© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
have any consequences for the validity of the writ of summons. After all, the process serverwho served the writ of summons on the UN saw no (possible) conflict with the internationalobligations of the State of the Netherlands, any more than the Minister issued anydeclaration to the process server. As follows also from the Memorandum of Explanation toArticle 3a (TK vergaderjaar 1992-1993, 23 081, number 3, page 4) cited by the State of theNetherlands, the writ of summons was validly served and it thus remains so.31. Article 3a Bailiffs Act deals besides in particular with international obligations that relate (incontrast to the present proceedings) to the immunity of foreign states (see Memorandum ofExplanation to Article 3a, TK (Second Chamber) Assembly Year 1992-1993, 23 081, number3, page 1):‘For several years there has been renewed interest in the question how to preventembarrassment to the State of the Netherlands by civil proceedings being brought in theNetherlands against another state or attachment being levied on its property in a situationwhere such would be in breach of the international obligation of the State.’(…)‘In discussing this problematic there is a case to be made for the drawing of a distinctionbetween, on the one hand, the question whether, and, if yes, to what extent immunityfrom jurisdiction in the Netherlands attaches to the foreign power, and, on the other, thequestion whether, and, if yes, to what extent such an immunity also attaches in the area ofthe enforcement of judgments.’32. The process server correctly judged that no situation arose covered by Article 3a of theBailiffs Act. Consequently, it is for the Court to consider whether it has jurisdiction. Thelegal interest raised by the viewpoint of the State of the Netherlands has already beensufficiently addressed by the Public Prosecutor’s Department under Article 44 CCPr, prior tothe grant of leave to proceed in default of appearance.33. The State of the Netherlands has stated that it has sufficient interest in the motions. Tothat end the State of the Netherlands referred to the Bailiffs Act. The Association et al. hasdemonstrated the incorrectness of the arguments of the State of the Netherlands and has© Van Diepen Van der Kroef Advocaten page 14 of 99
eferred to the fact that the process server also saw no possible conflict with theinternational obligations of the State of the Netherlands. All in all, no autonomous(procedural) interest in these proceedings can therefore be derived from the Bailiffs Act.34. The District Court came to an erroneous judgment in legal consideration 5.3. The DistrictCourt failed to dismiss the assertion of the State of the Netherlands that in the presentproceedings it has sufficient interest in the motions on the ground of the Bailiffs Act. TheDistrict Court reviewed merely a very limited part of the defence of the Association et al.and concluded that the inapplicability of Article 3a Bailiffs Act was without consequence forthe decision of the Court on the issue of its jurisdiction. The District Court should – asalready said – have held that Article 3a Bailiffs Act in the present proceedings established nointerest of the State of the Netherlands in respect of the motions.Ground of appeal 535. The District Court incorrectly considered under legal consideration 5.5 that:‘It should be noted that the defences put forward by the Association et al., summarized in3.4 under (1) and (2) of this judgment, are not in point. The State has a judicially relevantinterest of its own in its motion that the Court has no jurisdiction in the case against its codefendant.This is without prejudice to the fact that the Public Prosecutions Department already drewthe Court’s attention to this matter of jurisdiction in its advisory opinion of 7 November2007. Although the Public Prosecutions Department is an organ of the State it is not to beidentified with the State. In the execution of its duties, the Public ProsecutionsDepartment in this field too has a certain degree of independence vis-à-vis the Minister ofJustice, laid down in detail in the Judiciary (Organization) Act, as well as a responsibilityof its own laid down in other statutes. Apart from that, the State, as a party to theproceedings, has a right of its own with further statutory powers attached to make use ofprocedural possibilities. The Public Prosecutions Department does not have the possibilityto appeal if in a civil action it has given an advisory opinion by virtue of Article 44 of theCode of Civil Procedure. In law, its opinion is just an advice of an authority that is not aparty to the proceedings. To a party to the proceedings on the other hand, such as theState in this case, the remedy of appeal is usually available if an action instituted by it (inthis case: the State) is dismissed.’© Van Diepen Van der Kroef Advocaten page 15 of 99
