Court Battle Dutch-American Extradition Treaty New 20pg Transcripts The Latest


Court Battle Dutch-American Extradition Treaty New 20pg Transcripts The Latest

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Court Battle Dutch-American Extradition Treaty New 20pg Transcripts The Latest


Conclusion AG. Caribbean extradition case; extradition to US. Grounds complain (1) about the ineffectiveness of the Extradition Decree of Aruba, Curaçao and Sint Maarten, (2) about the Court’s judgment that failures associated with (the procedure for) deprivation of liberty do not mean that the Court has to advise against not allowing the extradition requested and (3 ) that the Court ignored the fact that there were ongoing prosecutions for offenses for which extradition was requested. Conclusion leads to rejection.

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ATTORNEY GENERAL
AT THE
SUPREME COURT OF THE NETHERLANDS
Number 21/04979 UC

https://www.stmaarten.news

Session 21 June 2022

CONCLUSION
DJMW Paridaens

In the business

[claimed person] ,

born in [place of birth] on [date of birth] 1983,

hereinafter: the claimed person.

Introduction

  1. By advice of November 16, 2021, the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba concluded that the prosecution of the person claimed to the United States “for the facts as set out in the above under 3 under i. is admissible and advised the Governor of Curaçao to extradite the requested person “for the facts mentioned under 4.3” to the United States of America. By this the Court apparently intended to declare the extradition admissible for the facts described in the Affidavit in Support of Request for Extradition of Jonathan P. Lax, Assistant United States Attorney, dated 13 July 2021, attached to the extradition request.
  2. There is consistency with cases Nos 21/04844, 21/04845, 21/04846 and 21/04978. In these matters I shall also conclude today.
  3. The appeal in cassation has been lodged on behalf of the person claimed and C. Reijntjes-Wendenburg, lawyer in Valkenswaard, has presented three grounds of appeal.

First remedy

  1. The ground of appeal complains that the Extradition Decree of Aruba, Curaçao and Sint Maarten (hereinafter: the Extradition Decree) has lost its binding force, because according to the current opinion the matter in question may only be regulated by (state) law and because the decree cannot (any longer) ) meets the basic conditions of a (proper) regulation, namely to make known what the law is, so that the Court should have assumed that extradition by Curaçao is not possible due to a lack of a sound legal basis.
  2. In the explanation of the plea, the author of the plea considers developments with regard to the Extradition Act, as it applies to the Netherlands on the one hand, and the Extradition Decree, as it applies to Aruba, Curaçao and Sint Maarten, on the other. The explanation also contains various objections that, according to the author of the plea, are attached to the Extradition Order. The core of the plea is that the Extradition Order has lost its binding force due to aging. The plea focuses on two aspects, namely that according to current views extradition may only be regulated by (state) law and that the Extradition Decree does not meet the requirement of recognisability.

Regulation by (state) law

  1. This part of the plea is based on the fact that in 1954, when the Charter for the Kingdom of the Netherlands came into effect, a temporary situation – the enforcement of the then Curaçao Extradition Decree 1926 – and of which the Kingdom Parliament had already five years ago has expressly determined that it may no longer continue, is nevertheless maintained, without any prospect of development, unless the court intervenes.
  2. In this context, the following provisions are important:
  • art. 3, first paragraph, Charter for the Kingdom of the Netherlands (hereinafter: the Charter):

“Without prejudice to the provisions elsewhere in the Statute, Kingdom affairs are:

h. the extradition.”

  • art. 14 Status:

“1. Rules regarding Kingdom affairs are – insofar as the matter concerned is not regulated in the Constitution and subject to the international regulations and the provisions of the third paragraph – by Kingdom Act or, in the relevant cases, by Order in Council.

The Kingdom Act or the Order in Council may instruct or leave it to other bodies to lay down further regulations. The entrustment or abandonment to the countries is the responsibility of the legislature or the government of the countries.

  1. If the regulation is not reserved to the Kingdom Act, it can be effected by Order in Council.
  2. Rules regarding matters of the Kingdom, which do not apply in Aruba, Curaçao or Sint Maarten, are established by law or order in council.

  • art. 55 Status:

“1. Amendments to this Charter are effected by Kingdom Act.

  1. A proposal for an amendment, adopted by the States General, is not approved by the King until it has been accepted by Aruba, Curaçao and Sint Maarten. This acceptance takes place by national ordinance.

This national ordinance is not adopted until the draft has been approved by Parliament in two readings. If the draft is approved at first reading with two-thirds of the votes cast, it will be adopted immediately. The second reading will take place within one month after the draft has been approved in the first reading.

  • art. 57 Status:

“Laws and Orders in Council that applied in the Netherlands Antilles have the status of Kingdom Act or Order in Council, on the understanding that, insofar as they can be amended by national ordinance pursuant to the Charter, they have the status of national ordinance.”

