollution of the marine environment.’
17. NIPR (1999) No. 278.
18. Ibid.
19. The Supreme Court referred to this ruling in its judgment of 22 September 2000 in the case of the government of the United States of America, Department of the Navy, Military Sealift Command v. P.C. van der Linden (RvdW (2000) No. 191C, NJ (2001) No. 568 with note by Vlas, P., NIPR (2001) No. 32Google Scholar, summarised in NJB (2000) No. 191C (p. 1794), LJN-No. AA 7203 (www.rechtspraak.nl)). A ship known as ‘Henny L’, which belonged to Van den Linden, suffered damage while bunkering the ‘Altair’, a vessel belonging to the United States, in the port of Antwerp in November 1988. Van der Linden sued for damages before the District Court of Rotterdam. The United States claimed immunity from jurisdiction because the ‘Altair’ had the legal status of a public vessel at that time. The District Court rejected this argument (judgment of 18 April 1996 (S&S (1996) No. 83, NIPR (1996) No. 446, 28 NYIL (1997) pp. 344–346. The Court of Appeal of The Hague upheld this interim judgment (ruling of 1 September 1998, NJkort (1999) No. 27, NIPR (1998) No. 318). The United States then appealed in cassation to the Supreme Court, which held the appeal to be well-founded. The fact that the claim had not arisen in the Netherlands did not alter the situation. The Supreme Court then referred the case back to the Court of Appeal of Amsterdam for a further investigation of the status and function of the ‘Altair’ at the time of the incident.
20. 199 UNTS p. 67; Trb. 1951 No. 114. Art. VIII(5) reads: ‘Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or part of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions: […] (h) Except in so far as sub-paragraph (e) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connection with the navigation or operation of a ship or the loading, carriage or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply.’
21. The Court of Appeal was of the opinion that the Convention could not be invoked by the United States because there had not been a seizure of a vessel or an action in rem as referred to in Art. 3 § 1(1). The US considered this an unduly narrow interpretation of the provisions of Arts. 1–3.
22. Art. 6 reads: ‘The provisions of this Convention shall be applied in each contracting State, with the reservation that its benefits may not be extended to non-contracting States and their nationals, and that its application may be conditioned on reciprocity. On the other hand, nothing will prevent a contracting State from regulating by its own laws the rights accorded to its own nationals in its own courts.’
23. In the end the case was not brought before the Court of Appeal of Arnhem. The parties reached a settlement after negotiations. The same occurred in the ‘Altair’ case.
24. Note by F.H. van den Burg.
25. Note by Janssen, H.. Partially reproduced in NJB (1999) p. 1661, No. 122 C.Google Scholar
26. Note by Janssen, H.. Partially reproduced in NJB (1999) p. 1662, No. 123 C.Google Scholar
27. OJ (1991) No. L 263/1.
28. 1155 UNTS p. 331; 8 ILM (1969) p. 679; 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 a treaty or has exchanged instrument constituting the treaty subject to ratification, accepts 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.’
29. JB (1997) No. 248, with note by Heringa, A.W., Tijdschrift voor Antilliaans Recht-Justitia (1998) p. 248.Google Scholar
30. JB (1997) No. 259, with note by Heringa, A.W., NJkort (1997) No. 95.Google Scholar
31. JB (1997) No. 272, with note by A.W. Heringa.
32. OJ (1997) No. L 329/50. The Decision took effect on 1 December 1997. Emesa thereupon applied to the District Court of The Hague for an interim injunction restraining Aruba, the State of the Netherlands and the Principal Commodity Board for Arable Produce from refusing to issue it with EUR-1 certificates on the ground of the new Decision as long as the European Court of Justice had not given a preliminary ruling on the issues referred to it. The President of the District Court granted the injunction against Aruba, but declared that the application against the State and the Principal Commodity Board was not admissible. The Trade and Industry Appeals Board would have to consider these applications. The District Court also referred a number of fresh issues to the European Court of Justice for a preliminary ruling (judgment of 19 December 1997). The Appeals Board dismissed the subsequent application by Emesa on 12 February 1998 (JB (1998) No. 119, KG (1998) No. 118, NJB-Katern (1998) p. 795 No. 17)Google Scholar. The European Court gave preliminary rulings on the issues referred by the District Court in the case of Emesa v. Aruba (C 17/98) on 8 December 2000. In its rulings the Court of Justice made clear when the national courts could grant interim relief to prevent an imminent violation of Community law (notice in OJ (2000) No. C 102/5). Emesa was refused an EUR-1 certificate by the customs department of the district of Rotterdam by decision of 24 February 1998. Aruba then applied to the District Court of The Hague for an interim injunction restraining the State of the Netherlands from refusing such a certificate while the European Court of Justice had not yet decided on the preliminary rulings. The President of the District Court dismissed the application. He held, inter alia, as follows: ‘It should be said at the outset that the present case concerns what may best be described as an inter-State dispute, namely between Aruba and the State of the Netherlands. These two countries have not accepted the jurisdiction of the national court for disputes between them. If the national court were to assume jurisdiction, this would be contrary to the international law principle of immunity from jurisdiction in inter-State disputes. The Dutch courts therefore lack jurisdiction to take cognizance of this dispute and the claims made by Aruba must therefore fail.’
