TrustHLT/LaCour huggingface dataset:
GR1 (Government): The determination by the Security Council, acting under Chapter 7 of the UN Charter, constituted a binding determination by the Council of the status of the states concerned.
GR1 (Government): It is fully legitimate for the Netherlands and other states to proceed on that firm basis.
GR1 (Government): Even if the resolution by the Security Council under Chapter 7 of the UN Charter would not be considered determinative in itself, the fact that the Council did not consider the Netherlands an occupying power, as that term is used in international humanitarian law, must be considered very authoritative.
GR1 (Government): As a minimum, very weighty reasons should be adduced to support the assertion that the Netherlands was an occupying power.
GR1 (Government): Such reasons have not been put forward in this case.
GR1 (Government): Indeed, application of the definition in Article 42 of the Hague Regulations of 1907, as developed in case law, leads to the conclusion that the Netherlands was not an occupying power.
GR1 (Government): The limited mandate, the size and the role of the Netherlands forces all support the conclusion that all or part of Iraq was not actually placed under the authority of the Netherlands as a hostile army.
GR1 (Government): I pray and aid here the ICJ's advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory, as well as its judgment in the case of the Democratic Republic of the Congo versus Uganda.
GR1 (Government): In assuming that Dutch troops superseded their mandate, an assumption which obviously is not the government's, this cannot by itself justify the conclusion that the Security Council resolution cannot be the point of reference in determining the status of the Netherlands in Iraq.
GR1 (Government): As for the applicant's comments concerning the investigation, I would like to stress again that the aim of the investigation was not to determine who had shot the fatal bullet.
GR1 (Government): The Dutch authorities only had the competence to look at the use of force of Dutch military personnel.
GR1 (Government): Obviously in the course of the Dutch investigation, facts were discovered on which basis it is logical to assume that also Iraqi forces fired on the car.
GR1 (Government): For example, the size of the bullet holes, i.e. larger than 6 millimeters as a result
GR1 (Government): of ammunition used by the Iraqi AK-47s.
GR1 (Government): Also I would like to stress the fact that the Dutch were not the only authorities to carry out an investigation, as has been alleged by counsels for the applicant.
GR1 (Government): The Iraqi authorities did so as well as the file demonstrates.
GR1 (Government): Then Mr. Sechfeld discussed the concept of putative excessive self-defense.
GR1 (Government): In the framework of the Section 12 proceedings, the Court of Appeal did not use the concept of putative excessive self-defense.
GR1 (Government): Instead the judicial authorities based their positions on the applicable rules on the use of force.
GR1 (Government): One therefore cannot expect the Court of Appeal to order a prosecution for the sake of clarification of a legal notion that the Court does not find applicable.
GR1 (Government): Criminal prosecution of an individual is not suitable for such an academic exercise.
GR1 (Government): I admit that the term was used in the case file originally by the public prosecutor, but ultimately it was not the basis on which the Court of Appeal grounded its decision.
GR1 (Government): Another clarification which is very important here, it is wrong to create the impression that the public prosecutor could by himself and without being subjected to judicial control take the decision not to prosecute.
GR1 (Government): The Court of Appeal in the context of Section 12 proceedings exercises a full review, not a marginal one as has been alleged.
GR1 (Government): I come to the incidents at the hospital.
GR1 (Government): Upon arrival at the hospital, the coroner appeared, as I said before, unimpressed by the authorization from the judge and was not willing to allow the K-Mar investigators to attend the autopsy.
GR1 (Government): Instead he pointed out his responsibilities under Islamic custom and indicated that additionally the approval of the family of the deceased would be required.
GR1 (Government): Since no such approval had been given and Islamic custom did not allow the K-Mar investigators or Iraqi police officials to be present, he would not allow them to witness the autopsy.
GR1 (Government): The coroner did allow the K-Mar investigators, as an exception, to view the body.
GR1 (Government): After that, the K-Mar investigators were ordered to leave and escorted out of the morgue.
GR1 (Government): It should also be noted that by that time a large number of civilians, including family members and friends of the deceased, had gathered outside the square in front of the hospital in reaction to the news of the incident.
GR1 (Government): The general atmosphere towards the Dutch personnel quickly became hostile.
GR1 (Government): The interpreter of the Dutch personnel was informed that they would be taken hostage.