  1. The Extradition Decree, formerly called the Curaçaosch Extradition Decree 1926 and the Netherlands Antilles Extradition Decree, respectively, already existed when the Statute was introduced in 1954. When the Statute came into effect, the Extradition Decree therefore, on the basis of art. 57 Statute obtained by order in council for the Kingdom. I would also like to point out that the Extradition Decree concerns an order in council for the Kingdom that has no basis in a Kingdom Act. Such general administrative measures without a basis in a Kingdom Act are also referred to as independent general administrative measures. 1
  2. The plea raises the question whether the extradition for Aruba, Sint Maarten and Curaçao can be arranged in an (independent) order in council for the Kingdom or whether the extradition must be regulated by Kingdom Act. This question has already been answered by the Civil Chamber of the Supreme Court in the judgment of 7 November 2003. In so far as relevant, the Supreme Court considered the following:

“3.3.2 Part 1 opposes the judgment of the Court of Appeal that the grounds of appeal I and II of [claimant] et al. fail, and repeats the position defended in first instance and on appeal that extradition or the actual surrender of deprivation of liberty is inherent and that, pursuant to the provisions of art. I.5 paragraph 1, under f, of the Constitution of Aruba, art. 2 paragraph 3 and art. 15 paragraph 1 Grw. and art. 5 paragraph 1 ECHR principle expressed by or by virtue of a principle with due observance of art. 5 paragraph 1 ECHR must be expressly permitted to be admissible, which is not the case here.

3.3.3 This complaint must be viewed against the background of the following. At the time of the establishment of the Charter, extradition was regulated for the then Netherlands Antilles in the Curaçao Extradition Decree 1926. Pursuant to the transitional provision of art. 57 Statute, this decree – the name of which was later changed to the Netherlands Antilles Extradition Decree – was given the status of an order in council. This decision continued to apply to extraditions from Aruba when Aruba received the separate status. According to art. 3 paragraph 1, opening words and under h, of the Charter, extradition is a matter for the Kingdom. According to art. 14 Statute, matters of the Kingdom are regulated by Kingdom Act or Order in Council; if the arrangement is not reserved to the Kingdom Act, it can be done by order in council. The Charter does not contain a rule from which it follows that the extradition must be regulated by Kingdom Act. It follows from all this that regulation of extradition by the Netherlands Antilles Extradition Decree is not in conflict with any provision of the Statute. The plea does not contest this, but argues that this does not alter the fact that a law in the formal sense is required as a basis for extradition on the basis of other provisions.

3.3.4 The appeal that the part makes for this purpose on art. 15 paragraph 1 of the Grw., which means that no one may be deprived of his liberty outside the cases determined by or pursuant to the law, does not apply, since, irrespective of whether this provision is applicable here, the Netherlands Antilles Extradition Decree can be regarded as a regulation under a law in the formal sense, namely the Staff Regulations. Also from art. I.5 paragraph 1, preamble and under f, Constitution of Aruba – which provision means insofar as relevant here: “No one may be deprived of his liberty, except according to rules to be laid down by or pursuant to national ordinance (…) f. (. ..) if a deportation or extradition procedure is pending against him.” – it does not follow that the Netherlands Antilles Extradition Decree is an insufficient basis for an extradition such as the present one. As has been considered above, it follows from the Charter, which is a regulation of a higher order than the Constitution of Aruba, that for the Netherlands Antilles and Aruba extradition can be arranged by order in council. It follows from this that it also applies here that the Netherlands Antilles Extradition Decree can at least be seen as a regulation pursuant to a law in the formal sense.

3.3.5 Art. 2(3) of the Grw., which insofar as it is now relevant means that (further) regulations regarding extradition are given by law, does not support the view defended by the section either. from art. 5 paragraph 2 Statute, which provides that the Constitution observes the provisions of the Statute, it follows that the Statute is a regulation of a higher order than the Constitution. This means that the in art. The power laid down in the Charter to choose between a Kingdom Act and an Order in Council cannot be nullified by the Constitution by prescribing a Act. This does not alter the fact that the Constitution for the regulation applicable exclusively in the Netherlands on the basis of art. 14 paragraph 3 of the Charter has made use of the power of choice in the sense that regulation is prescribed by law. That art. 2 paragraph 3 Grw. regulates a matter of the Kingdom and therefore itself pursuant to art. 5 paragraph 3 Statute has been established by Kingdom Act, does not alter the fact that this provision contains a regulation exclusively for the Dutch constitution, in the same way as the above-discussed art. I.5 paragraph 1, preamble and under f, Constitution of Aruba provides a rule for only the Aruban constitution. in the same way as art. I.5 paragraph 1, preamble and under f, Constitution of Aruba provides a rule for only the Aruban constitution. in the same way as art. I.5 paragraph 1, preamble and under f, Constitution of Aruba provides a rule for only the Aruban constitution.

