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:

 

Slobodan Mitric,

Resident of Amsterdam, at present detained in the House of Detention

“’t Veer" in Amsterdam,

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, 1948 in Yugoslavia and has the Yugoslav nationality;

-  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 in Amsterdam of December 10, 1976 in which plaintiff was sentenced to 13 years in prison for homicide, attempted homicide, mu1tiple homicide, and threatening with homicide, these authorities stated by telex on April 29, 1986 that at present, in Yugoslavia, there are no grounds for prosecution of plaintiff that would result in the death penalty. Defendant has therefore concluded that there is no reason to presume that plaintiff wil1 be prosecuted for an offence as stated in article 3 of the treaty.

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 in Amsterdam, according to purporting considerations mentioned in the verdict of December 10, 1986, is of the opinion that first of all it is plausible that plaintiff was indeed assigned to kill the above-mentioned Dapcevic, but that contrary to his assignment he had not completed this mission by December 1983 and that he even warned Dapcevic about the danger he was facing from the Yugoslavian Secret Police and that furthermore plaintiff, after having had a machinegun fired at him on December 24, 1973 by fellow countrymen who had recently arrived in The Netherlands from Belgium, justifiably and reasonably saw this as an attempt on his life.

 

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.