ECLI:NL:GHSGR:2009:BK7374, Gerechtshof 's-Gravenhage, 26-10-2009, K08/0386 B
Gerechtshof 's-Gravenhage — Uitspraak 
Datum: 2009-10-26 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: (Translation in English of LJN BK1478)
        1. In the opinion of the Court of Appeal, the Netherlands does not now have jurisdiction over the complainee since the Public Prosecution Service has carried out no investigation whatever into the complainee's alleged role or share in the torture of the complainant (and was indeed unable to carry out an investigation given the shortness of the complainee's stay in the Netherlands) and also since the complainee was not arrested at that time and is no longer in the Netherlands. 2. As regards the expediency of prosecuting the complainee in the Netherlands, the Court of Appeal would observe for the record that, quite apart from the lack of jurisdiction, the further investigation that would be necessary in Israel would not seem possible at first sight since it is unlikely that the Israeli authorities would consent to this. 3. The Court of Appeal considers that it was reasonable for the public prosecutor to decide not to institute criminal proceedings against the complainee after he left the Netherlands. The complaint is dismissed.

Translation in English of LJN: BK 1478, The Hague Court of Appeal, K08/0386 
    
    Judgment 
    
    
      THE HAGUE COURT OF APPEAL
      In chambers
    
    
    
      ORDER
      made in respect of the written complaint filed under article 12 of the Code of Criminal Procedure, which was received at the registry of the Court of Appeal on 7 October 2008 and submitted by:
    
    
    
      complainant,
      who has chosen as his address for service in this matter the office of his counsel L. Zegveld, attorney-at-law, at Keizersgracht 560-562, (1017 EM) Amsterdam,
      for failure to institute criminal proceedings for one or more criminal offences allegedly committed against him by the complainee.
    
    
    THE COURSE OF THE PROCEEDINGS
    
    1.  On Friday 16 May 2008 the complainant's counsel laid a written information against the complainee at the National Public Prosecutor's Office for torture committed in the period from 31 December 1999 to February 2000. This 6information, together with its annexes, was received by the National Public Prosecutor's Office on the same day.
    
    The information stated that the complainee, the former head of the Israeli secret service and currently Minister without Portfolio in Israel, would be in the Netherlands from 17 to 20 May 2008. 
    
    It was also stated in the information that the complainee would be speaking at a symposium held in the Hilton Hotel in Amsterdam on 18 May 2008 to mark the 60th anniversary of Israel and that he would be addressing the Dutch Parliament on 20 May 2008. 
    
    A copy of the announcement of the symposium on 18 May 2008 stating that the complainee would be one of the speakers was filed with the information.
    
    
      In the information the complainant's counsel requested the public prosecutors to inform her as quickly as possible, but by Monday 19 May 2008 at the latest, whether criminal proceedings would be instituted against the complainee.
      It is apparent from the public prosecutor's letter to the complainant's counsel of 17 June 2008 that the public prosecutor had requested the Board of Procurators General on Monday 19 May 2008 to advise as a matter of urgency on whether the complainee, in view of his position as Minister, enjoyed immunity from jurisdiction as referred to in article 8 of the Criminal Code.
    
    
    Following her telephone conversation with the public prosecutor on 19 May 2008, in which she was informed that the advice of the Board of Procurators General had been sought, the complainant's counsel wrote a letter the same day to the public prosecutor. In this letter she drew the attention of the public prosecutor to the advisory opinion prepared by the Procurator General at the Supreme Court of the Netherlands in the case of H. H., which concerned the immunity of H., a former director of the Afghan Military Intelligence Service. She contended that it followed from this opinion that the complainee did not enjoy immunity.
    
    The complainant's counsel also wrote to the Board of Procurators General on 20 May 2008 pointing out that the complainee would be leaving the Netherlands at around noon that day and asking the Board reply to the public prosecutor's request for advice as a matter of urgency. 
    
    It is evident from a letter of 5 September 2008 from the Board of Procurators General to the complainant's counsel that the Board had sought the opinion of the Minister of Foreign Affairs through the intermediary of the Minister of Justice on 19 May 2008, in compliance with the Directive on the Disposal of Informations relating to Offences under the International Crimes Act. The opinion of the Minister of Foreign Affairs was received by the Board on 21 May 2008 through the intermediary of the Ministry of Justice and forwarded to the public prosecutor that same day.   
    
    It is evident from the above-mentioned letter of 17 June 2008 from the public prosecutor to the complainant's counsel that the public prosecutor received the advice of the Board of Procurators General on 21 May 2008. As the complainee was no longer in the Netherlands at that time and there was no indication that he would return to the Netherlands in the foreseeable future, the public prosecutor decided not to institute criminal proceedings against the complainee.
    