33. Institute's Collection No. R4764. The State appealed against this judgment to the Court of Appeal of The Hague. The Court of Appeal held that since it had ruled in its judgment of 20 November 1997 that the District Court lacked jurisdiction, the District Court no longer had jurisdiction to refer questions for preliminary rulings either (judgment of 1 October 1998, NJkort (1998) No. 8). The request of the District Court for a preliminary ruling was withdrawn on 20 January 2000 (registered under case C-17/98) (OJ (2000) No. C 122/17).
34. It was argued that the Decision had wrongly been passed by a majority of votes; compare in this connection de Werd, M., in ‘Een Rijkshof voor het Koninkrijk’ in NJB (1997) pp. 1851–1852.Google Scholar
35. Reference is made here in the arguments to the Treaty of Amsterdam of […] which has been signed but not yet ratified.
36. Note by A. Takkenberg.
37. 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(D) see under Held.
38. 213 UNTS p. 221; ETS No. 5; Trb 1964 No. 69. Art. 3 reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
39. Art. 8 reads: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
40. Note by A. Takkenberg.
41. Note by T.P. Spijkerboer.
42. Art. 1(A)(2) reads: ‘For the purposes of the present Convention, the term “refugee” shall apply to any person who: […] (2) […] 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 the country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it’.
43. 1465 UNTS p. 85; ILM (1984) p. 85; Trb. 1985 No. 69. Art. 1(1) reads:‘For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the investigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’
44. Art. 16(1) reads: ‘Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Art. 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Arts. 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.’
45. Note by T.P. Spijkerboer.
46. Note by T.P. Spijkerboer.
47. Art. 15(3) reads: ‘Our Minister may cancel the admission in accordance with the provisions of Article 14, paragraph 1, and also in cases where as a result of changed circumstances, the alien is afforded the opportunity of taking up residence outside the Netherlands without risk of persecution, unless he has compelling reasons arising out of previous persecution, not to take that opportunity.’
48. Art. 1(C)(1) reads: ‘This Convention shall cease to apply to any person falling under the terms of section A if: (1) He has voluntarily re-availed himself of the protection of the country of his nationality; …’
49. Para. 119; for the text see under Held.
50. GV No. 18a-21, NAV (1999) p. 65, discussed on p. 5.
51. RV (1999) No. 8 with note by Terlouw, A.B., NAV (1999) No. 129Google Scholar, with note by Koch, S., JV (1999) No. 240Google Scholar, GV No. 18f-53.
52. Para. 125 reads: ‘Where a refugee visits his former home country not with a national passport but, for example, with a travel documents issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.’
53. The Court adopted the same line of reasoning in another case decided on the same day between an asylum-seeker from Iraq and the State Secretary for Justice, NAV (2000) No. 85, with note by M. de Jong.
54. LJN-No. AA4050 (www.rechtspraak.nl).
55. Art. 317 reads: ‘Any public officer or other person in charge of a public service who, abusing his official capacity or powers, compels or induces anyone to give or promise him money or other asset to himself or another person shall be punished with a term of imprisonment of four to twelve years.’ Art. 357 reads: ‘Definition of a public officer. For purposes of criminal law, public officers shall be employees of the State or of another public body who exercise public legislative, administrative or judicial functions. For the same purposes, public administrative functions are those functions which are governed by rules of public law and by authoritative acts and which are characterised by the formation and manifestation of the will of the public administration or by its performance by means of authoritative or certification powers.’
56. Art. 328 ter reads: ‘A person who, in a capacity other than that of public servant, either in the service of his employer or acting as an agent, accepts a gift or promise for something he has done or refrained from doing, or will do or will refrain from doing, in the service of his employer or in the exercise of his mandate, and who, contrary to the dictates of good faith, conceals the acceptance of such gift or promise from his employer or principal, is liable to a term of imprisonment of not more than one year or a category 5 fine.’
