DE ENGELEN STER BY IRIS DE VRIES
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:
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
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 Yugos1avia 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 a1so 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 wil1 be executed for high treason, after 12 years of detention [in The Netherlands].
Defendant has strong1y 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 1egality 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 on1y 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 expel1ed. 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
– 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.
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)
SLOBODAN MITRIC, Residing in The Hague
Attorney: Mr. J . Groen
Counsel: Mr.. C.P. Korvinus
THE DUTCH CROWN (Department of Justice), Seated in The Hague
Appellant: Attorney: Mr. J.L. de Wijkerslooth
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 Slobodan Mitric, from now on to be called Mitric, to the Socialist Federative Republic of Yugoslavia.
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.
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.
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, 1973 in Amsterdam was an attempt on his life on December 24, 1973.
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 in Amsterdam remitted the case to the examining magistrate in a second instance, the role played by the National Security Service was mentioned in response to a request by the defence. Also, by investigations carried out by commissions in Sweden and Brussels it was ascertained that Mitric had indeed been a member of the Yugoslav Secret Service and that there had been a previous attempt [on his life] plus the fact that Mitric had met Dapcevic. Because of its dubious nature, the declaration of Van den Ende was put aside by the Court in Amsterdam, as can be seen from the conclusions of the Court in her decree.
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 in Amsterdam (page 12) the President of the Criminal Court spoke the following words at the opening of Mitric’ case (Public Prosecutions, 01.06.1976):
“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.
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.
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) .
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.
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 1986 in her decision. The sentence of the State Counci1 in no way means an assessment of the expulsion, but it is merely a weighing of interests in the sphere of ·the aliens act for declaring him undesirable.
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 permanently get rid of him. 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.