    2. The complaint has been filed against this decision.
    
    3. After consulting the chief public prosecutor concerned at the National Public Prosecutors' Office, the advocate general at The Hague Court of Appeal, S.A. Minks, recommended to the Court of Appeal in his opinion of 29 June 2009 that the complaint filed by the complainant should be declared inadmissible.
    
    4. The Court of Appeal considered the complaint in chambers on 19 August 2009. The complainant's counsel, L. Zegveld, attorney-at-law in Amsterdam, gave evidence at the hearing. The complainee was not summoned to attend.
    
    5. The complainant's counsel stated, when asked, that the complainant wished to persist in his complaint.
    
    6. The advocate general recommended at the hearing in chambers, in keeping with his written opinion, that the complaint should be declared inadmissible.
    
    POSITIONS TAKEN BY COMPLAINANT AND PUBLIC PROSECUTION SERVICE   
    
    The position taken by the complainant
    
    a) The complainant takes the position, in essence, that the Netherlands had jurisdiction at the time of the complainee's presence in the Netherlands.  
    
    According to the complainant, this jurisdiction was not a consequence of any arrest of the complainee or of the information itself or any investigative act by the Public Prosecution Service. Instead, the jurisdiction was attributable to the mere presence of the complainee on Dutch territory. The complainant's counsel refers in the information to the following finding in the judgment of the Supreme Court of 18 September 2001 (NJ (Nederlandse Jurisprudentie) 2002, 559): 'The prosecution and trial in the Netherlands of an alleged offender for an offence within the meaning of sections 1 and 2 of the Torture Convention Implementation Act, which was committed abroad, is possible only if a basis as mentioned in that Convention for the establishment of jurisdiction is present, for example because the alleged offender or the victim is of Dutch nationality or must be equated with a Dutch national, or because the alleged offender is in the Netherlands at the time of his arrest.' 
    
    The complainant considers that this jurisdiction continues to exist, even after the complainee's departure from the Netherlands.
    
    In the opinion of the complainant, the length of the complainee's stay in the Netherlands is not relevant to the establishment and continuation of jurisdiction. 
    
    The position of the Public Prosecution Service
    
    b) The question of whether the Netherlands had jurisdiction at the time of the complainee's stay in the Netherlands was not addressed explicitly in either the public prosecutor's memorandum of 6 February 2009 or the advocate general's opinion of 29 June 2009. 
    
    They take the position that at the time the Public Prosecution Service was required to decide on whether or not to institute a criminal investigation the complainee had already left the Netherlands and that the only matter still to be decided is therefore whether the Netherlands has jurisdiction even after the complainee's departure. 
    
    The public prosecutor and the advocate general refer to the above-mentioned finding in the judgment of the Supreme Court in the Bouterse case of 18 September 2001 and also refer to the Explanatory Memorandum to the International Crimes Act, which includes the following passage on the determination of jurisdiction: 'The question is at what point jurisdiction should be determined. When introducing article 4 (7o) of the Criminal Code, the government suggested that this should be the time when proceedings are instituted (Parliamentary Papers II 1971/72, 11 866, no. 3, p. 5). In its recent judgment in the case concerning the 'December murders' in Suriname, the Supreme Court limited the universal jurisdiction that results from the Torture Convention to situations in which 'the alleged offender is in the Netherlands at the time of his arrest' (Supreme Court 18 September 2001, op. cit., finding 8.5); the Supreme Court referred in this connection to the legislative history of article 4 (7o) of the Criminal Code.
    
    The decision to choose the time of arrest rather than of institution of proceedings as the moment for determining jurisdiction provides a clearer indication that this form of jurisdiction is about the place where the suspect is found. A reasonable application of this criterion means that investigative activities may be undertaken and investigative powers exercised if and as soon as there is a good reason to believe that the suspect is on Dutch territory. This means, for example, that if there is good reason to believe that the suspect is hiding in the Netherlands, the police and the Public Prosecution Service can initiate investigative activities (e.g. telephone taps) with a view to his arrest. In the absence of such a belief, however, the government considers that no such powers may be exercised as there is no realistic prospect of prosecution in the Netherlands. On the other hand, the government assumes that if the suspect were to escape abroad after jurisdiction had been established as a consequence of arrest, the jurisdiction would continue to exist (see also Parliamentary Papers II, 1972, 11 866, no. 9, p. 3). In such a case, a state in which the suspect is later rearrested could be requested to extradite him to the Netherlands in order to resume the criminal proceedings. It should be noted for the record that extradition may not be requested if the suspect has never been in the hands of the Dutch criminal justice authorities, since in this case the jurisdiction required for extradition to the Netherlands is lacking. 
    