3.3.6 The section argues that also from art. 5 paragraph 1 ECHR follows that the deprivation of liberty necessarily associated with extradition must be formally regulated by law in order to be admissible. This argument fails because the Court of Appeal correctly ruled that the term “law” in art. 5(1) preamble, ECHR does not necessarily imply legislation in the formal sense. This follows, also with regard to deprivation of liberty, from the case law of the European Court of Human Rights (cf. ECtHR 26 April 1979, series A, 30, NJ 1980, 46, and ECHR 23 September 1998, ECHR Reports 1998- VII, pp. 2719, NJ 2000, 29).” 2

  1. It follows from the foregoing that the extradition for Aruba, Curaçao and Sint Maarten can be arranged in accordance with the Charter by an (independent) order in council. Strictly speaking, this is not contested by the author of the plea. However, the author of the plea argues that, according to current views, extradition may only be regulated by (state) law.
  2. The author of the plea first of all invokes the fact that arrangement of extradition by Kingdom Act was preferred according to the Kingdom government. Reference is made in this regard to the explanatory notes to the decision of 21 August 1981 to amend the Curaçao Extradition Decree 1926. 3 The accompanying explanatory notes, insofar as relevant here, apparently include the following: 4

“In the light of modern developments in the field of extradition law on the one hand, and in the field of international relations on the other, the Curaçao Extradition Decree 1926 can be regarded as outdated. In 1967 the Dutch Extradition Act of 6 April 1875, Stb. 66, with which the Curaçao Extradition Decree 1926 is closely related, has been replaced by the current law of March 9, 1967, Stb. 139. When that law was drafted, it was explained why a revision of Dutch extradition law was then sufficient. In addition, the Dutch government declared itself willing to enter into the necessary consultations, should it turn out that also in Suriname and the Netherlands Antilles there was a need for a new regulation on this matter (Appendix Hand. Tweede Kamer, session 1964-1965). – 8054, no. 3, pp. 9-10). The government of the Netherlands Antilles has meanwhile expressed this need. A new extradition regulation for the Netherlands Antilles should not only provide for an adjustment of the provisions, which indicate the conditions under which new extradition treaties can be concluded, but also a completely new set-up of the procedure according to which foreign extradition requests are processed. . Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. The government of the Netherlands Antilles has meanwhile expressed this need. A new extradition regulation for the Netherlands Antilles should not only provide for an adjustment of the provisions, which indicate the conditions under which new extradition treaties can be concluded, but also a completely new set-up of the procedure according to which foreign extradition requests are processed. . Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. The government of the Netherlands Antilles has meanwhile expressed this need. A new extradition regulation for the Netherlands Antilles should not only provide for an adjustment of the provisions, which indicate the conditions under which new extradition treaties can be concluded, but also a completely new set-up of the procedure according to which foreign extradition requests are processed. . Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. A new extradition regulation for the Netherlands Antilles should not only provide for an adjustment of the provisions, which indicate the conditions under which new extradition treaties can be concluded, but also a completely new set-up of the procedure according to which foreign extradition requests are processed. . Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. A new extradition regulation for the Netherlands Antilles should not only provide for an adjustment of the provisions, which indicate the conditions under which new extradition treaties can be concluded, but also a completely new set-up of the procedure according to which foreign extradition requests are processed. . Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. which indicate the conditions under which new extradition treaties can be concluded, but also in a completely new set-up of the procedure according to which foreign extradition requests are processed. Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds. which indicate the conditions under which new extradition treaties can be concluded, but also in a completely new set-up of the procedure according to which foreign extradition requests are processed. Following the Dutch Extradition Act of 1967, the procedure that is currently in force, in which a judicial advice is sufficient, would make way for a procedure in which the court pronounces on the admissibility of an extradition in open court and with a negative decision the Governor binds.

This will require a completely new set-up, which should preferably be arranged by Kingdom Act (after all, extradition is a kingdom matter pursuant to Article 3, first paragraph, opening words and under h of the Charter for the Kingdom) with the repeal of the current Curaçao Extradition Decree. 1926.

It goes without saying that drafting and enacting such a Kingdom Act will take time. In the meantime, a new extradition treaty has recently been concluded between the Kingdom and the United States of America and negotiations on a new treaty are also at an advanced stage with Canada. The conditions included in these treaties, under which the parties to the treaty undertake to mutually extradite, do correspond to the provisions of the Dutch Extradition Act, but not wholly with those of the Curaçao Extradition Decree 1926. The question is therefore current whether the validity of these treaties for the Netherlands Antilles must wait until an entirely new Extradition Act for the Netherlands Antilles has been enacted,