- Page 2: Against:1. The State of the Netherl
- Page 6 and 7: - the motion by the State of the Ne
- Page 8: options exist side by side and do n
- Page 11 and 12: 22. The Public Prosecutions Departm
- Page 13: Explanation of ground of appeal 427
- Page 17 and 18: No legal relevant interest of the S
- Page 19 and 20: The Article envisages a situation i
- Page 21 and 22: The Hague District Public Prosecuto
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- Page 26 and 27: functional necessity. In that conte
- Page 28 and 29: only in Germany. It was not dispute
- Page 30 and 31: immunity of the UN has no absolute
- Page 32 and 33: ‘Darüber hinaus kann gefragt wer
- Page 34 and 35: the purpose would become subservien
- Page 36 and 37: exercise of their functions in conn
- Page 38 and 39: ) leads to a result which is manife
- Page 40 and 41: 90. The ICJ gave an Advisory Opinio
- Page 42 and 43: of functional necessity for immunit
- Page 44 and 45: 100. Even where the District Court
- Page 46 and 47: 105. The District Court referred un
- Page 48 and 49: necessary that change is there effe
- Page 50 and 51: 115. It is also incomprehensible th
- Page 52 and 53: consideration 3.3.6). Under legal c
- Page 54 and 55: desirable that national courts do n
- Page 56 and 57: evidence of the necessity of conduc
- Page 58 and 59: The whole point of the Genocide Con
- Page 60 and 61: prevent the genocide. Worse still,
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eferred to the fact that the process server also saw no possible conflict with theinternational obligations of the State of the Netherlands. All in all, no autonomous(procedural) interest in these proceedings can therefore be <strong>der</strong>ived from the Bailiffs Act.34. The District Court came to an erroneous judgment in legal consi<strong>der</strong>ation 5.3. The DistrictCourt failed to dismiss the assertion of the State of the Netherlands that in the presentproceedings it has sufficient interest in the motions on the ground of the Bailiffs Act. TheDistrict Court reviewed merely a very limited part of the defence of the Association et al.and concluded that the inapplicability of Article 3a Bailiffs Act was without consequence forthe decision of the Court on the issue of its jurisdiction. The District Court should – asalready said – have held that Article 3a Bailiffs Act in the present proceedings established nointerest of the State of the Netherlands in respect of the motions.Ground of appeal 535. The District Court incorrectly consi<strong>der</strong>ed un<strong>der</strong> legal consi<strong>der</strong>ation 5.5 that:‘It should be noted that the defences put forward by the Association et al., summarized in3.4 un<strong>der</strong> (1) and (2) of this judgment, are not in point. The State has a judicially relevantinterest of its own in its motion that the Court has no jurisdiction in the case against its codefendant.This is without prejudice to the fact that the Public Prosecutions Department already drewthe Court’s attention to this matter of jurisdiction in its advisory opinion of 7 November2007. Although the Public Prosecutions Department is an organ of the State it is not to beidentified with the State. In the execution of its duties, the Public ProsecutionsDepartment in this field too has a certain degree of independence vis-à-vis the Minister ofJustice, laid down in detail in the Judiciary (Organization) Act, as well as a responsibilityof its own laid down in other statutes. Apart from that, the State, as a party to theproceedings, has a right of its own with further statutory powers attached to make use ofprocedural possibilities. The Public Prosecutions Department does not have the possibilityto appeal if in a civil action it has given an advisory opinion by virtue of Article 44 of theCode of Civil Procedure. In law, its opinion is just an advice of an authority that is not aparty to the proceedings. To a party to the proceedings on the other hand, such as theState in this case, the remedy of appeal is usually available if an action instituted by it (inthis case: the State) is dismissed.’<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 15 of 99
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