57. 359 UNTS p. 273; ETS No. 24; Trb. 1965 No. 9. Art. 2(1) reads: ‘Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months.’
58. Art. 12(2) reads: ‘The request shall be supported by: […] (c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality.’
59. He referred to the UN Convention on the Privileges and Immunities of the Specialised Agencies of 1947.
60. LJN-No. AA8395 (www.rechtspraak.nl). The translated text of the decision is also published in 3 YIHL (2000) pp. 677–691 and reported by E. van Sliedrecht and N. Keijzer on pp. 548–550. The decision is further discussed by Strijards, G.A.M. in ‘Nederlands dualisme en zijn strafmaat’ [The Dutch dualism and its jurisdiction], 75 NJB (2000) pp. 2113–2119Google Scholar, by Klip, A.H. in ‘Dubbele vervolging voor de decembermoorden’ [Double prosecution for the December murders], 75 NJB (2000) pp. 2120–2121Google Scholar and by van der Oije, P.J.C. Schimmelpennick in ‘A Surinam Crime Before a Dutch Court: Post-Colonial Injustice or Universal Jurisdiction?’, 14 Leiden JIL (2001) pp. 455–476.CrossRefGoogle Scholar
61. Art. 12 of the Code of Criminal Procedure reads: ‘1. If an offence is not prosecuted or the prosecution is not pursued, a party having a direct interest may submit a written complaint about this to the Court of Appeal within whose jurisdiction the decision not to prosecute or not to pursue the prosecution has been taken. 2. A party having a direct interest is deemed to include a legal entity which, according to its objects and as evidenced by its actual work, represents an interest that is directly affected by the decision not to prosecute or not to pursue the prosecution.’
62. Art. 5(1)(2) reads: ‘Dutch criminal law is applicable to Dutch nationals who commit, outside the Netherlands, an offence regarded as an indictable offence in Dutch criminal law and punishable under the law of the country where it was committed.’
63. 993 UNTS p. 3; ILM (1967) p. 360; Trb. 1969 No. 100.
64. Art. 15 reads: '1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.’
65. Art. 16 reads: ‘No offence is punishable other than by virtue of a pre-existing statutory criminal provision.’
66. Stb. 1988. No. 478.
67. The complainants had previously submitted a complaint under Article 12 of the Criminal Code in 1996. The Court of Appeal dismissed the complaint on that occasion because the Public Prosecution Service had not yet taken a final decision on whether or not to prosecute. After the Public Prosecution Service had informed the complainants on 13 May 1997 that it had definitely decided not to prosecute, they once again filed the present complaint.
68. LJN-No. AA8428 (www.rechtspraak.nl). The Procurator General at the Court of Appeal had for this reason advised against bringing criminal proceedings.
69. 1465 UNTS p. 85; ILM (1984) p. 1027; Trb. 1985 No. 69.
70. LJN-No. AA5014 (www.rechtspraak.nl). NJ (2000) No. 266, summarized in DD (2000) p. 756. Professor Dugard was appointed by decision of 26 April (LJN-No. AA8429, www.rechtspraak.nl). He was requested to reply before 15 July.
The decision of the Court was discussed by R. van Dongen in ‘De Decembermoorden berecht’ [The December murders on trial], 75 NJB (2000) pp. 1137–1144.
71. LJN-No. AA8427 (www.rechtspraak.nl).
72. The Procurator General at the Supreme Court appealed against this decision to the Supreme Court in the interests of the law. On 18 September 2001 the Supreme Court quashed the decision of the Court of Appeal, see infra pp. 282–296.
73. 997 UNTS p. 11. Art. 3 reads: ‘All Netherlands nationals of full age who were born in Surinam and whose domicile or place of actual residence is in the Republic of Surinam on the date of the entry into force of this Agreement shall acquire Surinamese nationality.’