    The public prosecutor and the attorney general have concluded that after the departure of the complainee from the Netherlands there was no basis for holding that jurisdiction had continued: the complainant had not been arrested during his brief stay in the Netherlands, no investigative activities had been undertaken and there was no evidence that the complainee had any ties with the Netherlands.
    
    THE COURT OF APPEAL
    
    In the light of the positions described above the Court of Appeal has decided - before expressing a view on the decision of the public prosecutor not to institute a criminal investigation - to rule on the question of whether the Netherlands has jurisdiction in the present case.
    
    The statutory framework
    
    An information was laid on behalf of the complainant against the complainee for torture committed in the period from 31 December 1999 (the arrest of the complainant) until February 2000 by the complainee, who was head of Shin Bet, the Israeli security service, from 18 February 1996 to 14 May 2000. The information states that the acts of which the complainant became a victim should be classified as torture. The complainant contends that the Torture Convention Implementation Act is applicable to them.
    
    Articles 2 to 8 of the Criminal Code lay down who is subject to Dutch criminal law. Jurisdiction is based on the territoriality principle, to which articles 3-8 of the Criminal Code make a number of additions and corrections. Some parts of article 4 of the Criminal Code completely sever the specific connection with the Dutch legal order. These relate to offences of such magnitude that they must always be capable of being punished in the Netherlands, no matter where they have been committed in the world or by whom or against whom.     
    
    
      No jurisdiction can be derived from the International Crimes Act, which entered into force after the commission of the alleged offences, since the legislator expressly decided in the interests of legal certainty that it should not have retroactive effect.  
      The relevant provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention of 10 December 1984, Dutch Treaty Series 1985, 69) read as follows: 
    
    
    
      Article 1
      1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 
    
    
    
      Article 2
      1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 
      2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. 
      3. An order from a superior officer or a public authority may not be invoked as a justification of torture.  
    
    
    
      Article 4
      1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.  
      2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.  
    
    
    
      Article 5
      1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: 
      (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;  
      (b) when the alleged offender is a national of that State; 
      (c) when the victim is a national of that State if that State considers it appropriate.  
      2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.  
      3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.   
    
    
    
      Article 6
      1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.  
      2. Such State shall immediately make a preliminary inquiry into the facts.  
    
    
    
      Article 7
      1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 
      2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1. 
    
    
    The Torture Convention Implementation Act (Act of 29 September 1988, Bulletin of Acts and Decrees 478, implementing the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) entered into force on 20 January 1989. The relevant provisions of this Act read as follows:
      
    
      Section 1
      1.  Maltreatment by a public official or other person in the service of the authorities in the course of his duties of a person who has been deprived of his liberty, with a view to extracting information or a confession from him, punishing him, or intimidating or coercing him or a third person to do or permit something, or out of contempt for his right to human dignity will be punished as torture if the acts are conducive to promoting the intended aim and will carry a term of imprisonment not exceeding 15 years or a fifth-category fine.
      2.  Conduct which deliberately brings about a condition of extreme fear or any other form of serious mental distress will be equated with maltreatment.
      3.  If the offence causes death, the guilty person will be liable to a sentence of life imprisonment or to a term of imprisonment not exceeding 15 years or a fifth-category fine.
    
    
    
      Section 2
      The following persons are liable to the same sentences as those carried by the offences referred to in the previous section:
      (a) a public official or any other person in the service of the authorities who, by one of the means referred to in article 47, paragraph 1 (2o) of the Criminal Code, incites or deliberately permits the commission by another person of a form of maltreatment referred to in section 1;
      (b) any person who commits the form of maltreatment referred to in section 1 if such maltreatment has been incited or deliberately permitted by a public official, or any other person in the service of the authorities, in the course of his duties, by one of the means referred to in article 47, paragraph 1 (2o) of the Criminal Code.
    
