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2016 | THE NETHERLANDS District Court of The Hague, East Java rape victim v. The State of the Netherlands, Case nr: C/09/483032 / HA ZA 15-200, 27 January 2016

Court

District Court of The Hague, The Netherlands

Type of decision

Interlocutory judgment

Date judgment

27 January 2016

Case no.

C/09/483032 / HA ZA 15-200

Area of   jurisdiction

Civil Law

Claim

Plaintiff seeks a declaratory judgment that the Dutch State   committed a wrongful act towards her, in the form of rape by Dutch military personnel, and seeks to hold the Dutch State liable for non-monetary damages she has suffered and will be suffering as a result of this wrongful act.

Principle legal   argument(s)

  • The wrongful act of the Dutch soldier that raped her is attributable to the Dutch state and as such constitutes a wrongful act of the Dutch State;
  • Plaintiff’s damage claim is not subject to a period of   limitation.

Type of reparation sought

Compensation for past and future non-monetary damages (psychological suffering).

 

In an attempt to fight nationalistic “terrorists” in East-Java, which at the time was part of the Dutch East Indies colony,  Dutch military personnel carried out so called “police actions” on East Java, on February 19 and 20, 1949. While searching the local village Peniwen, the Dutch military summarily executed persons as well as committing other unlawful acts. In the course of these events, the plaintiff claims to have been raped by five Dutch military men on 19 February 1949 (para. 3.2). She seeks a declaratory judgment that the Dutch State acted wrongfully towards her through her rape by Dutch soldiers and that it is liable for non-monetary damages she has suffered and will be suffering in future. She requests the Court to determine the extent of the damage at € 50.000,- (para. 3.1).

Having determined that the applicable law for adjudicating this case is former Dutch civil law (para. 4.1), the Court addresses the Defence’s assertion that the plaintiff’s claim has exceeded the legal limitation period. The Court however, decides[1] that applying this limitation period in this particular case, would contravene the principle of good faith (para. 4.4). It explains that in order to establish a contravention of the principle of good faith, all concrete circumstances of the case must be taken into account (para. 4.6). In this case these are:

  • Plaintiff’s claims compensation for her own[2] non-monetary damage, i.e. psychological suffering  (para. 4.7);
  • Seriousness of the alleged facts: rape is a very serious violation of physical integrity and constitutes a wrongful act of the perpetrator toward the victim. Plaintiff allegedly was raped in her own house at gunpoint by five Dutch soldiers, which is intolerable, if proven (para. 4.8.);
  • The absence of any access to justice prevented the plaintiff from filing charges against the Dutch State within the legal limitation period:
    • Analogue to the 2011 Rawagedeh case, the Court considers that the plaintiff’s legal, social, cultural, political and economic position, de facto withheld her from access to justice for a long period of time and that therefore it would be unreasonable to require her to have held the Dutch State liable within ‘a reasonable period’ after the rape (para. 4.14).
    • Immunity barred the Dutch State from being sued before foreign Courts.
    • It has not become evident that the plaintiff could have sued the Dutch State before a Dutch Court within the limitation periods enshrined in former Dutch law (the Dutch “Verjaringswet 1924” and Article 2004 former Dutch civil law Act) (para. 4.15);
    • Nor did the plaintiff have access to justice through the “Commission Van Pel” –set up by the Dutch authorities - given that the latter was not mandated to establish the civil liability of the Dutch State (para. 4.16). Based on these arguments, the Court determines that the reasonable period of time within which to hold the Dutch State liable began from the moment the plaintiff was informed of the possibility of holding the Dutch State liable for the rape. The Court accepts the plaintiff’s substantiated statement that this was in 2014. In addition, the Court takes into account her advanced age and the fact that she lives in a remote area with no access to media, computers and on-line information.
    • Repeating (verbatim) its reasoning in previous cases[3], the Court considers that the plaintiff’s claim stems from a dark chapter in Dutch history that has not been closed yet.

As in previous cases, the Court stresses that its finding, that applying the legal limitation period strictly, would contravene the principle of good faith, applies only to this specific claim and that in every (new) case on alleged wrongful acts of Dutch troops in the former Dutch East Indies colony in 1946- 1949, the actual circumstances of the case are decisive for determining whether setting aside the applicability of a the limitation contravenes the principles of good faith (para. 4.24).

Importantly, the Court establishes that the rape contravened instructions given to the Dutch military by their superior, which is relevant for the question whether the wrongful conduct of the soldiers in question is attributable to the Dutch State and as such constitutes a wrongful act of the Dutch State (para. 4.10). 

The Court concludes that the plaintiff’s allegations of rape by Dutch military personnel are sufficiently substantiated (para. 4.41), and rules that these soldiers committed a wrongful act against the plaintiff, under Article 1407 of the former Dutch civil law Act. Nevertheless, the Court observes that this wrongful act cannot be attributed to the Dutch State under the provision upon which the plaintiff relies (Article 1401 of the former Dutch civil law Act). However, using its discretionary power to posit supplementary legal grounds, the Court determines that attribution to the State is nevertheless possible, based on Article 4013 (3) of the former Dutch civil law Act and on the attribution standards in force at that time.

Reparations 

The Court observes that, according to the Supreme Court at the time, a wrongful act based on former Dutch civil law (Article 1407 former Dutch civil law Act) could lead to a claim for non-monetary damages, that Article 1403 of this former Act does not limit or exclude awarding such damages, and that the Dutch State can in principle be held liable to pay compensation (para. 4.59).

Despite the presentation of only fairly scant evidence of psychological suffering by plaintiff, the Court accepts this is as generally well-established, stating that “rape is a very serious violation of physical integrity and it is commonly known that rape, in particular committed by armed perpetrators during an armed conflict, can lead to psychological damage.“ (para. 4.62).

With reference to calculations on compensation for sexual abuse addressed in multiple sources, the plaintiff askes the Court to determine the extent of the damage at € 50,000. The Court however explains that compensation above € 10,000 is awarded only in sexual abuse cases in which the impact is demonstrably of an even more serious nature. Considering all the circumstances of the rape, the Court grants compensation for non-monetary damages of € 7.500 (paras. 4.70-4.72, 5.1).

The Dutch State has announced that it will compensate the plaintiff as ordered by the Court. At the same time, in an attempt to clarify which war crimes are (still) and which crimes are no longer eligible for compensation, the Dutch State has lodged an appeal to review the District Court’s arguments for adapting the legal limitation period.

This case represents an important victory in relation to the question of the reasonable application of the statutes of limitations to historical abuses committed under colonial regimes and during armed conflict. It also reflects the advances made in the last two decades in recognising – and making reparation for - war-time rape, as both categorically unlawful and also attributable to States.

 

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[1] This is parallel to the District Court’s decision in the 2016 East Java torture case, the 2015 South Sulawesi widows & children case and the 2011 Rawagedeh case.

[2] Here a difference presents itself from the South Sulawesi widows & children case, where the Court pointed out that under former and present Dutch civil law, relatives cannot claim non-monetary damages.

[3] i.e. the 2016 East Java torture case, the 2015 South Sulawesi widows & children case and the 2011 Rawagedeh case.