The undersigned believes, wholly in accordance with the view held by the government of the Netherlands Antilles about this, that the latter path should be followed. A provisional revision of the Curaçao Extradition Decree 1926, in anticipation of its replacement by a regulation by Kingdom Act, will, if it not to miss its purpose, must be limited to an adjustment to a number of essential parts, so that the Decree is compatible with the principles of extradition treaties that have been modernized or have yet to be implemented. Furthermore, the opportunity can be taken to remove or modernize a number of outdated concepts and provisions. The attached draft decision is limited to this set-up.” 5

  1. The author of the plea also invokes the advice of the Council of State of the Kingdom of 11 September 1995 on the draft decision that led to the Decree of 28 December 1995 amending the Netherlands Antilles Extradition Decree 6 . That advice, in so far as relevant here, includes the following:

“The Council of State of the Kingdom has established that the regulations regarding extradition are set at different levels of regulation in the parts of the Kingdom of the Kingdom. In the Netherlands, in accordance with Article 2, third paragraph, of the Constitution, extradition is regulated in the Extradition Act; the Netherlands Antilles Extradition Decree applies to the Netherlands Antilles and Aruba, which is amended by this draft decree. pursuant to Article 3(h) of the Statute of the Kingdom of the Netherlands, extradition is a matter for the Kingdom. Article 14 of the Charter provides that regulations in this regard shall be laid down by Kingdom Act or, in appropriate cases, by Order in Council. Although it can be argued on the basis of this article that rules regarding extradition can be laid down by Order in Council, in the opinion of the Council, in the light of the current views on the primacy of the legislator in a formal sense for this important subject – and in particular for the extradition of our own nationals – such a decision will no longer suffice. The idea that a law is appropriate here in a formal sense is also in line with Article 2, third paragraph, of the Constitution, which provides that further regulations regarding extradition are given by law. It would then not be obvious to choose a different level of regulation for the other parts of the Kingdom without further motivation. In the view of the Council, in the light of the current views on the primacy of the legislator in a formal sense for this important subject – and in particular for the extradition of its own nationals – such a decision is no longer sufficient. The idea that a law is appropriate here in a formal sense is also in line with Article 2, third paragraph, of the Constitution, which provides that further regulations regarding extradition are given by law. It would then not be obvious to choose a different level of regulation for the other parts of the Kingdom without further motivation. In the view of the Council, in the light of the current views on the primacy of the legislator in a formal sense for this important subject – and in particular for the extradition of its own nationals – such a decision is no longer sufficient. The idea that a law is appropriate here in a formal sense is also in line with Article 2, third paragraph, of the Constitution, which provides that further regulations regarding extradition are given by law. It would then not be obvious to choose a different level of regulation for the other parts of the Kingdom without further motivation.

The Council recommends expediting the preparation of a Kingdom Act with regulations on extradition and, until such a Kingdom Act comes into force, that the rules and guarantees in the Netherlands Antilles Extradition Decree fully correspond with those in the Extradition Act. ” 7

  1. It emerges from the foregoing that arrangement of extradition by Kingdom Act was preferred according to the explanatory memorandum and that the Council of State of the Kingdom advised to arrange extradition by Kingdom Act because “in the light of the current views on the primacy of the legislator in a formal sense for this important subject” can no longer suffice with an order in council. However, the desirability of a regulation by Kingdom Act does not alter the fact that, as the Council of State of the Kingdom considered defensible in 1995 and as the Supreme Court ruled in 2003, extradition for Aruba, Curaçao and Sint Maarten can be arranged by order in council for the government.
  2. Finally, the author of the plea relies on a Kingdom Act proposal that would limit the possibility to issue an order in council for the Kingdom without a legal basis. The then AG Langemeijer already referred to this proposal for a Kingdom Act in its conclusion prior to the judgment of the Supreme Court of 7 November 2003. 8 The draft Kingdom Act was adopted – in amended form – by the House of Representatives on 14 June 2016 and adopted by the Senate on 5 July 2016. 9
  3. The Kingdom Act 10 proposal adopted by the House of Representatives and the Senate means that art. 14, first paragraph, of the Charter would read as follows:

“Regulations regarding matters of the Kingdom are – insofar as the matter concerned is not regulated in the Constitution and subject to international regulations and what is determined elsewhere in the Charter – by or pursuant to Kingdom Act. In exceptional cases of an urgent nature, the determination may be made by an order in council for a period of maximum two years that is not based on a Kingdom Act or on provisions elsewhere in the Charter. After this period of two years, such order in council will lapse by operation of law.

The Kingdom Act or the Order in Council may instruct or leave it to other bodies to lay down further regulations. The entrustment or the entrustment to the lands is to the legislature or the government of the lands.”

Furthermore, in the proposal of the Kingdom Act in art. II provide for transitional law for independent general government measures. These would remain in force for a maximum of four years after the Kingdom Act came into force, on the understanding that in exceptional cases it could be determined that an order in council for the Kingdom will remain in force for a longer period of time.