GR1 (Government): Given the fact that the Dutch personnel were severely outnumbered, partly because half of the Dutch personnel had left the hospital to escort the ambulance back to camp, and given the fact that they could not get in touch with headquarters, further attempts to attend the autopsy were considered to be inopportune since they would have met with further hostility.
GR1 (Government): Dutch personnel was hampered when it tried to leave the grounds.
GR1 (Government): Now I come to an important issue which has been brought forward by counsel for the applicant, which in fact has attracted the attention of the press in the Netherlands as well.
GR1 (Government): The interviews with the ICDC, which allegedly were not part of the case file.
GR1 (Government): First the relevant statements by the members of the ICDC were not kept from anyone.
GR1 (Government): They were referred to in the official KMAR report where they were summarily described and this was given to the public prosecutor's office.
GR1 (Government): The underlying interviews did not become part of the public prosecutor's dossier, given the fact that the legal relevance of their statements for the assessment of Lieutenant A's handling of the incident was limited at best.
GR1 (Government): This is in itself not exceptional at all.
GR1 (Government): It is very often the case that investigators take investigative measures which in the end are not elaborately included in the case file in case the results of the investigative measures turn out to be of limited relevance.
GR1 (Government): Second it is not true that applicants' counsel has just found out about the existence of these interviews.
GR1 (Government): Counsel was allowed to examine the case file on the 25th of January 2007 at the office of the public prosecutor.
Dean Spielmann (JudgeP): Mr. Riker, your time has expired.
GR1 (Government): I was afraid this was going to happen.
GR1 (Government): I will...
Dean Spielmann (JudgeP): You might wish to conclude, maybe.
GR1 (Government): I will, I will.
GR1 (Government): I take your message.
GR1 (Government): In any case, it appears from the case file that counsel was aware, perhaps not of the literal text of these interviews, but certainly of their contents.
GR1 (Government): And she in fact acknowledged that much during the oral hearing before the Arnhem Court of Appeal.
GR1 (Government): I, sorry?
GR1 (Government): Okay.
GR1 (Government): Then I just want to conclude by saying that once again, we are convinced that the convention did not apply in the present case.
GR1 (Government): Exeterial jurisdiction is only assumed in extraordinary circumstances.
GR1 (Government): And this was not the case here as I have stated.
GR1 (Government): As to the investigation, we are convinced that the investigation was exemplary.
GR1 (Government): It was in no way different from other similar investigations.
GR1 (Government): Perhaps it was even more thorough than would normally be the case.
Dean Spielmann (JudgeP): Thank you very much, Mr. Böcker, Ms. Zegveld.
AP2 (Applicant): We would like to share our remarks together.
AP2 (Applicant): I will focus on the factual aspects.
AP2 (Applicant): The question of Mr. Casadevall, who was in charge of the checkpoint 13,
AP2 (Applicant): well, the Dutch, of course.
AP2 (Applicant): The ICDC was present, but the ICDC fell under the Dutch, or at least fell under the coalition forces.
AP2 (Applicant): We quoted it over and over again.
AP2 (Applicant): The Security Council, what was it, the Coalition Provisional Authority Order No. 28 that created the ICDC on 3 September 2003.
AP2 (Applicant): This CPE order expressly states that the ICDC was to be distinguished from the Iraqi police, and as such, it was subject to the supervision of the coalition forces.
AP2 (Applicant): So who was present is, in that sense, not too relevant, in the sense that if it were the ICDC, which at certain times was the case, they fell under the overall control of the Dutch in that very province in South Iraq.
AP2 (Applicant): We noted the translation summoned, that the Iraqis, the ICDC, summoned the Dutch to appear.
AP2 (Applicant): I've been wondering whether I should highlight it today.
AP2 (Applicant): I've chosen not to do so, but I think it's a wrong translation of the legal and factual situation on the ground.
AP2 (Applicant): Then the question of Judge Villiger, where were the barrels?
AP2 (Applicant): They were not at the side of the roads, neither were they blocking.
AP2 (Applicant): It is as the government representative says, they were in the middle, allowing traffic to pass.
AP2 (Applicant): There's an annex to our application, which is a part of the report of the KMA, which draws the situation on the ground.
AP2 (Applicant): It's very clear where the barrels is.
