2019 | THE NETHERLANDS The Hague Court of Appeal, Heirs Java torture victim v. The Netherlands, Case no. 200.247.634/01, October 1st, 2019
Between 21 July and 5 August 1947, during so called ‘police actions’ Dutch military tried to ‘restore calm and order’ on East Java, where a guerilla war was ongoing. Plaintiff claimed that during these police actions, he was captured and tortured by Dutch military, and now holds the Dutch State liable for the non-monetary damages he has suffered and will continue to suffer in future. In 2018, The Hague District Court found proven that the plaintiff was beaten on the head with a piece of wood and that a cigarette was put out on his head. It decided that the Dutch State’s invocation of the period of limitation with regard to plaintiff’s compensation claim was not reasonable and fair.
The Dutch State appealed this decision reasoning that former Dutch civil law–applicable to this case- did not provide for the possibility to derogate from the period of limitation on grounds of reasonableness and fairness (except on one ground, not relevant here). Additionally, the Dutch State claims that the invocation of the statute of limitations is not unacceptable in view of the criteria of reasonableness and fairness. It also contests that the tortured man was not in a position to lodge his claim earlier and within the legally prescribed reasonable period of time. Lastly, the Dutch State submits that there is insufficient proof for the alleged mistreatment (para. 6).
The Court of Appeal (the Court) determines that Dutch law is applicable to this case. Since the damage, ensuing form the Dutch forces wrongful acts, occurred before January 1st, 1992, the law applicable to plaintiffs’ compensation claim is former Dutch civil law. The Statute of Limitations of 31 October 1924 (in Dutch ‘Verjaringswet’) applies as well, given the fact that this case involves a monetary claim against the Dutch State.
Reasonableness and fairness overrule period of limitation
Addressing the question whether former Dutch civil law leaves room for derogating from the period of limitation in cases when its application would be unacceptable on grounds of reasonableness and fairness, the Court relies, among other things, on the Dutch Supreme Court’s guidelines (paras. 13-15). It finds that the extraordinary seriousness of the crimes (gross human rights violations against the background of cleansing actions in a colonial war) and the Dutch State’s high degree of culpability for the mistreatment, are important factors setting aside the period of limitation. In this context, the Court notes that (international) criminal law excludes war crimes and crimes against humanity from periods of limitation (para. 15.2). Furthermore, the Court notes that the Dutch State had a legal due diligence obligation to adequately document relevant information about its prisoners and their injuries. Since it failed to do so while it could and should have expected future claims, it has itself to blame for now struggling with substantiating its defense (para. 15.3).
Parallel to its finding in similar cases, the Court determines that the tortured man’s legal, social, cultural, political and economic position de facto kept him from access to justice for a long period of time. A (strict) application of the period of limitation would therefore be unfair. Yet, the plaintiff is held to his legal obligation to lodge his claim within a reasonable time from the moment the aforementioned obstacles dissolved, which he has done (para. 15.4). This moment must be sufficiently verifiable and made objective. In this case, that is the moment the plaintiff knew about the possibility of suing the Dutch State for compensation for his damages. The Court specifically adds that it must concern knowledge that could not have been available at an earlier stage due to the obstacles referred to (paras. 15.5-15.7)
Torture sufficiently proven
The Court rules that the torture allegations are sufficiently proven on the basis of the witness statements of the plaintiff and his sister, a medical expert report and the Dutch State’s inability to adequately rebut the allegations (paras. 22-23).
The court confirms the judgment of the Court of First Instance that awarded € 5,000.- compensation for immaterial damages suffered.
 Since plaintiff deceased in September 2017, his heirs litigate in his name.
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.