74. Dugard advances the following argument in support of the distinction: ‘… This is an issue to be decided by a Dutch court applying its own rules of interpretation, general principles and traditions. It may, however, be helpful to consider the experience of the Canadian courts in applying a statute which gave retrospective effect to crimes against humanity committed outside Canada in the face of a prohibition on retroactive legislation contained in the Canadian Charter of Rights and Freedoms. Here the courts upheld the validity of the Canadian statute on the ground that it did not violate the prohibition on retrospectivity because the conduct in question was “criminal according to the general principles of law recognized by the community of nations”.[footnote 104: Section 11(g) of the Charter of Rights and Freedoms]. In so deciding the courts drew a helpful distinction between a retroactive statute, which violated the Charter of Rights and Freedoms, and a retrospective statute which did not. “The distinction between a ‘retroactive’ statute, as opposed to one with a ‘retrospective’ application, is significant. According to the definition contained in 44 Hals. 4th edn., p. 572, a retroactive penal statute is one which is ‘intended to render criminal an act which was innocent when it was committed’. Doherty, David H. (now Mr. Justice Doherty), in an article entitled, ‘What is Done is Done: An argument in Support of a Purely Prospective Application of the Charter of Rights’, (1982) 26 C.R. (3d) 121Google Scholar, defines both ‘retroactive’ and ‘retrospective’ statutes as follows [at p. 125]: A retroactive statute is one which is proclaimed to have effect as of a time prior to its enactment. The statute operates backward and changes the law as of some date prior to proclamation … A retrospective statute is one which proclaims that the consequences of an act done prior to proclamation are to be given a different legal effect after proclamation as a result of the enactment of the statute. It operates only in the future, after proclamation, but changes the legal effect of an event which occurred prior to proclamation.
Keeping these definitions in mind, there is clearly a difference between a retroactive and a retrospective application. A retroactive application takes an act or omission that was not previously criminal, and retroactively deems that act or omission to be criminal as at a later date. A retrospective statute, on the other hand, does not create new offences. Rather, as in this case, it merely operates to retrospectively give Canadian courts jurisdiction over criminal offences committed outside of Canada." [footnote 105: R. v. Finta 82 ILR 425 at 432. This approach was followed by the Ontario Court of Appeal in R. v. Finta 98 ILR 520 at 574]
If a Dutch court were to give a retrospective interpretation to the 1988 Act to permit Bouterse to be prosecuted for torture committed in 1982 on the basis of universal jurisdiction it would not violate Article 15 of the International Covenant on Civil and Political Rights which provides that nothing in the prohibition on the retroactivity of criminal law “shall prejudice the trial and punishment of any person for any act or omission which at the time it was committed, was criminal according to the general principles of law recognized by the community of nations.[footnote 106: See too Article 7(2) of the European Convention on Human Rights. See van Dongen, R. “De Decembermoorden berecht?”[23 NJB (9 06 2000) 1137, 1141] …’Google Scholar
75. Art. 94 reads: ‘Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of decisions by international institutions that are binding on all persons.’
76. Under Art. 95 of the Judiciary (Organisation) Act, the Procurator General of the Supreme Court may ‘in the interests of the law’ appeal in cassation to the Supreme Court against decrees and decisions of Courts of Appeal, District Courts and Sub-District Courts (known as ‘cassation in the interests of the law’). The aim of such appeal is to ensure the uniform application of the law. Such a decision of the Supreme Court does not affect the rights of the parties in the particular case (Art. 98 of the Judiciary (Organisation) Act).
77. LJN-No. AB 1471 (www.rechtspraak.nl); JOL (2001) No. 484 (www.juriforum.nl). Partly published in 75 NJB (2001) pp. 1856–1857 (No. 145) and in AA (2002) p. 99 with note by Y. Buruma. Commented by Strijards, G.A.M. in ‘Nederland en ‘zijn’ Internationaal Strafhof’[The Netherlands and ‘its’ International Criminal Court], VN Forum (2001) No. 4, pp. 28–44 at pp. 32–33Google Scholar, and by Ferdinandusse, W.N., Kleffner, J.K. and Nollkaemper, P.A. in ‘Origineel of reproductie? Internationale strafbaarstelling in the Nederlandse rechtsorde’ [Original or reproduction? Offences made punishable internationally in the Dutch legal order], NJB (2002) pp. 341–349.Google Scholar See also Zegveld, L. ‘The Bouterse case’, infra pp. 97–118.Google Scholar
78. See n. 75 above.
79. See n. 65 above.
80. Art. 1 reads: ‘1. No offence is punishable other than by virtue of a pre-existing statutory criminal provision. 2. Where the law is changed after the time at which the offence was committed, the provisions most favourable to the accused shall be applicable.’
81. For the text of Arts. 1 and 2 see below under Held.
82. Art. 7 reads: ‘1. No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.’
For the text of Art. 15 see supra n. 64.
83. For the text of Art. 5 of the Implementation Act and Art. 5(1) and (2) of the Convention, see below under Held.
84. See supra pp. 266–282.
85. The grounds of appeal in cassation and the explanatory notes of acting Advocate General N. Keijzer can also be found on-line in the source referred to in n. 1.
