Appendix 8
Verdict
of the District Court in The Hague, dated May 22, 1986
Forbidding the Dutch Government to Expel Mitric to
Yugoslavia.
(Existing
English translation corrected on grammar and style without access to the
original)
PRESIDENT
OF THE DISTRICT COURT IN THE HAGUE.
Verdict,
May 22, 1986 pronounced in Court Case nr. 86/429:
Resident
of Amsterdam, at present detained in the House of Detention
“’t
Veer"
Plaintiff:
Attorney, Mr. J. Groen,
Counsel:
Mr. C.F. Korvinus of Amsterdam
versus
The Crown
of The Netherlands (Ministery of Justice),
Located in The Hague,
Defendant:
Attorney, Mr. J.L. de Wijkerslooth.
1. The Facts
In this
Court case the following facts can be presumed to be true:
- Plaintiff was born on March 1,
- Plaintiff has been declared an undesirable alien
by the highest official authorities;
- As of
May 16, 1986 plaintiff has been released on probation after having served two
long prison sentences in the Netherlands;
- As of
the date of his release, plaintiff has been taken into custody according to the
Aliens Act;
- On May
14, 1986 the defendant announced his intention to expel plaintiff to
Yugoslavia;
- On May 15, 1986 plaintiff requested for the
second time admittance as a refugee as well a residence permit on the grounds
of seeking asylum.
Both requests
were refused on the same day and furthermore a decision was taken that in the
event of a request for revision of the verdict, suspension would be withheld.
2. The Demands, the Grounds therefore and the Defence.
Plaintiff
demands that defendant pass judgement on his request for probation release
before May 19, 1986. Plaintiff demands furthermore that defendant pass
judgement on his request to be supplied with a travel document permitting him
to gain entrance to the country of his choice and that defendant render him the
necessary assistance to accomplish this. Finally, plaintiff demands, that
defendant be forbidden to expel plaintiff from The
Netherlands either directly or indirectly to Yugoslavia, during or at the end
of his detention, or to do so within a period of six months.
Plaintiff
states that defendant, in spite of promises to keep him informed of decisions
concerning probation release and expulsion from The Netherlands, had not done
so within 14 days of the expiring of the probation release term, which is in
contravention with the legal procedures and [thus] unlawful.
Plaintiff
states furthermore that the defendant is in contravention with the general
principles of just government, such as the principle of legal security, by
leaving him in uncertainty about his detention and by not giving him the
opportunity to gain admittance to another country by supplying him with a
travel document.
Finally
plaintiff states that the defendant is also in contravention with the
Constitution and the Treaty of Rome; defendant’s actions are also to be
considered inhumane and illegal, if indeed his intention to send plaintiff back
to Yugoslavia where he will be executed for high treason, after 12 years of
detention [in The Netherlands].
Defendant
has strongly denied these claims.
3.
Assessment of the Issue
In the
mean time, defendant has released plaintiff on probation and has notified him
of this. Therefore, plaintiff has no further interest in maintaining his first
demand which, accordingly, shall be rejected.
As
stated under the facts, the plaintiff has been declared an undesirable alien by
the highest government authorities. In accordance with article 21, paragraph 4
of the Aliens Act, articles 8, 9 and 10 of this act are not applicable to
aliens that have been declared undesirable. A consequence of article 22,
paragraph of said act is that undesirable aliens can indeed be expelled. This
fact is not altered by the submission of a renewed request by the alien for
admittance, so that all further requests made by plaintiff, as long as he
remains undesirable, cannot be of influence on the eventual legality of his
expulsion from The Netherlands. The alien shall be granted a reasonable period
of time to leave for a location outside The Netherlands where his admittance
can be guaranteed, unless said admittance is in contradiction to the public
interest and order and to national security. This has been laid down in article
24 of the Act. In the case in question, it would seem that granting the
plaintiff a reasonable period of time is opposed to the public interest as
plaintiff has been known to be capable of homicide and as during his detention
he has on several occasions caused serious and threatening situations, which
have necessitated taking specific measures.
There
can therefore be no doubt that defendant is justified in presupposing that the
Dutch public interest would profit from the intended expulsion of plaintiff.
From the
above can be concluded that the Aliens Act is not in direct opposition to the
expulsion of plaintiff, so that it would not be unlawful if defendant were to
decide to expulse the plaintiff. The question whether defendant is justified in
expelling plaintiff to Yugoslavia will be dealt with later on.
Furthermore,
the matter of expulsion of plaintiff being in contravention with the
Constitution and the Treaty of Rome must be dealt with. As plaintiff has not
expanded further on the implied potential controversy, it is at present not
clear how far this statement is justified. Consequently, this statement will
not be dealt with.
Plaintiff's
appeal on the treaty of Rome can only concern article 3 of this treaty.
Consequently, defendant has interpreted the appeal in said manner.