  1. Although the proposal for a Kingdom Act has been adopted by the House of Representatives and the Senate, there is currently no question of a Kingdom Act. The proposal may, on the basis of art. 55, second paragraph, of the Charter will not be approved by the King until it has been accepted by Aruba, Curaçao and Sint Maarten. In a letter dated 9 August 2016, the Minister of the Interior and Kingdom Relations, with a view to applying art. 55, second paragraph, Statute The Prime Minister of Aruba, Curaçao and Sint Maarten reported that the House of Representatives and the Senate have adopted the bill. 11 Sint Maarten and Curaçao have now accepted the bill. 12
  2. The mere circumstance that it appears from the adoption of the Kingdom Act proposal that a majority of the House of Representatives and the Senate deemed it desirable to restrict the possibility of issuing independent general administrative measures of the Kingdom, cannot lead to the conclusion that existing independent general measures taken by central government are therefore already non-binding. As long as the Kingdom Act proposal has not yet been ratified by the King, the Kingdom Act has not yet entered into force and four years have passed since the Kingdom Act came into effect, the Kingdom Act proposal will have no consequences for existing independent general measures of government.
  3. In view of the foregoing, the plea fails insofar as it complains that the Extradition Order has lost its binding force because, in the current view, the matter in question may only be regulated by (State) Act.

Knowability

  1. This part of the plea is based on the fact that the Extradition Order provides for a regulation of extradition only to a limited extent. According to the author of the plea, the Supreme Court has partly managed to resolve this by declaring the Dutch Extradition Act to be applicable mutatis mutandis in a series of decisions on points where the Extradition Decree falls short. Thus, according to the author of the plea, the decision no longer satisfies the basic condition that it discloses the current law. According to the author of the plea, this is all the more pressing because this concerns a series of incidental decisions, the extent of which is not known. As a result, the citizen cannot foresee how the Extradition Order will be used by the judge and the Governor,
  2. In that context, I presume that it is settled case law of the Supreme Court that follows from the parliamentary history of the Kingdom Act on cassation cases in extradition cases for Aruba, Curaçao and Sint Maarten (until 2010 titled Cassation settlement in extradition cases for the Netherlands Antilles and Aruba). that the Kingdom legislator wanted to align as much as possible with the system of Dutch extradition law and, in particular, with the jurisprudence of the Supreme Court. 13 In this regard, reference can be made in particular to the memorandum in response to the report accompanying the draft Kingdom Act, which memorandum, insofar as relevant here, contains the following:

“In a qualitative sense, there may be an increase in the workload, especially in the first years after the introduction of the cassation scheme. This has to do with the fact that the Netherlands Antilles Extradition Decree only briefly regulates the extradition procedure in the first instance. This may mean that, where the Extradition Order is silent, the Supreme Court will have to formulate further rules, all in accordance with the basic principle of the present proposal that as far as possible be aligned with the system of the Dutch Extradition Act and the related regulations by the Supreme Court. Council developed case law.

In response to the question from the members of the VVD parliamentary party in which sense the present proposal, and in particular Article 2 concerning applicable procedural rules, is beneficial for the unity of law, the following should be noted. The unity of law within the Netherlands Antilles and Aruba is already sufficiently guaranteed under the current regulation because one and the same extradition court is competent with regard to the admissibility of extradition requested from the Antilles or Aruba, namely the Joint Court of Justice of the Netherlands Antilles and Aruba. . The present proposal therefore mainly concerns the unity of law within the Kingdom as a whole. The main objective is that with regard to the international law (cq treaty) obligations of the Kingdom the interpretation is the same within the three countries. This is guaranteed by the appointment of one and the same Supreme Court, namely the Supreme Court. An additional aim is – and reference is made to this in the explanation to Article 2 – that also when it comes to the applicable procedure, there is a large degree of legal unity between the Netherlands Antilles and Aruba on the one hand and the Netherlands on the other, which is why the starting point has been chosen that as much as possible is aligned with the system of the Dutch Extradition Act. After all, it is not desirable for substantial differences to exist between the countries with regard to the legal position of claimed persons in the Kingdom. An additional aim is – and reference is made to this in the explanation to Article 2 – that also when it comes to the applicable procedure, there is a large degree of legal unity between the Netherlands Antilles and Aruba on the one hand and the Netherlands on the other, which is why the starting point has been chosen that as much as possible is aligned with the system of the Dutch Extradition Act. After all, it is not desirable for substantial differences to exist between the countries with regard to the legal position of claimed persons in the Kingdom. An additional aim is – and reference is made to this in the explanation to Article 2 – that also when it comes to the applicable procedure, there is a large degree of legal unity between the Netherlands Antilles and Aruba on the one hand and the Netherlands on the other, which is why the starting point has been chosen that as much as possible is aligned with the system of the Dutch Extradition Act. After all, it is not desirable for substantial differences to exist between the countries with regard to the legal position of claimed persons in the Kingdom. This is the reason why the starting point has been chosen that as much as possible is aligned with the system of the Dutch Extradition Act. After all, it is not desirable for substantial differences to exist between the countries with regard to the legal position of claimed persons in the Kingdom. This is the reason why the starting point has been chosen that as much as possible is aligned with the system of the Dutch Extradition Act. After all, it is not desirable for substantial differences to exist between the countries with regard to the legal position of claimed persons in the Kingdom.