86. The examining magistrate at the District Court of Amsterdam then granted the application for the institution of a preliminary judicial examination by the Public Prosecution Service on 30 January 2001 (Institute's Collection No. 5026). He adopted the opinion of the Court of Appeal that the claim could be based on the Implementation Act. He rejected the claim in so far as it was based on the Wartime Criminal Law Act. Application was also made to the examining magistrate in Arnhem because the Military Judge of the District Court of Arnhem had jurisdiction in respect of the prosecution of war crimes as defined in the Wartime Criminal Law Act. The examining magistrate too considered that the Wartime Criminal Law Act did not apply. Unlike the examining magistrate in Amsterdam, however, he also rejected the claim that the Implementation Act had retroactive effect. He thus dismissed the application for the institution of a preliminary judicial investigation (decision of 22 December 2000, Institute's Collection No. 5025).
87. The Supreme Court used the Dutch translation.
88. See 20 NYIL (1989) pp. 274–275.
89. See 4 NYIL (1973) pp. 433–435.
90. The term ‘wet in materiele zin’ means general binding provision (instead of binding on one person only) and includes not only Acts of Parliament, but also Royal Decrees, Ministerial Orders, Provincial and Municipal Decrees and in the view of some commentators, Treaties.
91. Art. 7 reads: ‘1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed. Nor shall a heavier penalty be imposed than the one mat was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.’
Art. 15 reads: ‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’
92. This was the express request of the Procurator General.
93. See 19 NYIL (1988) p. 341.
94. See 4 NYIL (1973) pp. 429–430.
95. See the Judgment referred to below at 5.274.
96. 19 ILM (1980) p. 1492, OJ (1980) No. L. 266, Trb. 1980 No. 156.
97. 500 UNTS p. 95; Trb. 1962 No. 101. Art. 31(1) reads: ‘A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the preceding State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.’
Art. 37(1) reads: ‘The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.’
98. Art. 116 reads: ‘1. In urgent cases each of the parties may, unless an application for an interim injunction as referred to in Article 289 has already been instituted, request, until the Sub-District Court has decided on the application by way of final judgment, that the Sub-District Court make a provisional order.’
99. ETS No. 74; Trb. 1973 No. 43.
100. For the judgment of the Sub-District Court Judge on the application see supra under 5.22.
101. Note by I.J.J. Burgers (at BNB (2000) No. 17), LJN-No. AA 2898 (www.rechtspraak.nl).
102. For the relevant text see infra n. 109.
103. Trb. 1959 No. 85. Art. 25 reads [UNTS translation]: ‘(1) In dealing with matters arising out of this Agreement, the chief financial authorities of the Contracting States may enter into direct contact with each other. (2) Where any difficulty or doubt arises in the interpretation or application of this Agreement, or where any hardship occurs through double taxation for which the Agreement does not provide, the chief financial authorities shall settle the matter by arrangement between them. They shall consult each other before issuing any regulations for giving effect to this Agreement.’
104. Art. 10 reads [UNTS translation]: ‘(1) Where an individual domiciled in one of the Contracting States derives income from employment in the other State, the said income shall be subject to taxation by the latter State. (2) Notwithstanding paragraph (1), income derived from employment shall be taxable solely in the Contracting State in which the employed person is domiciled if: 1. he is present in the other State temporarily [tijdelijk], for a total of not more than 183 days in one calendar year; […]’
105. Série de Publications de la Societé des Nations II. Questions économiques et financières 1946. II.A.7, p. 65.
106. The authentic German text reads: ‘Abweichend von Absatz I können Einkünfte aus nichtselbständiger Arbeit nur in dem Vertragstraate besteuert werden, in dem der Arbeitnehmer seinen Wohnsitz hat, wenn dieser Arbeitnehmer (1) sich vorübergehend, zusammen nicht mehr als 183 Tage im Lauf eines Kalenderjahres, in dem anderen Staat aufhält(…).’
107. See under Held.
108. Printed at BNB (2000) No. 16.
109. The Order reads as follows: ‘1. With regard to the application of Article 10 of the Tax Agreement concluded between the Netherlands and the Federal Republic of Germany of 16 June 1959 […] I can inform you as follows. Following the discovery of difficulties in the interpretation of that article, the following agreement on the interpretation of the concepts “temporarily” and “present” in Article 10(2) of the Agreement has been reached between the Dutch and German competent authorities. […] 2. “Temporarily” – the term “temporarily” in Article 10(2), opening words and 1, of the Agreement should be interpreted in accordance with the interpretation of Article 15 of the 1992 OECD Model Convention on this point. This means that no independent meaning should be attributed to the term “temporarily” and that presence in the country where the employment is performed as referred to in the provision concerned is assessed only by reference to the 183-day criterion. 3. […]; 5. Entry into effect – The present order applies with effect from the date of publication of the order and can also apply in relation to assessments which have not yet been finalised on or after the date of publication of the present order. […] In the light of the above interpretation, agreed by the Dutch and German authorities, of Article 10 of the Dutch-German Tax Agreement the judgment of the Court of Appeal of Arnhem of 19 December 1966, No. 630/64, and the Court of Appeal of The Hague of 23 February 1970, No. 98/1969, in which the word “temporarily” was accorded an independent significance, should no longer serve as guideline.’