AP2 (Applicant): It's very well indicated.
AP2 (Applicant): And generally, I would like to say with regard to the frequent citation of the security situation by Mr. Booker
AP2 (Applicant): as an explanation why the investigation was limited, relatively limited.
AP2 (Applicant): I can't see, and he doesn't explain so either, what investigation, what else would have been done, were the situation safer.
AP2 (Applicant): He doesn't make it clear.
AP2 (Applicant): What we actually see is that all steps have been taken, but halfway aborted.
AP2 (Applicant): So we take the body, we take the corpse, but we then hand it over to the Iraqis.
AP2 (Applicant): We take the car, but we don't investigate the munition that is found on the chair of Ms. Jalut.
AP2 (Applicant): We also examine the car, but we stop halfway and we send the bullet remnants to the Netherlands.
AP2 (Applicant): But nothing is done with it.
AP2 (Applicant): There's still evidence available in the Netherlands, which I've always been wondering about, about why has the prosecution not taken the step to do some additional investigation on Dutch territory, where there are no limitations whatsoever.
AP2 (Applicant): In terms of context awareness, which is invoked by the government, what would have been appropriate is to invoke the context of the vehicle checkpoints and to explain that it was indeed very much an accident of guys who drove into these barrels.
AP2 (Applicant): And it wasn't the only one.
AP2 (Applicant): There were four similar accidents at vehicle checkpoints manned by the Dutch, where cars drove into the barrels because of the poor visibility and the fact that it was not indicated that there was a vehicle checkpoint.
AP2 (Applicant): Then perhaps allow me to say something briefly about the autopsy by the question by Judge Schimelle, though it wasn't directed to us.
AP2 (Applicant): I wasn't sure because your question was whether there was anything recorded in terms of the apparent factual situation that the Dutch were not allowed to be present.
AP2 (Applicant): It wasn't clear to me whether it was a quote that I just heard from Mr. Bucker
AP2 (Applicant): or whether he was reading out his written submissions on earlier occasions.
AP2 (Applicant): It's my impression that it was just merely the written submissions.
AP2 (Applicant): I have always been wondering why the autopsy wasn't carried out on the Dutch base.
AP2 (Applicant): We had 1,300 soldiers in Iraq.
AP2 (Applicant): Certainly we had the ability to do it on the base.
AP2 (Applicant): It was never clear to me why we handed over this corpse to the Iraqis.
AP2 (Applicant): In any case, there was a court permission to carry out the autopsy.
AP2 (Applicant): I mean, there was nothing stated by the government saying that this autopsy is restricted in the sense that there can be no foreigners present.
AP2 (Applicant): And the permission that was quoted by the government of the victims or of the applicants as a necessary requirement in order to allow the Dutch to be there, the applicant was there.
AP2 (Applicant): The family was around.
AP2 (Applicant): I mean, nowhere is it stated that they have been asked to give their permission for the Dutch to be present, let alone that they denied such permission.
AP2 (Applicant): Then very — in a very final remark about the ICDC statements, it was said that they were summarily described in the file.
AP2 (Applicant): But they are — they consist of only five lines each.
AP2 (Applicant): I don't see what you can summarize.
AP2 (Applicant): What is in the file is a statement that they yield no relevant information.
AP2 (Applicant): That's it.
AP2 (Applicant): And that they were not included.
AP2 (Applicant): I've never seen them.
AP2 (Applicant): I think that says it all.
AP2 (Applicant): It's admitted that the documents were indeed not part of the prosecutor's file.
AP2 (Applicant): And I would like to — if you allow us to briefly give the floor to my colleagues.
AP1 (Applicant): Thank you. I have three short comments to make.
AP1 (Applicant): First of all, contrary to the suggestion of the government agent, we have not dismissed the UN Security Council resolution.
AP1 (Applicant): We hold it in high respect, but we have qualified it by indicating that the statement that the differentiation between occupying and non-occupying powers as made in the preamble of that resolution, of course, cannot – it is not so that the statement cannot be superseded by the facts on the ground.
AP1 (Applicant): In other words, the artificial distinction which was made by the Dutch government in order not to have to admit to its own general public that it is engaging, that it was engaging in an occupation, may have worked domestically, politically, but it should not be given any legal effect.
