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2018 | THE NETHERLANDS District Court of The Hague, East Java torture victim v. The State of The Netherlands, Case nr: C/09/483033 / HA ZA 15-201, 18 July 2018

Court

District Court of The Hague

Type of decision

Judgment

Date judgment

18 July 2018

Case no.

C/09/483033 / HA ZA 15-201

Area of jurisdiction

Civil law

Claim

The Dutch state is responsible and liable for the wrongful act committed against the plaintiff

Principle legal argument(s)

Compensation claim is not subject to a period of limitation.

Type of reparation sought

Compensation for immaterial damages (trauma)

In this civil suit, the plaintiff claims to have been captured and mistreated by Dutch forces during a purge of nationalist fighters on East Java –formerly part of the Dutch East Indies colony- in 1947. He claims that the Dutch State hereby acted wrongfully towards him and is liable for immaterial damages suffered by him. The Dutch State pleads that a) the plaintiff’s claim has exceeded the legal limitation period and b) the plaintiff has submitted insufficient evidence for the asserted wrongful acts.

In its first interlocutory judgment of 27 January 2016 the District Court (the Court) ruled that, in view of the specific circumstances of the case, the application of the limitation period would be unfair.[1] In addition, the Dutch State was ordered to substantiate its defense on the evidence issue - which became the focal point of the following interlocutory judgments. The Dutch State claimed to have found no indication that the plaintiff was detained at one of its prisons on East Java (link second interlocutory judgment of 27 July 2016). Next, the Court asks the plaintiff to submit additional evidence for his mistreatment (link third interlocutory judgement of 8 March 2017) and appointed an expert to conduct forensic research on the plaintiff’s scars.[2] The Court delivered its final judgment on 18 July 2018.

The Plaintiff’s additional evidence

As additional evidence, the plaintiff submitted a witness statement written by himself and another written by his sister, an interview he had given before becoming aware of the possibility for suing the Dutch State, and pictures of his scars. The latter were examined by the forensic expert whose report was added as additional evidence. These pieces of extra evidence satisfied the Court as being ‘consistent’. Furthermore, the Court found it plausible that the plaintiff was indeed kept prisoner without having been registered as such, since the Dutch State failed to keep a proper registration of its prisoners on East Java. Consequently, the Court rejected the Dutch State’s defense plea on this point. This lead the Court to conclude that the plaintiff had sufficiently proven that he was imprisoned by the Dutch military for a long time in 1947 (para. 2.23). And since there were no indications that his scars had a different cause than the mistreatment he alleged, the Court found it was sufficiently proven that Dutch military personnel had committed a wrongful act by a) hitting the plaintiff on the head with a piece of wood and b) by putting out a cigarette on his head (paras. 2.37-2.38, 2.45-2.46, 2.59). The Court found insufficient proof for two other forms of asserted mistreatment.

Immaterial damages

The plaintiff claimed that the mistreatment had caused trauma. Although he could not underpin this claim with a psychiatric report, the Court did not doubt the fact that the mistreatment caused anxieties that resulted in trauma, and awards the plaintiff € 5,000 in immaterial damages (paras. 2.65, 2.69).


[1] In legal terms under former law defined as ‘contravening the principle of good faith.’ Currently, it is referred to as ‘the principle of reasonableness and fairness.’

[2] The plaintiff passed away one week before the expert would examine his scars. It was then decided that the forensic research would be based on the available pictures/documents.