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2015 | THE NETHERLANDS District Court of The Hague, South-Sulawesi widows, children & Foundation Komite Utang Kehormatan Belanda v. The State of the Netherlands, Case nos: C-09-428182 + C-09-458254 + C-09-467025 + C-09-467029

Court

District Court of The Hague, The Netherlands

Type of decision

1st Interlocutory judgment

Date judgment

11 March 2015

Case nos.

C-09-428182 / C-09-458254   / C-09-467025 / C-09-467029 

Area of   jurisdiction

Civil Law

Claim

Plaintiffs seek a declaratory judgment that the Dutch State committed a wrongful act towards them and seek to hold   the Dutch State liable for monetary and non-monetary damages they have and will be suffering as a result of the wrongful act.

Principle legal argument(s)

Plaintiffs primarily purport that their claims are not subject to a period of limitation.

Type of reparation sought

Compensation for past and future damages

 

This case arose from a purge in South-Celebes (the present South-Sulawesi; at the time part of the Dutch East Indies colony) in the period December 1946 - April 1947, during which Dutch military personnel summarily executed men suspected of prohibited nationalist activities and/or terroristic acts.

In this interlocutory judgment, that covers four civil proceedings, the District Court of The Hague rules that the Dutch State is liable for the damage suffered by the widows and children (plaintiffs) of the executed men of South-Celebes.  

Plaintiffs seek a declaratory judgment that the Dutch State committed a wrongful act towards them and seek to hold the Dutch State liable for monetary and non-monetary damages they have and will be suffering as a result of the wrongful act (paras. 3.1-3.2). They argue that their claims are not subject to a limitation period (para. 4.4.)

In its defence, the Dutch State, that has acknowledged the wrongfulness of the executions, advances that plaintiffs’ claim is subject to a period of limitation and, moreover, that the children of the executed men are not eligible for damages (para. 3.7). However, the Court rejects the applicability of limitation period vis-à-vis both the widows (paras. 4.5, 4.18) and the children (paras 4.24 4.25), reasoning that:

  • In the given circumstances, acceptance of a limitation period would contravene the principles of reasonableness and fairness (paras. 4.5-4.18).
  • The summary executions of men who - at the time - were Dutch nationals, by Dutch troops, is an exceptional situation (para. 4.6).
  • From the beginning, the Dutch State was aware of these wrongful acts and could and should have anticipated that it would be held liable at a point in time and would have to pay damages to relatives.
  • The Dutch State has acknowledged that the executions were wrongful.
  • Given the widows’ legal, social, cultural, political and economic position, de facto they had no access to justice for a long period of time. It follows that it would be unreasonable to require them to hold the Dutch State liable “within a reasonable period after the damage became evident”, as is prescribed by Dutch civil law.
  • Analogue to the Rawagedeh case, the claims stem form a dark chapter in Dutch history that has not yet be considered as closed yet (para. 4.13).

Significantly, the Court also decides - and this is contrary to the decision of the District Court in the Rawagedeh case of 2011 - that the children of the executed man can indeed claim damages. It holds that both former and present Dutch civil law treat spouses and children equally as the most directly affected relatives of the deceased, and that the children in this case, some of whom witnessed the execution of their father, have born the scars of their fathers’ loss throughout their lives (paras. 4.26-4.28).

Are all plaintiffs indeed widows and children of the wrongful executed men?

To be eligible for compensation, plaintiffs must establish that:

  1. They are a widow or child of
  2. A man who was summarily executed by the Dutch military serving under the (colonial) Dutch government of that time (para. 4.34).

Not all plaintiffs have provided sufficient proof of their status of wife/child. In this context parties argue about the evidential value of i) a man’s having been (re)buried in an honorary cemetery, ii) the man’s name having been included in the “list with 214 victims of Blukumba”, and iii) written statements by village chiefs and eye witnesses (para. 4.36).  To resolve the question of the evidentiary value of these indications, the Court considers appointing an expert.

Reparations

Damages

Whereas plaintiffs also claim non-pecuniary damages, the Court takes the position that former Dutch civil law (Article 1407 BW) provides no basis for compensation of non-pecuniary losses of relatives (para. 4.66), a position that it backs up with reference to decisions of the Dutch Supreme Court. Furthermore, plaintiffs’ argument that they have a right to non-pecuniary compensation under the European Convention of Human Rights is rejected, given that this convention entered into force after the alleged facts and lacks retroactive effect (para. 4.71)

The extent of the damage

Plaintiffs must individually prove, and substantiate with as much concrete detail as possible, the extent of their lost income (para. 4.81). Since the children can only claim their lost income up until the moment that they became, or were able to become, economically independent from their parents, they are additionally required to establish when that moment arrived. Alternatively, they could provide evidence indicating the moment at which their father’s parental obligations would have ended, according to the applicable Dutch-Indies or Indonesian law of that time (para. 4.82)

Finally, the Court grants plaintiffs the opportunity to present the required supporting evidence to prove their status of wife/child, to which the Dutch State than can respond. The Court reserves any further decision until such evidence has been presented.

Following this interlocutory judgment, the Dutch State reached an amicable settlement with a number of the widows.