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Between 21 July and 5 August 1947, during so called ‘police actions’ Dutch militaries tried to ‘restore calm and order’ on East Java, where a guerilla war was ongoing. In this case, plaintiff claims that during these police actions, he was captured and for eight days was tortured by Dutch militaries. In particular he claims that during his imprisonment, he was repeatedly, electrocuted, forced to drink water which he subsequently had to vomit and that he was tied up to a pole. Plaintiff seeks a declaratory judgment that his torture at the hands of Dutch military personnel, during his imprisonment, constituted wrongful action by the Dutch State, for which the Dutch State is liable for the non-monetary damages he has suffered and will be suffering in future. He requests the Court to determine the extent of the damage at € 50,000.- (paras. 3.1, 3.2).

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It is undisputed that the Dutch State is liable for damages suffered by the plaintiff if he was indeed tortured by Dutch military personnel. It thus falls to the court to establish:

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• whether the alleged torture of the plaintiff by Dutch military personnel, during his alleged imprisonment in 1947 did  in fact occur, and if so,
• whether this alleged torture caused the plaintiff suffering warranting non-pecuniary damages.

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Having determined that the applicable law for adjudicating this case is former Dutch civil law (para. 4.1), the Court firstly addresses the Dutch State’s defence that the plaintiff’s claim has exceeded the limitation period defined in Dutch civil law. After having explained that all the actual circumstances of the case must be taken into account when assessing whether application of the legal limitation period would contravene the principle good faith, the Court determines that,  in view of the following relevant circumstances, applying a limitation period in this case indeed would contravene the principle of good faith as enshrined in Dutch law (para. 4.5):

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• Plaintiff’s claims compensation for his own[1] non-monetary damage, i.e. psychological suffering (para. 4.8).
• Uniqueness of this case in the sense that plaintiff claims a wrongful  act on the basis of being tortured by Dutch military personnel in the former Dutch East Indies colony, whereas similar cases before this Court on misconduct of Dutch troops in the former colony, between 1946-1969, related to summary executions.
• Seriousness of the alleged facts (para. 4.9): being detained, plaintiff was fully in the power of the Dutch military, from which he could not withdraw himself. Moreover, both former and current regulations do not tolerate that a prisoner is subjected to torture.
• Although the Dutch state did not know/could not have known from the beginning about this particular instance of alleged torture, it was nonetheless aware of serious misconduct against detained persons by the Dutch military during the period 1946-1949, in forms comparable to the torture a alleged in this case (para. 4.11).
• Analogue to the Rawagedeh case, the Court considers that the plaintiff’s legal, social, cultural, political and economic position, de facto withheld them from access to justice for a long period of time and therefore, that it would be unreasonable to require of the plaintiff that he should have held the Dutch State liable “within a reasonable period after the damage became evident”, as is prescribed by Dutch civil law. Moreover, immunity barred the Dutch State from being sued before foreign Courts (paras. 4.12, 4.13). Neither has it become evident that plaintiff could have sued the Dutch State before any Dutch Court within the limitation periods enshrined in former Dutch law (Dutch “Verjaringswet 1924” and Article 2004 former Dutch Civil Act). Based on these arguments, the Court determines that the reasonable period of time within which the Dutch State may be held liable begins from the moment the plaintiff has been informed of the possibility of holding the State liable. The Court accepts the plaintiff’s substantiated statement that this moment was in 2014, and additionally takes into account his advanced age and the fact that he lives in a remote area with no access to media, computers or on-line information (paras. 4.16, 4.17).
• Analogue to the Rawagedeh case, the claim stems from a dark chapter in Dutch history that has not yet been closed.

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Importantly, the Court stresses that in every (new) case on alleged wrongful acts of Dutch troops in the former Dutch East Indies colony from 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. 4.22).

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Evidence

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Dutch civil law puts the burden of proof on the plaintiff. To substantiate his claim, the plaintiff puts forward written statements by himself and his brother and points at literature relating to the misconduct of detainees by Dutch military personnel in the former Dutch East Indies colony (para. 4.29). In its defence, the Dutch State argues that this evidence is insufficient (para. 4.31). To resolve this issue, the Court orders the Dutch State to further clarify its position on the disputed evidence and, in particular, to report on research (to be) conducted by the Dutch State on the correctness of plaintiff’s statement that he was detained and tortured (paras. 4.32, 5.1). Until such time, the Court reserves any further decision.  

This is the first time a Dutch court is adjudicating a claim against the Netherlands for torture by Dutch Military personnel in the former Dutch East Indies colony. Earlier claims for wrongful acts during the relevant period in the colony in Indonesia concerned summary executions.

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Epilogue

As appears from the Court’s second interlocutory Judgment of 27 July 2016, the Dutch State has meanwhile submitted its petition regarding the disputed evidence. The petition shows that the files of the Dutch Institute for Military History (in Dutch “Nederlands Instituut voor Militaire Historie” (NIMH))and the National Archive (in Dutch “Nationaal Archief”) have been consulted, in particular regarding the registration of detainees at the alleged (prison) locations. Although the research indicates that the prisons indeed existed, the Dutch State purports that there is no indication that this plaintiff was detained at any of these locations, let alone that he was tortured there. In response, the Court decides that the plaintiff must provide further evidence, and may, if he wishes, call for witnesses.

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The plaintiff indicated that he wishes that his sister and he will be heard as witnesses. In addition he requests the Court to appoint an expert to conduct forensic research on his scars – see third interlocutory Judgment of 8 March 2017.

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[1] 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.

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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.