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Translation into English of BC7418 and BC7421.
On 8 July 2008 the Supreme Court of the Netherlands has rejected two appeals against convictions for torture and violations of the laws and customs of war (war crimes) committed during the civil war in Afghanistan.
Article 8 of the Wet Oorlogsstrafrecht (Wartime Offences Act) – as applicable at the time of the offences for which the applicants have been convicted – proscribes violations of the laws and customs of war. These include violations of article 3 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949. Article 3 of the Wartime Offences Act confers jurisdiction on Dutch Courts to try violations of the laws and customs of war wherever and by whoever committed (so-called universal jurisdiction).
The rulings have been published in Dutch on www.rechtspraak.nl and can be retrieved via the numbers BC7418 and BC7421.
The decisions from The Hague Court of Appeal can be retrieved on www.rechtspraak.nl via the numbers AZ7143 (in Dutch) and AZ9365 (in English) and AZ 7147 (in Dutch) and AZ9366(in English) respectively.
- Verrijkte uitspraak
8 July 2008
Supreme Court of the Netherlands
on the appeal in cassation against a judgment of The Hague Court of Appeal of 29 January 2007, number 22/006132-05, in the criminal proceedings against:
[defendant 2], born in [place of birth] on [date of birth] 1946, detained at the time of service of the notice in the Utrecht Custodial Institution, 'Wolvenplein' Remand Prison.
1. The contested judgment
On appeal the Court of Appeal quashed a judgment of The Hague District Court of 14 October 2005 (in so far as subjected to the decision of the Court of Appeal) and sentenced the defendant to nine years' imprisonment for 'joint perpetration of violations of the laws and customs of war where the offence involves the joint commission of acts of violence against a person on more than one occasion' and 'joint commission of violations of the laws and customs of war where the offence involves the joint commission of acts of violence and causes serious bodily injury to another person'.
2. Proceedings in cassation
2.1. The appeal was lodged by the defendant. On his behalf G.G.J. Knoops, attorney-at-law in Amsterdam, submitted written grounds for cassation. This document is attached to this judgment and forms part of it.
Acting Advocate General Bleichrodt submitted an opinion that the appeal should be dismissed.
2.2. The Supreme Court has taken note of the written comments of counsel on the opinion of the acting Advocate General.
3. Assessment of the seventh ground of appeal
3.1. The ground of appeal is directed against the rejection by the Court of Appeal of the defence that the Public Prosecution Service acted in breach of the privilege against self-incrimination (nemo tenetur) enshrined in article 6 ECHR and of the right to respect for private life enshrined in article 8 ECHR by making use in the present case of the statements made by the defendant to the Immigration and Naturalisation Service.
3.2. The ground of appeal cannot result in cassation for the reasons given at point 14 of the opinion of the acting Advocate General attached to this judgment.
4. Assessment of the other grounds of appeal
The grounds of appeal cannot result in cassation. Pursuant to section 81 of the Judiciary (Organisation) Act, no further reasons need be given for this judgment since the grounds of appeal do not raise questions of law that need to be answered in the interests of the uniform application or development of the law.
As none of the grounds of appeal can result in cassation and the Supreme Court also sees no grounds on which it could set aside the disputed judgment ex proprio motu, the appeal must be dismissed.
The Supreme Court dismisses the appeal.
This judgment was given by vice-president F.H. Koster as presiding judge and by justices A.J.A. van Dorst, W.A.M. van Schendel, W.M.E. Thomassen and H.A.G. Splinter-van Kan, in the presence of S.P. Bakker, clerk of the court, and pronounced on 8 July 2008.