110. In dealing with the ground of appeal the Advocate General – Mr Van den Berge – also referred to Art. 31(3)(a) of the Vienna Convention on the Law of Treaties, which deals with the relevance of any agreement subsequently reached between the parties regarding the interpretation of a treaty. He therefore advised that account should be taken of any such agreements. He pointed out, however, that this did not in fact say anything about what significance should be attached to the agreement. Under German law the agreement would be binding if the agreement was approved by Parliament. Under Dutch law the approval of Parliament is not necessary if it concerns an implementation agreement. However, the agreement must be notified to Parliament and be officially published. This had not occurred in the present case. The Advocate General also doubted whether an agreement about interpretation could be regarded as an implementation of a treaty.
111. Note by Vlas, P.. Partially reproduced in NJB (2000) p. 599, No. 61 CGoogle Scholar; LJN-No. AA 4877 (www.rechtspraak.nl).
112. 847 UNTS p. 231; Trb. 1979 No. 38. In his opinion the Advocate General referred to Art. 9 of the Convention and the Explanatory Report to the Convention. Art. 9(1) reads: ‘The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.’
113. Art. 843a reads: ‘1. Any person who has a lawful interest in so doing may, at his expense, inspect or obtain a copy of or extract from an instrument executed under hand concerning a legal transaction to which he or his predecessors-in-title were a party from the person who has the instrument at his disposal or in his possession. 2. The court shall, if necessary, decide how the inspection will be allowed or the copy or extract provided.’
114. Art. 23 reads: ‘A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.’
115. Art. 3(1) (e) reads: ‘Where appropriate, the Letter shall specify, inter alia – (e) the names and addresses of ihe persons to be examined.’
116. NIPR (1999) No. 282.
117. Ibid.
118. Instituted by ABN AMRO Bank.
119. 285 UNTS p. 231; Trb 1956. No. 40. Art. V(1) reads: ‘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 jurisdiction, both in pursuit and in defence of their rights. It is understood that companies of either Party not engaged in activities within the territories of the other Party shall enjoy such access therein without any requirement of registration or domesticisation.’
Art. XXIII(1) reads: ‘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, companies, products, vessels or other objects, as the case may be, of such Party.’
120. OJ (1995) No. L 89 p. 30.
121. Art. XXVII(3) reads: ‘Either Party may, by giving one year's written notice to the other Party, terminate the present Treaty at the end of the initial ten-year period or at any time thereafter with respect to all the territories to which it applies or with respect to Surinam or the Netherlands Antilles.’
122. Art. 152 of the Code of Civil Procedure 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.’
123. OJ (1969) No. L 326 p. 39.
124. Italics added by the District Court.
125. It was not until 2 June 1997 that the Council took a new renewal decision in which the period was extended until 30 April 2001, OJ (1997) No. L 151, p. 24.
126. The case ended in February 2001 without a final judgment being given.
127. For the text of Art. 10(2)(a) and (g) see under Held.
128. AWB-katern (1999) No. 21.
129. For a previous comparable judgment see Council of State, Judicial Division, 9 May 1985, 17 NYIL (1986)p. 191.
130. Note by T.M. Schalken; summarised in DD (2000) p. 549.
131. 471 UNTS p. 185; ETS No. 30; Trb. 1965 No. 10; Art. 1 reads: ‘The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences of the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party. 2. This Convention does not apply to arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law.’
132. The Court of Appeal held as follows: ‘Defence counsel submitted at the session of this Court of Appeal on 6 March 1997 that in so far as there had been infiltration under the control and direction of the Public Prosecution Service there was no evidence that the Turkish Public Prosecution Service had also been involved in this control and direction because the file contained no written consent for infiltration. The letter from Irfan Ozliyen, public prosecutor of Istanbul State Security Court, of 29 August 1995 shows that an infiltrator was sent from the Netherlands to Turkey with the consent of the Turkish Ministry of Justice and that this infiltrator received a heroin sample from K.M. [the fourth brother] in Turkey. As the Court of Appeal concludes from this, inter alia, that there was official cooperation by the criminal justice authorities in Turkey in the infiltration action, it rejects the defence submitted by counsel. The Court of Appeal cannot accept the contention of defence counsel that the European Mutual Assistance Convention requires explicit written consent.’