    
    
      Section 5
      Dutch criminal law is applicable to any person who is guilty of committing one of the indictable offences defined in sections 1 and 2 of this Act outside the Netherlands.
      Assessment by the Court of Appeal
    
    
    7. In deciding whether the Netherlands has jurisdiction in the present case, the Court of Appeal proceeds on the basis of the following facts:
    
    
      * the offences to which the information relate were allegedly committed in Israel in the period between December 1999 and February 2000;
      * the complainant is a Palestinian and lives in Gaza City in the occupied Palestinian territories;  
      * the complainee resides in Israel and was head of the Israeli security service at the time of the alleged offences and Minister without Portfolio in the Israeli government at the time of his stay in the Netherlands;
      * neither the complainant nor the complainee has Dutch nationality and neither is (currently) staying in the Netherlands;
      * there is no evidence that the complainee is being or has been prosecuted in Israel or any other state for the acts of which he is accused by the complainant, nor that a request for the extradition of the complainee has been made by any state.
    
    
    8. The Court of Appeal also considers it important to note that there is nothing on the file to show that the Public Prosecution Service carried out any investigation or undertook any investigative act as a result of the information, other than an investigation into the possible immunity of the complainee. The complainee was not interviewed or arrested and he left the Netherlands after a visit of a few days.
    
    9. The Court of Appeal sees no reason to address the question raised by counsel in the complaint, namely whether the Public Prosecution Service should have acted more expeditiously, since this is not relevant in deciding whether jurisdiction now exists.
    
    10. Although there is no record of when the complainant entered and left the Netherlands, the Court of Appeal assumes, in view of the documents that have been lodged, that he was in any event in the Netherlands on 18 and 19 May 2008 and that he left on 20 May 2008.
    
    11. The question to be decided by the Court of Appeal is whether the Netherlands now has jurisdiction - following the complainee's departure from the Netherlands - in respect of the offences allegedly committed by him. To answer this question, it may be relevant in certain circumstances to know whether the Netherlands had jurisdiction at the time of the complainee's stay in the Netherlands.
    
    
      12. As regards the question of whether the Netherlands had jurisdiction at the time of the complainee's stay in the Netherlands, the Court of Appeal considers the following points to be of particular importance:
      a) the complainee's presence in the Netherlands;
      b) the information and any investigation instituted as a result of it.
    
    
    The Court of Appeal holds as follows in this connection:
    
    a) Article 5 (2) of the Torture Convention obliges a State Party to take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him. Section 5 of the Torture Convention Implementation Act unconditionally provides that Dutch criminal law is applicable to any person who is guilty of committing one of the indictable offences defined in sections 1 and 2 of the Act (which include torture) outside the Netherlands. 
    
    In the Bouterse judgment cited above, however, the Supreme Court qualified the provisions of section 5 of the Act. The Supreme Court held that prosecution and trial in the Netherlands of an alleged offender is possible only 'if a basis as mentioned in that Convention (Court of Appeal: i.e. the Torture Convention) for the establishment of jurisdiction is present, for example (...) because the alleged offender is in the Netherlands at the time of his arrest'. 
    
    In addressing the question of the criterion for the establishment of jurisdiction the Explanatory Memorandum to the International Crimes Act, as noted above, referred to the presence of the suspect in the Netherlands at the time of his arrest. However, section 2 of the International Crimes Act merely states that there is jurisdiction 'if the suspect is in the Netherlands'. In view of the above, it seems to the Court of Appeal that the suspect's presence in the Netherlands can be a sufficient ground for the establishment of jurisdiction, without the arrest of the suspect being necessary.
    
    b) The Court of Appeal has taken note of the information laid by the complainant and the accompanying explanation and documents and finds as follows in this connection. The information states that the complainant was arrested and then tortured in order to extract a confession (to what is not mentioned). The complainant does not say who arrested him or by whom or what organisational unit he was tortured. He merely alleges, without further details, that the complainant committed the torture or had some (indirect) responsibility for it in his position at that time. 
    
    
      The Court of Appeal cannot determine with sufficient certainty from the information and the accompanying explanatory notes whether the complainee was classified as a suspect at the time of his stay in the Netherlands. Indeed, in view of the submissions and the available data, it may even be doubted whether there was the slightest suspicion against the complainee. Nor is this altered by the documents accompanying the information, which quote statements by the complainee to the effect (in essence) that, generally speaking, he approved of the interrogation methods used by his service. 
      The Court of Appeal considers the classification as a 'verdachte' (suspect) to be of importance since under the Torture Convention (and, by extension, section 2 of the International Crimes Act) there has to be a suspect if jurisdiction is to be established. In the Bouterse judgment the Supreme Court used the term 'vermoedelijke dader', which was evidently based on the English text of the Convention. Articles 5 (2) and 6 (1) of the English text refer to the 'alleged offender' and 'a person alleged to have committed any offence' respectively. The French text of the Convention uses the term 'une personne soupçonnée'. 
    
