© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
had already issued an Advisory Opinion under Article 44 CCPr, prior to the granting of leaveto proceed in default of appearance. It is, however, certainly important that the PublicProsecutor’s Department did issue an Advisory Opinion under Article 44 CCPr. The issue ofthe immunity was brought to the attention of the District Court by the Advisory Opinion.There is no right or interest in bringing the same issue for a second time to the attention ofthe District Court.48. Furthermore, the District Court held that the Public Prosecutor’s Department was not to beidentified with the State of the Netherlands. That is in the first place factually erroneous.The position of the Public Prosecutor’s Department was literally identical with the positionof the State of the Netherlands. Where normally the Public Prosecutor’s Department aims toissue an impartial, independent legal advisory opinion in judical proceedings, the AdvisoryOpinion in the present case merely reproduced the position of the State of the Netherlands.The Public Prosecutor’s Department totally ignored all the arguments advanced against theposition of the State of the Netherlands, arguments extensively advanced by the Associationet al. Secondly, the Public Prosecutor’s Department is both legally and actually to beidentified with the State of the Netherlands. A State always has to be represented. If thereasoning of the District Court were to be followed, the State of the Netherlands wouldnever be able to adopt a position or be able to perform a legal act or institute any legalproceedings; the State after all always has to be represented and thus there is always aquestion of attribution to the State of such acts by the representative. That must apply herealso.At the very least, given the very great correspondence between the positions adopted in theAdvisory Opinion of the Public Prosecutor’s Department, on the one hand, and the motion ofthe State of the Netherlands, on the other, there is the appearance of the exercise of thepowers within the meaning of Article 127 of the Judiciary (Organization) Act. That Articlelays down that the Minister of Justice is empowered to issue general and special directionsas to the exercise of the duties and powers of the Public Prosecutor’s Department. It isentirely implausible that the Public Prosecutor’s Department here acted independently,without instruction by the State of the Netherlands. Moreover, it emerged at the hearing of18 June 2008 that the Public Prosecutor’s Department had consulted with the StateAdvocate prior to the hearing. The Association et al. was not informed of the fact that thePublic Prosecutor’s Department would appear at the hearing. The Association et al. offers tosupply the proof of its assertions through a hearing of the Public Prosecutors involved at the© Van Diepen Van der Kroef Advocaten page 20 of 99
The Hague District Public Prosecutor’s Department’s Office, Mrs E.I. Schuier and Mr. M.R.B.Mos, as well as the hearing of the Minister of Justice, Mr. E.M.H. Hirsch Ballin.49. Furthermore, State organs are always identified with the State. The Public Prosecutor’sDepartment is the State of the Netherlands when it involves the upholding of the criminallegal system and the other duties imposed by statute (see Article 124 Judiciary(Organization) Act), by which is also to be understood the duty to issue an advisory opinionunder Article 44 CCPr. Contrary to what the Association et al. would deem appropriate, theState of the Netherlands in the person of the Public Prosecutor’s Department has not takenan independent position, an independent position that in the view of the Association et al.for that matter could have been expected also from the State of the Netherlands as a partyto the proceedings. That is incidentally also again raised by the Association et al. inrejoinder. Both the Public Prosecutor’s Department and the State of the Netherlands havestrongly and partially allowed themselves to be influenced by their evident desire to keepthe UN out of the proceedings at all cost, in order to be able to confine the resonsibility forthe drama of Srebrenica to the UN.50. Where the District Court considers that the Public Prosecutor’s Department has anindividual, narrowly circumscribed degree of autonomy in relation to the Minister of Justice,that is true in itself. What is material in this case is that there is no question of autonomy.To put it yet more strongly, it is extremely likely that the power to issue directions wasexercised. The extremely partial Advisory Opinion of the Public Prosecutor’s Department isnot otherwise open to interpretation. Moreover, it is precisely in the Judiciary(Organization) Act and in particular in Article 124 Judiciary (Organization) Act, that thePublic Prosecutor’s Department is charged with carrying out the duty of the State of theNetherlands in this legal area. That Article makes clear the supervisory role of the State ofthe Netherlands over the administration of justice, which role is assigned to the PublicProsecutor’s Department.That supervisory role for the State of the Netherlands in the office of the PublicProsecutor’s Department derives also from Articles 42 through 44 CCPr.51. The judgment of the District Court that an organ of the State must not be identified withthe State would for that matter also mean that organs of the UN – such as Dutchbat – oughtnot to be identified with the UN. That can obviously not be correct. The Association et al.© Van Diepen Van der Kroef Advocaten page 21 of 99
- Page 2: Against:1. The State of the Netherl
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The Hague District Public Prosecutor’s Department’s Office, Mrs E.I. Schuier and Mr. M.R.B.Mos, as well as the hearing of the Minister of Justice, Mr. E.M.H. Hirsch Ballin.49. Furthermore, State organs are always identified with the State. The Public Prosecutor’sDepartment is the State of the Netherlands when it involves the upholding of the criminallegal system and the other duties imposed by statute (see Article 124 Judiciary(Organization) Act), by which is also to be un<strong>der</strong>stood the duty to issue an advisory opinionun<strong>der</strong> Article 44 CCPr. Contrary to what the Association et al. would deem appropriate, theState of the Netherlands in the person of the Public Prosecutor’s Department has not takenan independent position, an independent position that in the view of the Association et al.for that matter could have been expected also from the State of the Netherlands as a partyto the proceedings. That is incidentally also again raised by the Association et al. inrejoin<strong>der</strong>. Both the Public Prosecutor’s Department and the State of the Netherlands havestrongly and partially allowed themselves to be influenced by their evident desire to keepthe UN out of the proceedings at all cost, in or<strong>der</strong> to be able to confine the resonsibility forthe drama of Srebrenica to the UN.50. Where the District Court consi<strong>der</strong>s that the Public Prosecutor’s Department has anindividual, narrowly circumscribed degree of autonomy in relation to the Minister of Justice,that is true in itself. What is material in this case is that there is no question of autonomy.To put it yet more strongly, it is extremely likely that the power to issue directions wasexercised. The extremely partial Advisory Opinion of the Public Prosecutor’s Department isnot otherwise open to interpretation. Moreover, it is precisely in the Judiciary(Organization) Act and in particular in Article 124 Judiciary (Organization) Act, that thePublic Prosecutor’s Department is charged with carrying out the duty of the State of theNetherlands in this legal area. That Article makes clear the supervisory role of the State ofthe Netherlands over the administration of justice, which role is assigned to the PublicProsecutor’s Department.That supervisory role for the State of the Netherlands in the office of the PublicProsecutor’s Department <strong>der</strong>ives also from Articles 42 through 44 CCPr.51. The judgment of the District Court that an organ of the State must not be identified withthe State would for that matter also mean that organs of the UN – such as Dutchbat – oughtnot to be identified with the UN. That can obviously not be correct. The Association et al.<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 21 of 99
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