133. Finding 10 contains a report of the coordinating public prosecutor in the Netherlands and finding 11 a summary of the letter from Irfan Ozliyen. The main argument in the fourth ground of appeal is also that the European Convention on Mutual Assistance in Criminal Matters does not relate to infiltration activities, which the Advocate General expressly refutes in findings 22 and 23.
134. According to the Advocate General, this was because there was no need to doubt that the activities had been in accordance with Turkish law.
135. It is stated there that neither the European Mutual Assistance Convention nor the European Human Rights Convention imposes such an obligation; copies are sufficient.
136. Finding 34 reads: ‘It is also submitted in the notes on the ground of appeal, at 6, that the telephone tap carried out in Turkey on the basis of a request for assistance lacks any basis in treaty law since the European Convention on Mutual Assistance does not make provision for this form of assistance.’ However, the view that the European Convention on Human Rights cannot serve as a basis for a telephone tap under a letter of request cannot be accepted as correct in view of what has already been said above about the content of Art. 1(1) of that Convention and of the non-exhaustive nature of the summary in that Convention of the forms of minor assistance in criminal matters [kleine rechtshulp]. Reference should also be made in this connection to the Recommendation of the Committee of Ministers of the Council of Europe No. R (85)10 of 28 June 1985 concerning letters of request with respect to, inter alia, telephone taps. It follows from this Recommendation that the Committee of Ministers also considers that such letters of request can also be granted under the European Convention on Mutual Assistance. This submission too therefore fails.
137. It was alleged to be contrary to international law because the activities of the Dutch investigating official are classified in the Dutch Criminal Code under Title IV – means of coercion. The exercise of these means of coercion in Turkish territory was said to be prohibited under international law. The Advocate General rejected this reasoning on the grounds that the Turkish authorities had given consent for this.
138. Note by T.M. Schalken.
139. 30 ILM (1991) p. 73, Trb. 1990 No. 145. Art. 40 reads: ‘1. Police officers of one of the Contracting Parties who, within the framework of a criminal investigation, are keeping under observation in their country a person who is presumed to have taken part in a criminal offence to which extradition may apply shall be authorised to continue their observation in the territory of another Contracting Party where the latter has authorised cross-border observation in response to a request for assistance which has previously been submitted. Conditions may be attached to the authorisation. On request, the observation will be entrusted to officers of the Contracting Party in whose territory it is carried out. The request for assistance referred to in the first subparagraph must be sent to an authority designated by each of the Contracting Parties and having jurisdiction to grant or to forward the requested authorisation. 2. Where, for particularly urgent reasons, prior authorisation of the other Contracting Party cannot be requested, the officers conducting the observation shall be authorised to continue beyond the order the observation of a person presumed to have committed offences listed in paragraph 7, provided that the following conditions are met: (a) the authorities of the Contracting Party designated under paragraph 5, in whose territory the observation is to be continued, must be notified immediately, during the observation, that the border has been crossed; (b) a request for assistance submitted in accordance with paragraph 1 and outlining the grounds for crossing the border without prior authorization shall be submitted without delay. Observation shall cease as soon as the Contracting Party in whose territory it is taking place so requests, following the notification referred to in (a) or the request referred to in (b) or where authorization has not been obtained five hours after the border was crossed.’
140. Discussed by Molenaar, E.J. in NJB (1999) pp. 550–553Google Scholar. Summarised in NILOS Newsletter (1997) No. 14.Google Scholar
141. Stb. 1970 No. 176. Art. 1 reads: ‘The following are designated as sea areas within the meaning of Art. 1(4)(b), of the Fisheries Act 1963: […] 7. the Zeegat van Goeree up to the water defence situated most seaward.’ Molenaar, supra n. 140, p. 551, notes that in 1988 a Notice to Seafarers specified an inner boundary of the fishery zone measured from the line connecting the sand banks that fall dry at ebb tide; see also the map above.
