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2015 | THE NETHERLANDS District Court of The Hague, Peniwen widow v. The Netherlands, Case no. C-09-467005 HA ZA 14-0651, 11 March 2015

Court

District Court of The Hague, The Netherlands

Type of decision

Judgment

Date judgment

11 March 2015

Case no.

C-09-467005 HA ZA 14-0651

Area of jurisdiction

Civil Law

Claim

The Dutch State is liable for the claimant’s past and future damages.

Principle legal argument(s)

The Dutch State has acted unlawfully against the claimant because of the summary execution of her husband by Dutch military forces. The liability claim is not time-barred

Type of reparation sought

  • Compensation for material and immaterial damages;
  • Reimbursement of the lawyer’s fee (costs granted to the claimant by the Dutch Council for Legal Aid Board, in case the Council decides to reimburse these costs.)
  • Payment of other costs of the legal proceeding

This case strongly resembles preceding cases brought by widows of summarily executed men in Rawagade and in South Sulawesi (2015, 2016 and 2019), both in its substance as in the reasoning of the Dutch District Court (the Court). In these similar cases, the court found that the Dutch State was liable for the widows’ damages. The widows ultimately agreed to an out-of-court settlement of € 20,000.- per person. In addition, the Dutch State paid their lawyers’ fee and other costs of the legal proceedings. Subsequently, the Dutch State designed a settlement governed by private law (in Dutch Bekendmaking), settling future claims of widows of summarily executed men in the same way, without recourse to the judiciary.

On 19 February 1949, during a purge aimed at supressing nationalist insurgents in the former Dutch East Indies colony, Dutch soldiers summarily executed unarmed patients and some members of the medical staff of a hospital in the village of Peniwen (East Java), including the claimant’s husband.

On 7 April 2014 the claimant applied to the Dutch State for a settlement of her claim under the Bekendmaking. To secure her rights, in case the request for settlement was unsuccessful, she simultaneously summoned the Dutch State (para. 2.22). In July 2014, the Dutch State offered her a settlement under the Bekendmaking. The claimant, however, refused to accept the settlement since, in contrast to the settlement of the Rawagade and South Sulawesi widows, it did not include compensation for her lawyer’s fee. After the widow had passed away in June 2014, the legal representatives pursued her case on her behalf, requesting the court to order the Dutch State to pay 20,000 Euros compensation and the lawyer’s fee.

Liability claim not time-barred

Although the Dutch State acknowledged it’s liability for the unlawful Peniwen executions (para. 4.18), it claimed that the liability claim was time-barred. Analogous to the aforementioned cases, the court found the claim not time-barred. It reasoned that it would be unfair to apply the statute of limitations given the seriousness of the unlawful executions and the fact that the widow in fact had no access to justice given her social, legal, cultural, political and economic position. Moreover, state immunity impaired her from suing the Dutch State before an Indonesian court (paras 4.6-4.11, 4.17).

Compensation claim to be substantiated

The court rejected the claim for compensation for non-material damages since applicable former Dutch civil law leaves no room therefor on the grounds set forth by the widow. Neither was she eligible, as she had claimed, for non-material damages on the basis of a breach of the right to life under Article 2 of  the European Court of Human Rights since this treaty had not yet entered into force at the time of her husband’s execution (paras. 4.26-4.27, 4.29).

As regards material damages, being the loss of income, the court determined that no rights can be derived from the settlement amount of the Bekendmaking and saw no grounds for assuming that the loss of income is in any case € 20,000. The claimants were therefore asked to substantiate the loss of income as concretely as possible.

Lawyer's fee

Claimants asked the court to order the Dutch State to pay for the costs of their lawyer. These costs were granted to them by the Dutch Council for Legal Aid Board but the claimants expected the Council to reimburse these costs when they accepted the Dutch State's settlement proposal. The court, however, ruled that there was no legal basis therefor and that the claimants could not derive any enforceable rights from the fact that the Dutch State was prepared to pay the lawyer's fees of the widows of Rawagede and South Celebes (paras. 4.41-4.42, 4.44).

After negotiations, the claimants agreed to a settlement of € 20,000 compensation.

More Dutch colonial crimes jurisprudence can be found here under 'Cases before National Courts (Europe)'. The Nuhanovic Foundation commissioned a study on the impacts of litigation, including this case, in relation to systematic and large scale atrocities committed by the Dutch military in the Dutch Indies/Indonesia between 1945-1949. The report can be accessed here.