Appendix 9
Memorandum
In Reply by the Court of Justice in The Hague
dated
June 26, 1986 Upholding the Verdict of May 22, 1986
(Existing
English translation corrected on grammar and style without access to the
original)
Defendant
Attorney: Mr. J . Groen
Counsel: Mr.. C.P. Korvinus
versus
THE DUTCH CROWN (Department of Justice), Seated in The
Hague
Appellant: Attorney: Mr. J.L. de Wijkerslooth
Your Honour,
By sentence
of May 22n, 1986 the ruling President of the District Court in The Hague has
forbidden the Crown to remove directly of indirectly or to expel
Mitric
has taken note of the appeal summons and the Grievance Memorandum of the Crown.
The Crown brought forward one grieve against which Mitric will defend himself
in the following.
Mitric
will submit the complete file and upholds what he has brought forward in the
first instance, which has to be considered repeated and inserted here.
Concerning
Grievance I
Rightly
the President has forbidden the expu1sion of Mitric, because attention has to
be paid to the fact that in Yugoslavia actions will be taken against him, which
would not be covered by what is defined in article 3 of the European Amendment
on Human Rights.
Clarification
In fact,
the Crown states that:
1. Mitric
has not been a member of the Yugos1av Secret Service; this has never in any way
been proved according to the [Dutch]
National Security Service.
2. The
President has attached too much value to the declarations made by the experts
Rüter, Broekmeijer and the High Commissioner for Refugees of the United
Nations, and that these declarations are dated.
3. The
telex of Interpol Belgrade would sufficiently guarantee that Mitric would not
be treated as meant in article 3 of the European Amendment on Human Rights.
4. The
European Commission did not honour the appeal of a Pole based on article 3 of
the European Amendment on Human Rights against expulsion from Germany.
5. The
Department of Jurisdiction of the State Counsel in her sentence of May 29, 1980
would have given an opinion on the future legality of expulsion to Yugoslavia.
Concerning
1
At the start
of the Mitric case in 1973, an attempt was already made to depict Mitric as a
criminal and to deny the political backgrounds of the case. Mitric stated from
the beginning that the cause for the fatal shooting on December 25,
This
attempt was made because of his desertion from the Yugoslavian Secret Service
after he had refused to liquidate V. Dapcevic in Brussels and instead had
informed him about this plan by the Yugoslav Secret Service. Later on, this
Dapcevic was taken by force to Yugoslavia where he was sentenced to death. This
was later changed, because of his age (60) to 20 years in prison. No one knows
what happened to him since.
Members
of the [Dutch] National Security Service have questioned Mitric at least five
times in 1973, but reports of these hearings were not added to the files. Only
after the Court
I
will limit myself to referring to the pleas made by Mr. Hamer before the Court,
the report of the Swedish commission and the report of the investigations made
by the Belgium authorities into the disappearance of· Dapcevic (together with
newspaper articles), which I herewith submit to the Court.
In
his plea before the Court
“Two
years ago the background of this case was not clear to the Court (...) After
the first trial, many hearings were held and investigations made. The Court
took note of the minutes and the reports. That is why the Court declares it to
be likely that this case has a politica1 background. The accused, as an agent,
has probably not carried out a specific order. The accused. Was likely to
believe that his life was in danger. This was confirmed by the shooting on
December 24, 1973. According to the Court the political background of this case
does not require any further evidence or explanation. Yet the public prosecutor
and the counsel are of course free to do so.”
It
is clear that the declaration sworn under oath by Van den Ende, a member of the
[Dutch] National Security Service, has been disqualified.
Concerning
2
Herewith
two recent letters from Prof. Mr. C.F. Rüter and Dr. M.J. Broekmeijer are
submitted (both dated June 24, 1986), addressed to Mitric’s counsel, who had
asked them to comment on the statements mentioned in the Grievance Memorandum.
They
both come to the conclusion that it is virtually certain that Mitric was part
of the Yugoslav Secret Service and that the Crown knows this (see the passage
from Rüter on the investigations made by the National Security Services.) Also,
they are both clear about what Mitric is awaiting in Yugoslavia, namely
death. Both of them base this appraisal
on years of experience for Amnesty International in Yugoslavia. Both of them
state that nothing has changed in the present regime in Yugoslavia. The new
president of Yugoslavia is Branko Mikulic. By the population he is called
“Kasapin”, meaning “butcher”, because of the fact that in 1968 he ordered
troops to open fire on a group of students in New Belgrade.