    
    In the opinion of the Court of Appeal this disparity with the English text is of relatively minor importance since article 6 (1) also provides that the custody and other legal measures 'shall be as provided in the law of that State'. The Court of Appeal assumes that custody and other legal measures are possible in the Netherlands only if there is a person who can be treated as the suspect, certainly in cases not involving extradition. In the opinion of the Court of Appeal the terms 'alleged offender' and 'vermoedelijke dader' can to this extent - and in so far as relevant here - be equated with the term 'verdachte' as used in the Dutch translation of the Torture Convention, which corresponds with the French text.
    
    Article 6 (1) of the Torture Convention also provides that a State Party should take a suspect into custody or take other legal measures to ensure his presence once it is satisfied, after an examination of information available to it, that the circumstances so warrant. The Court of Appeal considers - to put it mildly - that the possibility cannot by any means be excluded that further investigation was needed if the complainee was to be treated as a suspect, i.e. as someone reasonably suspected of an offence. The Court of Appeal is not aware of any such investigation. The Court of Appeal therefore doubts whether the complainee was already a suspect and could have been interviewed or arrested as such in the Netherlands.
    
    13. In view of the finding at 12 b) above, the Court of Appeal doubts whether the information and the complainee's brief stay in the Netherlands provided the Public Prosecution Service with sufficient grounds to establish jurisdiction in practice and de facto in this case. In the opinion of the Court of Appeal there is a close connection between the conditions set in the Act and the Convention for the existence or possible existence of jurisdiction and its actual realisation. The Court of Appeal is therefore unable to agree with the complainant's counsel that the fact that jurisdiction existed in principle is in itself sufficient to warrant its continuation. 
    
    14. On the other hand, in so far as it must be concluded that the Netherlands had jurisdiction over the complainee at the time of his stay in the Netherlands there is no evidence that the Public Prosecution Service took any further steps in practice to exercise such jurisdiction. In view of the above, the mere investigation of the complainee's possible immunity, in keeping with the Directive on the Disposal of Informations relating to Offences under the International Crimes Act (Government Gazette 2003, 147), is not regarded by the Court of Appeal as such a step.
    
    15. In the opinion of the Court of Appeal the Netherlands does not now have jurisdiction over the complainee since the Public Prosecution Service carried out no investigation whatever into the complainee's alleged role or share in the torture of the complainant (and was indeed unable to carry out an investigation given the shortness of the complainee's stay in the Netherlands) and also since the complainee was not arrested at that time and is no longer in the Netherlands. The Court of Appeal also notes here that the wording used in the Convention and the Act is 'is present', not 'was present' or 'has been present'. Nor, by the way, does the Court of Appeal consider it likely that the complainee will return to the Netherlands at some time in the future.
    
    16. The Court of Appeal refers in this connection to the Explanatory Memorandum to the International Crimes Bill, which also used that wording: 'There are good reasons for limiting universal jurisdiction to suspects present in the territory of the state. First, trial in absentia, without any connection with the case (...), is generally seen as inappropriate. And, second, trial in absentia can easily give rise to conflicts of jurisdiction (...).' The Court of Appeal therefore notes that it was, above all, the wish to prevent trials in absentia (and such a trial would almost certainly have occurred in the present case if proceedings had been instituted by the Public Prosecution Service) which was decisive in the inclusion of a provision in the Act limiting universal jurisdiction to cases in which the person concerned is present in the Netherlands. 
    
    17. As regards the expediency of prosecuting the complainee in the Netherlands, the Court of Appeal would observe for the record that, quite apart from the lack of jurisdiction, the further investigation that would be necessary in Israel would not seem possible at first sight since it is unlikely that the Israeli authorities would consent to this.
    
    18. In view of the above, the Court of Appeal considers that it was reasonable for the public prosecutor to decide not to institute criminal proceedings against the complainee after he left the Netherlands.
    
    19. It follows that the complaint should to this extent be dismissed. 
    
    20. An alternative request made on behalf of the complainant is that an anticipatory investigation should be ordered into the facts on which the complaint is based. However, as there is no statutory power to make such an order in complaint proceedings this request too must be dismissed. 
    
    
    DECISION:
    
    The Court of Appeal:
    
    dismisses the complaint.
    
    
      This order was made on 26 October 2009 by:
      R. Noordam, presiding judge
      G. Oosterhof and E.P.J. Myjer, members
      in the presence of M.C. Zuidweg, clerk of the court.
    
    
    This order has been signed by the presiding judge and the clerk of the court.
    
    No ordinary legal remedy lies against this decision.