AP1 (Applicant): The second comment I would like to make plays into the question of Judge Motorg, which concerns the argument that a finding that Article 2 applies in this situation would be deterrent to states to supply troops to UN peacekeeping missions.
AP1 (Applicant): This argument has been made before by the Dutch government, most particularly in a case, domestic case, which involved accountability of the Dutch for deaths which occurred during the Srebrenica massacre in Bosnia under the UN mission there.
AP1 (Applicant): The Dutch Supreme Court was not impressed by that argument.
AP1 (Applicant): In fact, the Dutch state was held accountable for those deaths.
AP1 (Applicant): And in fact, it has not prevented the Dutch government from announcing recently its participation in a further UN mission in Mali.
AP1 (Applicant): More importantly, we believe that the apparent desire of a contracting state not to be bound by ECHR obligations when engaging in a UN mission is not an argument we respectfully submit which a human rights court should take into account when deciding on the scope of the protection offered by the Convention.
AP1 (Applicant): My final remark concerns the question whether jurisdiction should be part of the living instrument doctrine.
AP1 (Applicant): Well, first of all, we do not believe that this is necessary to decide in this case simply because, as we've argued, this case falls within the concept of extraterritorial jurisdiction as it has already been applied by the court.
AP1 (Applicant): However, at the same time, we do believe that jurisdiction must be allowed to evolve, as it has, if the rights of the Convention are to be practical and effective.
Dean Spielmann (JudgeP): One question or two questions have been addressed to the third party government, so if Mr. Eadie could briefly reply to that.
TP1 (ThirdParty): Mr. President, Judge Motok asked us two questions.
TP1 (ThirdParty): The first one was, who had jurisdiction?
TP1 (ThirdParty): And our direct answer to that question is, under the convention system, neither the UK nor the Netherlands.
TP1 (ThirdParty): Not the UK, because the death on no view was the result of any action by state agents of the United Kingdom.
TP1 (ThirdParty): And there's no assertion correctly by the Dutch government in this case that the UK should be a proper respondent to this case.
TP1 (ThirdParty): It's on Judge Kalajewa's question.
TP1 (ThirdParty): And not the Netherlands, for all the reasons that I gave in my written submissions.
TP1 (ThirdParty): But I don't want to leave the answer there for obvious reasons.
TP1 (ThirdParty): Because as I understand it, the real sting of this question and the premise on which it sits needs very careful consideration.
TP1 (ThirdParty): The premise, as I understand it, and the sting of the question is that this court should struggle to expand the notion of ECHR jurisdiction to fill what would otherwise be a legal void or human rights deficit in terms of protection.
TP1 (ThirdParty): And my submission is that that is not a sound premise.
TP1 (ThirdParty): It doesn't provide, therefore, any principled pull towards an expanded notion of jurisdiction.
TP1 (ThirdParty): And it's not a sound premise, because there are, at the very least, two other systems of law providing applicable norms in this situation.
TP1 (ThirdParty): The first of them is IHL.
TP1 (ThirdParty): And the second of them are the domestic legal norms, which almost all states' troops are accompanied by in military operations abroad.
TP1 (ThirdParty): That is the position in relation to British troops.
TP1 (ThirdParty): And as I understand it, that is the position in relation to Dutch troops.
TP1 (ThirdParty): So there is no legal vacuum.
TP1 (ThirdParty): And there is no legal vacuum, in principle, any more than there would, for example, be a legal vacuum were non-contracting states to do the work of the United Nations in preserving world peace and security, for example, in Africa.
TP1 (ThirdParty): No one has ever asserted that when they go out on those missions, that because the ECHR doesn't apply, which it plainly doesn't, there is some form of legal vacuum or deficit in human rights protection.
TP1 (ThirdParty): And the reason that there isn't is the one that I give.
TP1 (ThirdParty): So our respectful submission is that the premise does not drive the conclusion that one or other state must have ECHR jurisdiction.
TP1 (ThirdParty): Ultimately, the function of this court is to identify the proper reach of the concept of jurisdiction under the convention intended by the framers.
TP1 (ThirdParty): And for all the reasons I gave in my submissions, that is not, on any view, a doctrine of effects.
TP1 (ThirdParty): It does not, on any view, apply to all military operations.