Finally,
it has to be mentioned that on a [Dutch] NOS radio program (on May 27, 1986,
entitled “On the Edge of· Justice”, about the· Mitric case) the East European
correspondent of this National Dutch radio reported that no declaration from
the Yugoslavian authorities was forthcoming that Mitric would not be prosecuted
in Yugoslavia, which in his opinion affirmed that Mitric rightly fears to be
liquidated in Yugoslavia. This correspondent has been working in Eastern Europe
for some ten years.
Neither
should it remain unsaid here· that the High Commissioner for Refugees again
approached the parliamentary Undersecretary for Justice to assure her that the
fate of Mitric upon return in Yugoslavia would be cruel and inhuman (see the recent reports made by Amnesty).
A
similar declaration made by the Dutch Red Cross (May 1986 ) has already been
given to Court.
The
attitude· of the Dutch crown is completely incomprehensible in view of all
these declarations, to which the President has rightly attached decisive value.
Concerning
3
The telex
of Interpol Belgrado has been presented by the Crown as a declaration that is
of more importance than a sealed document exchanged on diplomatic level and
signed by the Yugoslav authorities. It has hardly ever happened that arguments
were exchanged in this way for these purposes. The Crown knows that this telex
is without any value in the Yugoslav situation, given the form and contents of
it. This telex is no guarantee for the fate of Mitric in Yugoslavia (see the
letters by Rüter and Broekmeijer).
Concerning
4
The
President has used the following sentence of the European Commission in his
motivation: “The case in which the European Commission held the view that
expulsion to Poland of a Pole, who was recognised as a refugee earlier in
Denmark, was not in contradiction to the already mentioned article 3, because
of the fact that he would be prosecuted in most countries of the European
Counsel for the actions for which he would be prosecuted in Poland. But that
case differs from the present one. It does not appear from the above sentence
of the Commission that the person in question has brought in acceptable reasons
that can be used here as a starting point.”
This
motivation of the president has not been contested by the Crown. Here it must
be remarked that desertion from the Secret Service is different from desertion
from the army.
Concerning
5
This
argument seems to be a strange one in view of the fact that the Crown during former short cases in which
it was always stated that the President could not take actions as long as the
Crown had not decided to expel to Yugoslavia and that the Crown in that case
had to look at al1 current circumstances. The Crown cannot say very well now
that the Jurisdiction Department in 1980 included the circumstances in
Besides,
in technical literature (see Swart and Hoeksema “Between Fear and Prosecution”)
the decision of the State Council of 1980 is criticized. Judge in other
European countries meanwhile hold another point of view which renders more
justice to the criterion “fear of prosecution”.
For this
Memorandum some fina1 remarks have to be made, which in this controversy can be
important for your Court to know. Obviously, the Crown is prepared to go to any
length in this case. That does not only follow from the unacceptable pressure
that was put on the judicature in the earlier ruling, the special chartered
plane that was ready for take-off on May 22 of this year for Mitric’ expulsion,
the total isolation of Mitric in prison preceding his sentence (guarded by a special group of
armed guards), etc; it also follows from the wil1ingness to falsely inform the
permanent Chamber Commission for Justice in a closed meeting.
The
parliamentary undersecretary at that time stated that the Yugoslav authorities
had guaranteed that Mitric would not be prosecuted. At that time not a single member
of the commission was shown any document. Their opinion was based on the words
of the parliamentary undersecretary and she did not speak the truth.
From
reliable sources, it is known that the Crown has already been aware for a long
time that Mitric is awaiting a terrible fate. Nevertheless, the Crown attempts
to expel Mitric to Yugoslavia, no matter the price. And it is active in giving
extremely negative information about Mitric to countries that show any
willingness to offer him a place to stay.
An
official of the Dutch Embassy in the United Stated has recently contacted
Senator Crane’s wife and advised her to stop all efforts to save Mitric, since
he is a terrorist, a murderer and a rapist. This is in violent contrast to what
the Crown stated during the trial. It appears as though the Crown absolutely
wants to expel Mitric to Yugoslavia and to get rid of him permanently. The
question is whether Mitric, because of his former contacts with the [Dutch]
National Security Service and the C.R.I. [Dutch F.B.I.] knows too much or
whether other interests are involved.
With the
conclusion:
To confirm the verdict of the President of Court in
The Hague dated May 22, 1986.
Amsterdam/The
Hague, June 26, 1986.
* * *