In
article 3 is laid down that no person shall be submitted to torture or other
inhumane or humiliating treatment or punishment. This not only refers to such
treatment or punishment in the country where the person in question resides,
but also to such treatment or punishment in the country to where the person in
question is to be expelled. If it seems plausible that the person in question
will be submitted to such treatment or punishment in another country, then
expulsion to that country must be renounced. In this matter it is of no concern
if the other country is a party to said treaty. It is sufficient that the
country from where the person in question is to be expelled is a party to the
treaty. Defendant is therefore committed to prevent expulsion of plaintiff to a
country where such treatment can be expected to take place.
In the
beginning of the year defendant started an investigation of the Yugoslav
judicial authorities to find out whether plaintiff is indeed in danger of being
prosecuted in Yugoslavia. Thereupon these authorities asked to be informed of
the offences for which plaintiff was convicted in The Netherlands and after
having received a copy of the verdict of the Court of Justice
Consequently,
defendant has not further dealt with plaintiff's statement that he is afraid of
being killed, for example in ‘an accident'. By using this example, plaintiff
refers to statements made during his interrogation by the Advisory Committee
for Alien Affairs by Prof. C.F. Rüter lawyer and professor in criminal law at
the Seminar for Criminal Law and Judicature at the University of Amsterdam, and
by Dr. W.J. Broekmeijer, associated with the Institute for Eastern European
Studies at the University of Amsterdam, as well as referring to the point of
view taken by the representative for the High Commissioner for Refugees in The
Netherlands in such matters.
During
the above mentioned interrogation Prof. Rüter, according to the report, drew
attention to the exceptionally good connections plaintiff has had with the
Yugoslav Secret Service. Furthermore, Prof. Rüter drew attention to the
'accident' that befell Mr. Barovic, an attorney who was known to have aided
several political prisoners with their legal matters.
Prof.
Rüter has said to be convinced that plaintiff, in the event of a possible
return to Yugoslavia, would be confronted with extremely difficult situations.
Dr.
Broekmeijer described the accidents before the Advisory Committee that befell a
certain Mr. Dapcevic –
the man that plaintiff was supposed to have killed in Belgium
– as well as Dapcevic’s attorney Mr.
Barovic. According to Dr. Broekmeijer plaintiff, in the event of his return to
his native country, wi11 face a very difficult situation. The representative
for the High Commissioner has said to have reached the conclusion that plaintiff
cannot be recognized as a refugee in the sense implied by the treaty as well as
by protocol, but that plaintiff's expulsion to his native country should be
avoided out of humanitarian considerations. According to the report, the
representative came to this conclusion after having heard the statements made
by Prof. Rüter and Dr. Broekmeijer and after having consulted the UNHCR head
office in Geneva. Finally, it is important to note that the Court of Justice
One
thing and another has led to the tentative conclusion that the possibility that
specific measures, which fall under article 3 of the treaty, would be taken in
plaintiff's native country, should seriously be considered. The exceptionally
difficult situations that both Prof. Rüter and Dr. Broekmeijer spoke of must,
considering the context in which they were made as well as the manner in which
the case presents itself at the present time, be taken to be understood as
meaning that plaintiff, in the case of expulsion to his native country could
indeed be in danger of that which he dreads.
This
statement is supported by the fact that an attempt was made on plaintiff's life
shortly after he had been to see the aforementioned Mr. Dapcevic and by the
fact that the representative of the High Commissioner, after deliberation, came
to the conclusion stated above. This infers that expelling plaintiff to
Yugoslavia is not acceptable considering the present state of affairs and that
plaintiff's demand that expulsion be prevented, should be accepted.
With
respect to this last argument, defendant has also put forward that the danger
for defendant is as great in The Netherlands as it is in Yugoslavia.
Even
if this were the case, plaintiff cannot be expel1ed to a country where the
danger can be considered to be greater. However, with this statement defendant
does not imply that plaintiff should be protected against these dangers in The
Netherlands. The issue at hand is that the Dutch legal order does not permit
expulsion of a person from Dutch territory to places where he will be subjected
to actions as implied in article 3 of aforementioned treaty. One cannot compare
the the case in question with the lawsuit, in which the European Committee
decreed that expu1sion of a Po1ish refugee from Denmark to Poland was not in
contravention with article 3 of the said treaty, because the deed for which the
refugee would have been prosecuted in Poland, would a1so have been punishable
in most member-states of the European Council.
The
verdict of the Committee does not demonstrate that the person in question had
advanced and adduced arguments on the same ground as in the Court case
presently at hand.
The
second demand is of no further interest to plaintiff. Defendant wi11, in any
case, have to fulfil this demand as soon as a country has been found which is
prepared to admit plaintiff.
If
plaintiff's demand that defendant render the assistance necessary in finding a
country prepared to admit him entails the demand that he be released from
(alien) custody, it must be understood that this demand cannot be fulfil1ed, as
from the above follows that plaintiff’s custody is indeed justified.
Defendant,
having been proved wrong for the greater part, shall be condemned to pay the
costs of the Court case.
4. The
verdict
The
President:
- forbids defendant to expel plaintiff to the
Socialist Federal Repub1ic of Yugoslavia;
- declares this verdict to be immediately in force;
- rejects all further or different demands.