TP1 (ThirdParty): And the same logic as would underpin the premise of the question you asked me would equally apply there.
TP1 (ThirdParty): But it's entirely clear that jurisdiction is not a concept of that breadth.
TP1 (ThirdParty): So that's my answer to the first question.
TP1 (ThirdParty): The second question you asked was how I would put legally the point I made about the deterrent effect or the possible deterrent effect, both on the effectiveness of UN missions and of states' willingness to participate in them.
TP1 (ThirdParty): And my answer to that question is, as a relevant factor or feature when analyzing the reach and proper scope of the legal concept in question, here, jurisdiction.
TP1 (ThirdParty): It is, I respectfully submit, not in the least unusual for courts to consider the consequences of an expansion or, indeed, a contraction of a legal concept that they are considering.
TP1 (ThirdParty): All the more so, it might be thought, if, as here, there has to be a clear focus on the intention of the framers of the convention.
TP1 (ThirdParty): And that was precisely the reasoning of the grand chamber in Birrami and Serramati at paragraph 149.
TP1 (ThirdParty): The grand chamber there looked directly at those consequences, not merely any consequences, but the ones I identified.
TP1 (ThirdParty): They did so for the purpose of considering the concept of attributability, which was ultimately in issue in that case.
TP1 (ThirdParty): But the legal analysis involved is precisely the same.
TP1 (ThirdParty): It doesn't turn on attributability versus jurisdiction as a concept.
TP1 (ThirdParty): One is simply using the potential consequences and their seriousness as a legal guide for determining the true scope and effect of the legal concept under consideration.
TP1 (ThirdParty): So that's my answer to the second question.
Dean Spielmann (JudgeP): Thank you Mr. Eadie. We have now come to the end of the hearing.
Dean Spielmann (JudgeP): The decision of the judgment will be delivered later.
Luis López Guerra (JudgeP): Good morning. I declare open the public hearing in the case of Károly Nagy versus Hungary.
Luis López Guerra (JudgeP): The application was lodged with the Court on 19th October 2009 under Article 34 of the Convention by a Hungarian national, Mr. Károly Nagy.
Luis López Guerra (JudgeP): The application was allocated to the second section of the Court, pursuant to Rule 52.1 of the Rules of the Court.
Luis López Guerra (JudgeP): The application was communicated to the Government on 20th January 2014.
Luis López Guerra (JudgeP): On 1st December 2015, a chamber of the second section delivered its judgment in the case.
Luis López Guerra (JudgeP): It held that there had been no violation of Article 6.1 of the Convention.
Luis López Guerra (JudgeP): On 8th December 2015, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request on 2nd May 2016.
Luis López Guerra (JudgeP): Alliance Defending Freedom was granted leave to submit written comments, except third party, by virtue of Rule 44.3 of the Rules of the Court.
Luis López Guerra (JudgeP): The Government are represented by their agent, Mr. Zoltán Tallódi, assisted by Mrs. Mónika Weller, a co-agent.
Luis López Guerra (JudgeP): The applicant is represented by Mr. András Cech, counsel, assisted by Mrs. Márta Nagy and Mr. Balázs Várhalmy, advisors.
Luis López Guerra (JudgeP): The applicant is also present.
Luis López Guerra (JudgeP): I welcome the representatives in the name of the Court, and I also welcome groups of judges from France, Poland and Russia, and judges and prosecutors from the European Judicial Training Network who are on a study visit to the Court.
Luis López Guerra (JudgeP): I would explain that in addition to interpreting in the two official languages of the Court, English and French, interpreting into Russian and Polish has been authorized for the benefit of the judge from those countries.
Luis López Guerra (JudgeP): That interpreting is not arranged by the Court, and no transcription of the oral translation will be included in the official record of the proceedings.
Luis López Guerra (JudgeP): Having consulted the agent of the Government and the representative of the applicant, I have determined the order of addresses as follows.
Luis López Guerra (JudgeP): Mr. Cech, for the applicant, will speak first, and then Mr. Tallódi for the Government.
Luis López Guerra (JudgeP): I call Mr. Cech.
AP1 (Applicant): someone in the crowd said to him, teacher, tell my brother to write the inheritance with me.
AP1 (Applicant): Jesus replied, man, who appointed me a judge or an arbiter between you?