The members who are speaking are also right that where the Netherlands Antilles Extradition Decree has its own (albeit summary) regulation of the extradition procedure in the first instance, complete unity of law cannot be achieved on this point. However, the differences remaining – after the introduction of a cassation review by the Supreme Court – are not expected to be large.” 14

  1. In its conclusion prior to HR 21 March 2017, ECLI:NL:HR:2017:464, NJ2017/171 m.nt. Schalken, wrote my colleague Aben that it can now be concluded from the case law of the Supreme Court that the extradition procedure in Aruba, Curaçao and Sint Maarten must be aligned with the system of Dutch extradition law with regard to the assertion of innocence and the possibility of calling witnesses for the investigation thereof, the suspension of the investigation in court and the manner in which the investigation must be resumed after suspension, the assessment of the appeal on the special hardness of extradition for the requested person, the requirement that the final judgment is issued by the judge who cooperated in the interim decision on which the final judgment builds and the requirement of a sufficiently clear statement of the facts for which extradition may be granted.15 Added to this by the judgment of the Supreme Court of 21 March 2017, the order for the appointment of legal counsel by the President of the Court if the requested person has no legal counsel.
  2. It can be admitted to the author of the plea that these are incidental decisions of the Supreme Court. However, these decisions are a consequence of the legislative history and the case law of the Supreme Court that the Kingdom legislator wanted to link up as much as possible with the system of Dutch extradition law and, in particular, with the case law of the Supreme Court. In view of that case law, there can be no misunderstanding in my opinion that, insofar as the Extradition Decree does not contain its own regulation of the extradition procedure, the system of the Dutch Extradition Act and the case law of the Supreme Court on this matter should be as closely aligned as possible. Insofar as the Extradition Order does contain its own – deviating – regulation of the extradition procedure, the Extradition Order is of course leading. Against that background, I believe that, despite the summary arrangement of the extradition procedure in the Extradition Order, the extradition right is sufficiently known. The plea also fails to that extent.

Conclusion

  1. The plea fails in its entirety.

Second plea

  1. The plea complains that, contrary to what the Court has apparently assumed, there has been no lawful arrest or detention within the meaning of the provisions of art. 5(1)(f) ECHR and the Court of Appeal has wrongly taken the starting point that the existence of omissions associated with the (procedure for) the deprivation of liberty of the requested person does not mean that the Court cannot allow the requested extradition.
  2. In so far as it is relevant for the assessment of the plea, the contested opinion states the following:

“The counsel has requested attention for the unlawfulness of the arrest of the requested person, as well as for defects associated with the notifications as referred to in Article 12 of the Extradition Decree. These omissions stand in the way of the actual transfer of the claimed person to the United States, according to the counsel.

With regard to the deprivation of liberty of the requested person, it has been established that the provisions of the Extradition Order, in particular the provision of Article 12 of that Order, have not been strictly observed.

The Court first states that the basic principle is that the existence of omissions associated with the (procedure for) the deprivation of liberty of the requested person does not mean that the Court has to advise against not allowing the requested extradition. (1 ) The Court further finds that violation of those provisions in the Extradition Order is not threatened with a sanction related to the deprivation of liberty of persons whose extradition is requested, nor to the admissibility of the requested extradition.

The Court therefore rejects this part of the defence, in view of the foregoing, and also finds, moreover, that there has been no violation of a fundamental right of the person claimed.

(1) Supreme Court, June 27, 1978, NJ 1979, 71.”

  1. The ground for this plea is first of all that the starting point of the Court of Appeal, that the existence of omissions associated with the (procedure for) the deprivation of liberty of the requested person does not mean that the Court of Appeal does not allow the requested extradition is not to be found in the judgment to which the Court referred, so that the Court has made something a general rule that is not a general rule. Furthermore, the plea is based on the fact that the Court of Justice took as its starting point that violation of the provisions of the Extradition Order is not threatened with a sanction related to the deprivation of liberty of persons whose extradition is requested nor to the admissibility of the requested extradition, while that finding is not reasoning, because the Extradition Order lacks a great deal and it cannot be inferred from the absence of a certain rule that it does not apply. Finally, according to the author of the plea, the Court disregarded Art. 5, fifth paragraph, ECHR.
  2. The Court referred to the judgment of the Supreme Court of 27 June 1978. In that judgment, the Supreme Court considered the following, in so far as it is relevant for the assessment of the plea:

“O. regarding the first plea:

that this has been proposed in vain, since there is no legal support for the view apparently underlying the plea, according to which non-compliance with the provisions of art. 16, first paragraph, Extradition Act for the release, under the circumstances mentioned there, of a foreigner whose detention in accordance with art. 15 of that law, should lead to the application for extradition of the said alien being declared inadmissible”. 16

  1. It can be conceded to the author of the plea that this consideration relates exclusively to Art. 16, first paragraph, UW. However, it is settled case law of the Supreme Court that, as Glerum writes, irregularities in extradition detention do not entail the inadmissibility of extradition. 17 Thus, in its judgment of 28 June 1983, the Supreme Court held that the plea that failure to comply with the procedural requirements laid down by the Extradition Act with regard to the deprivation of liberty of the requested person did not affect the court’s admissibility of the extradition requested. 18Against that background, the Court of Appeal has in my view rightly taken the point of departure that the existence of omissions associated with the (procedure for) the deprivation of liberty of the requested person does not mean that the Court has to advise against not allowing the requested extradition. Such omissions do not affect the court’s admissibility of the requested extradition.
  2. Furthermore, the consideration of the Court of Appeal indicates that violation of regulations, with which the Court of Appeal apparently had in mind regulations relating to the (procedure for the) deprivation of liberty of the requested person, was not threatened in the Extradition Order with a sanction related to in my view, the admissibility of the extradition requested does not constitute an error of law, nor is that consideration incomprehensible. In doing so, I take into account that the Extradition Order does not mean that a violation of regulations relating to the (procedure for the) deprivation of liberty of the requested person entails the inadmissibility of extradition, while that finding also entails that, as above in the discussion of the the first plea was raised, connection must be sought with the system of the Extradition Act and the jurisprudence of the Supreme Court. The case law of the Supreme Court that irregularities in extradition detention entail the inadmissibility of extradition, is therefore also relevant for extradition from Aruba, Curaçao and Sint Maarten.
  3. The plea that the author of the plea makes on art. 5, fifth paragraph, ECHR does not affect the foregoing. This provision means that anyone who has been the victim of an arrest or detention contrary to the provisions of that article is entitled to compensation. However, the right to compensation does not include the right to termination of the deprivation of liberty, according to the European Commission of Human Rights in the case of Bozano v France:

“The Commission considers that the right to compensation referred to in Article 5 para. 5 may be of broader scope than mere financial compensation . It cannot, however, refer to a right to secure termination of deprivation of liberty, since that right is secured in Article 5 para. 4 of the Convention.” 19

  1. Art. Article 5(4) of the ECHR provides that anyone who has been deprived of his liberty by arrest or detention has the right to request a remedy from the court that it may decide promptly on the lawfulness of his detention and orders his release if the detention is unlawful. is. This is provided. The fact that irregularities in extradition detention do not entail the inadmissibility of extradition does not mean that a requested person who believes that his extradition detention is unlawful has no opportunity to challenge that unlawful deprivation of liberty. After all, he can base that unlawful deprivation of liberty on a request for release. 20It is also apparent from the documents before the Court that that option was exercised in this case. It is apparent from an order of the Court, which is annexed to the documents in the proceedings, and issued in response to the request for the lifting or suspension of the provisional detention for the purpose of extradition of the requested person, namely that a request was made for the lifting of the detention on the ground that the arrest of the requested person was unlawful because the arrest was not in accordance with the procedure prescribed in the Extradition Order.
  2. The plea fails.

Third remedy

  1. The plea alleges that the Court disregarded the fact that the requested person was being prosecuted, or at least arrested, in respect of one or more of the offenses for which his extradition was requested.
  2. The ground for this plea is that it was argued on behalf of the requested person that she was arrested on 19 August 2021 by order of a public prosecutor on suspicion of having acted in violation of the Opium National Ordinance, which means that a (national) criminal investigation carried out by the public prosecutor in Curaçao had started, and that the deprivation of liberty was not transferred to extradition detention until later. According to the author of the plea, the Court apparently overlooked the fact that it had thus drawn the attention of the requested person to the fact that in addition to the prosecution in the United States, for which extradition was requested, a prosecution had also started in Curaçao for the same offenses as for which the extradition was requested.
  3. I can be brief about this complaint. The plea in fact fails to recognize that the decision whether the extradition of the requested person should be refused on the ground that criminal proceedings are underway in respect of facts that are also included in the request for extradition, and is reserved for the Governor. 21 It is therefore not for the Court to decide whether the extradition of the requested person should be refused on the ground that criminal proceedings are underway in Curaçao in respect of facts that are also involved in the extradition request.
  4. The plea fails.