142. According to Molenaar, supra n. 140, p. 551.
143. Molenaar says that the status of ‘fishery zone’ can be inferred from Art. 1 of the Royal Decree of 23 November 1977 (Stb. 1977 No. 665) to implement Arts. 1, 2 and 3 of the Fisheries Zone Establishment Authorisation Act of 8 June 1977 (Stb. 1977 No. 345), which provides that: ‘There shall be a fishery zone from the baseline of the territorial sea of the Netherlands coast in the North Sea …’ Under Art. 1 of the Netherlands Territorial Sea Limit Act (Stb. 1985 No. 129) this baseline is the low water mark along the coast. This coincides in this case with the inner boundary of the ‘sea area’, which is how the ‘Zeegat van Goeree’ is designated in the Sea Area and Coastal Waters Designation Decree of 1970, see supra n. 141, p. 551. For the Decree and the Act of 1977 see also 9 NYIL (1978) pp. 385–386, and for the Act of 1985 see 17 NYIL (1986) pp. 244–245.
144. Stb. 1963 No. 312. Art. 1(4) reads: ‘For the purposes of this Act […] (b) “sea fishing” means fishing at sea, including fishing in territorial waters and in adjacent areas designated as sea area by Order in Council; (c) “coastal fishing” means fishing in the waters designated as coastal waters by Order in Council; (d) “inland fishing” means fishing in the other waters of the Netherlands.’
145. A new Sea Area and Coastal Waters Designation Decree was promulgated on 22 December 1993 (Stb. 1994 No. 42) in which the Zeegat van Goeree was designated as ‘coastal water’. Molenaar notes that the inner boundary of the fishery zone as indicated in the Notice to Seafarers (see supra n. 141) was taken as the outer boundary of the coastal water. According to him, this has resolved the problem of the overlap between ‘fishery zone’ and ‘sea waters’ but not the overlap between ‘fishery zone’ and ‘coastal water’. See supra n. 141, p. 552. See also the map on p. 319.
146. The defendant was also awarded compensation of DFL 20,493.85 by the Court of Appeal of The Hague in its judgment of 12 March 1997 for the costs of legal assistance.
147. Note by E.H.P. Brans.
148. The interim judgment in the case instituted by the environmental organisations is reproduced in 23 NYIL (1992) p. 513. This case was settled in the course of 1992. Prior to this the master was prosecuted under the criminal law and was sentenced in absentia by the District Court of Rotterdam to a term of imprisonment of three months by judgment of 26 March 1990 (see 22 NYIL (1991) p. 451).
149. For the notification given by the pilot, see the interim judgment referred to in n. 148 under the facts of the above.
150. The State appealed against this judgment to the Court of Appeal of The Hague. However, the case was later settled between the parties.
151. Discussed in ‘Un extraordinaire cas pathologique’ on p. 511, which was accompanied by a report entitled ‘The abduction of an arbitrator – A disturbing account of a State's attempt to derail an international arbitration’, see pp. 512–519.
152. Discussed by F. de Ly.
153. Trb. 1999 No. 68.
154. Art. 16 reads: ‘1. Unless the parties have agreed upon the place where the arbitration is to be held, such place shall be determined by the arbitral tribunal, having regard to the circumstances of the arbitration. 2. The arbitral tribunal may determine the locale of the arbitration within the country agreed upon by the parties. It may hear witnesses and hold meetings for consultation among its members at any place it deems appropriate, having regard to the circumstances of the arbitration. […].’
155. 14 Mealey's International Arbitration Report (1999) Issue 12, pp. A–1 and B–1Google Scholar; 25 Yearbook Commercial Arbitration (2000) p. 13.Google Scholar
156. For a description of the events prior to, during and after the end of these interim injunction proceedings (and in particular the sudden departure of the Indonesian arbitrator from The Hague) see also 14 Mealey's International Arbitration Report (1999) Issue 2, pp. 3–6Google Scholar. Cf., also Nariman, F.S. in 25 yearbook Commercial Arbitration (2000) pp. xxiii–xxiv.Google Scholar
157. The Final Awards were given in Jakarta on 16 October 1999, see 15 Mealey's International Arbitration Report (1999) Issue 12, pp. A–1 and B–1Google Scholar; 25 Yearbook Commercial Arbitration (2000) p. 186Google Scholar, after two Interim Awards had been made in Jakarta too on 26 September, 25 Yearbook Commercial Arbitration (2000) p. 109Google Scholar. It is evident from both the Interim Awards and the Final Awards that it was no longer possible for the Indonesian arbitrator to take any further part in the arbitration after his departure from The Hague. His signature is therefore missing from the Awards. It is stated in the Bulletin ASA that ‘the Government of the Netherlands [has] protested through diplomatic channels against the act of the Indonesian officials’, see Bulletin ASA (1999) p. 518, n. 4.Google Scholar