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A Private (International) Law Intermezzo in the Law of Criminal Procedure

Published online by Cambridge University Press:  21 May 2009

W.E. Haak
W.E. Haak
Affiliation:
Vice-President of the Hoge Road der Nederlanden [Supreme Court of the Netherlands].
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Extract

(1.1) The discussion regarding the place and influence of rules of public law in private international law has, at least in respect to dogma, yielded lasting results. Concepts such as priority rules or règles d'application immédiate have become common property in the law of conflicts. The doctrine of priority rules has been recognized to a certain extent by Article 7 of the EC Convention on Contractual Obligations. The question of to what extent such a rule is applied in practice is determined chiefly by how it is appraised by the courts and their willingness, within the classical private international law framework, to apply foreign rules of public law, the applicability of which arises out of their own nature. This determination is made within the framework of private law procedure and the status of public law is, in that case, also to be examined within a private law framework.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 105 - 117
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. H.U. Jessunin d'Oliveira in ‘Die Freiheit des niederländischen Richters bei der Entwicklung des internationalen Privatrechts’, RabelsZ (1975) p. 224 et seq., sees a clear connection between the system of substitute judges and the case law in the area of private international law.

As an example of an authoritative decision, mention may be made of the judgment of the Amsterdam Rechtbank of 13 May 1975 (NJ 1976 no. 323, with a note by J.C. Schultsz). Franx, who later became Attorney General, and Voskuil participated in this decision as judge and substitute judge, respectively. It was held, contrary to an established opinion of the Hoge Road, that a choice-of-forum clause opting for a foreign court (also not within the ambit of Art 17 of the EEC Judgments Convention) meant mat the Dutch court lacked jurisdiction, rather than mat the claim was inadmissible. This point of view was finally adopted by the Hoge Road in 1988 (see HR 25 October 1988, NT 1989 no. 765).

2. Demeersseman, H.A., De autonomie van net materiële strafrecht [The autonomy of substantive aiminal law] (Dissertation Free University Amsterdam, 1985).Google Scholar

3. NJ 1982 no. 583, with a note by A.C. 't Hart.

4. In the sense of Art. 321 Wetboek van Strqfrecht (Sr.) [Code of Criminal Law].

5. Compare the note by't Hart under the same judgment of the Hoge Road.

6. HR 18 January 1983, NJ1983 no. 445, with a note by Th.W. van Veen. See also Verheul, J.P., ‘Foreign Export Prohibitions: Cultural Treasures and Minerals’, in NILR (1984) p. 419 et seq.Google Scholar

7. Before 1 January 1992 Art. 2014 Burgerlijk Wetboek (BW) [Civil Code]; see also Arts. 3:87 and 119(1) BW.

8. With the exception of the three year term of Art. 3:86(3) BW.

9. There is also a draft bill No. 21.504 pending that amends this rule.

10. The cited passages are taken from the Explanatory Memorandum (p. 12) accompanying the Act of 22 May 1958 amending the provisions regarding confiscation and seizure, Stb. 1987 no. 296. The draft bill No. 21.504 makes significant changes in these provisions.

11. See also Davids, W.J.M., ‘Een eigen art. 2014 van de strafrechter?’Google Scholar [The criminal court's own Art 2014], in Stryards, G.A.M., ed., De derde rechtsingang nader bekekenGoogle Scholar [A further examination of the third form of suit], Essays in Honour of C. Bronkhorst (1988) p. 69 et seq.Google Scholar

12. See Art 552a et seq. Sv. This procedure will also be amended if draft bill No. 21.504 comes into force, which I expect to be the case in 1993.

13. Compare HR 9 September 1986, NT 1987 no. 869. But this summary legal regulation has been supplemented by case law where gaps were too great; i.e., compare HR 23 June 1987, NJ1988 no. 43, with a note by Van Veen, sub 4.

14. HR 3 June 1986, NJ 1987 no. 174.

15. See also, Henriquez, E. Cohen, ‘Buitenlands publiekrecht, Nederlands(-Anrilliaans) privaatrecht en de betrokkenheid van de notaris bij de toepassing daarvan’ [Foreign public law, private law of the Netherlands (Antilles) and the involvement of the notary in its application]Google Scholar, in Borman, J.A., ed., Recht op Scherp [Law in focus], Essays in Honour of W. Duk (1984) pp. 529, 530.Google Scholar

16. In the same sense, see also Van Veen in his note in NJ 1983 no. 445.

17. It follows from Art 552d(2) Sv. that appeal is not allowed for the complaint procedure, appeal in cassation.

18. The Hoge Rood can only decide whether the court below has applied the law (of the Netherlands) correctly and whether it has observed the requirements of form, the non-observance of which is sanctioned by nullity.

19. HR 12 June 1984, NJ 1985 no. 173.

20. Trb. 1965 no. 10.

21. Art 6(2) reads:

‘Any property, as well as original records or documents, handed over in execution of letters rogatory shall be returned by the requesting Party to the requested Party as soon as possible unless the latter Party waives the return thereof.’

22. The case involved the processional cross as well as two manuscripts.

23. ‘Ter vergroting van de afpakkans’ [Increasing the chance of being caught], Inaugural Lecture University of Amsterdam (1990) p. 25 et seq.

24. Draft bill No. 21.504, which was submitted mid 1990 to the Lower House of the Parliament I expect that it comes into force in 1993.

25. Draft bill No. 21.345, which was submitted in October 1989 to the Lower House of the Parliament.

26. Trb. 1989 no. 97.

27. For the sake of completeness, it may be mentioned that the draft bill on specific criminal law seizures (including seizure of stock shares and property the transfer or creation of which must be listed in the public registers) refers in general — thus also in the case of seizure of objects mat are to serve as evidence in a criminal case or that can be confiscated or removed from public use — to certain formalities regulated in the Code of Civil Procedure.

28. Memorie van Toelichting (MvT) [Explanatory Memorandum] draft bin No. 21.504, p. 55.Google Scholar

29. Ibid.

30. P. 45.

31. MvT.p.46.

32. As described by the Hoge Road in its opinion on me draft of the law; cf., MvT 21.504, p. 52.

33. Draft bill No. 21.345.

34. MvT draft bill No. 21.504, p. 46.