Conclusion

  1. The means fail. In any case, the first and third pleas can be dismissed with the reference to art. 81, first paragraph, RO derived justification.
  2. I have not found ex officio any ground which should give rise to the annulment of the contested decision.
  3. That conclusion seeks to dismiss the action.

The Attorney General

at the Supreme Court of the Netherlands

AG
1For general measures taken by central government, see A. van Rijn, Handbook Caribbean Constitutional Law , The Hague: Boom Juridisch 2019, p. 168-171, and T. Borman, The Charter for the Kingdom , Deventer: Kluwer 2012, p. 129-133.

2HR 7 November 2003, ECLI:NL:PHR:2003:AI0355, NJ 2004/99 m.nt. Merchant.

3The decree was published by decree of 9 October 1981 promulgating the General Administrative Order of 21 August 1981, no. 80 amending the Curaçao Extradition Decree 1926, Official Journal of the Netherlands Antilles 1981, no. 293.

4With omission of a footnote.

5Explanation of the decision of 21 August 1981, as reproduced in J. Remmelink, Uitlevering , Arnhem: Gouda Quint 1990, p. 318-319. I have not come across a publication of this explanation in public sources.

6Stb . 1995, 706. The explanatory memorandum to this decree states that on 17 July 1995 the Minister of Justice set up a mixed official working group with the task of advising the Council of Ministers of the Kingdom on the way in which the Netherlands Antilles Extradition decision to be reviewed. On the findings of this working group, see the conclusion of my colleague Aben, ECLI:NL:PHR:2017:153, under 23, with reference to Parliamentary Papers II 2001/02, 27797 (R 1686), no. 5, p. 2.

7Advice of the Council of State of the Kingdom of 11 September 1995, no. W03.95.0417/K.

8Conclusion AG Langemeijer, ECLI:NL:PHR:2003:AI0355, under 2.8, with reference to Parliamentary Papers II 2001/02, 27570 (R1672), no. 4 and 5.

9Handelingen II 2015/16, nr. 95, item 14, p. 1, en Handelingen I 2015/16, nr. 37, item 8, p. 1.

10Kamerstukken I 2015/16, 27570 (R1672), B.

11Kamerstukken II 2016/17, 27570 (R1672), nr. 23.

12Bij Landsverordening, van de twintigste augustus 2019 tot aanvaarding van het voorstel van rijkswet van het lid Van Laar tot wijziging van de artikelen 14 en 38 van het Statuut voor het Koninkrijk der Nederlanden (beperken van de mogelijkheid een algemene maatregel van rijksbestuur uit te vaardigen zonder wettelijke grondslag daartoe), Afkondigingsblad van Sint Maarten 2019, no. 31, respectievelijk bij Landsverordening van de 7de december 2020 houdende aanvaarding door Curaçao van het door de Staten-Generaal op 5 juli 2016 aangenomen voorstel van rijkswet van het lid van Laar tot wijziging van de artikelen 14 en 38 van het Statuut voor het Koninkrijk der Nederlanden (beperken van de mogelijkheid een algemene maatregel van rijksbestuur uit te vaardigen zonder wettelijke grondslag daartoe), Publicatieblad 2020, no. 140.

13HR 25 oktober 2005, ECLI:NL:HR:2005:AU2698, rov. 3.3.2, HR 15 november 2005, ECLI:NL:HR:2005:AU3943, rov. 4.6, HR 9 december 2008, ECLI:NL:HR:2008:BG4204, rov. 3.5, HR 4 oktober 2016, ECLI:NL:HR:2016:2248, rov. 4.3, en HR 21 maart 2017, ECLI:NL:HR:2017:464, NJ 2017/171 m.nt. Schalken, rov. 3.5.

14Kamerstukken II 2001/02, 27797 (R 1686), nr. 5, p. 3-4.

15Conclusie A-G Aben, ECLI:NL:PHR:2017:153, onder 27.

16HR 27 juni 1978, ECLI:NL:HR:1978:AC6316, NJ 1979/71.

17Glerum, in: Handboek strafzaken 91.2 (online, bijgewerkt 18 augustus 2010).

18HR 28 juni 1983, DD 83.479, rov. 4. Zie ook HR 31 augustus 1983, ECLI:NL:HR:1983:AC8092, NJ 1985/88 m.nt. Van Veen, rov. 4.2, HR 17 januari 1984, DD 84.248, rov. 4, HR 23 december 1986, DD 87.248, rov. 6, HR 24 september 1991, DD 92.026, rov. 6, en HR 17 december 1991, ECLI:NL:HR:1991:AD1560, NJ 1992/344, rov. 6.

19Europese Commissie voor de Rechten van de Mens (Bozano/Frankrijk), p. 144.

20Vgl. Glerum, in: Handboek strafzaken 91.2 (online, bijgewerkt 18 augustus 2010).

21HR 9 december 2008, ECLI:

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