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Archives 2: the legal case over the property of the embassy of Democratic Republic of the Congo in The Hague (All the links and PDF are in Dutch)
HAGUE COURT, Civil law sector - preliminary relief judge
case / role number: 393722 / KG ZA 11-517
Judgment in summary proceedings of 5 July 2011
The case appealed by
“[Z.], residing in [A.] (Lebanon), lawyer mr. PJM von Schmidt auf Altenstadt in The Hague” against: “1. the Democratic Republic of the Congo, based in Gombe (Democratic Republic of the Congo), and 2. the State of the Netherlands, (Ministry of Security and Justice)” lawyer mr. JML van Duin in The Hague.
Bailiff's Brief. The parties are disputing whether Ahmad may proceed to recover his claim as established in the judgments of 3 November 2010 and 15 December 2010 of this court on the premises. In the opinion of the Court in preliminary relief proceedings, the execution of the aforementioned judgments is not unlawful.
Short summary of the case (Note that the below is not an official interpretation)
The background:
In 2000, 3. Feb [Z.] obtained a guilty verdict against the state of the Congo by a court in the Democratic Republic of the Congo. This judgement was considered as final decision.
In 2009, 24. Aug, The Hague court sent a seizure notice to the sate of the Congo according to the decision made in 2000. The seized property was the Congolese embassy property in the Hague.
In 2010, with the the judgments established on 3 November 2010 and 15 December 2010 by The Hague court, the state of the Congo was ordered to pay (among other things) a sum of money to [Z.]. The amount was 23,348,734.56 USD and additional interest € 1,893.76 per day. from the period 1 July 2010 until the day of full payment. However, the Dutch Ministry of Foreign Affairs has refused to forward the latter to the state of the Congo, as it was considered as a violation of the State's obligations under international law.
At this dispute in 2011, The parties discussed whether [Z.] can proceed to execute the seizer of the property of the Congo - the embassy building.
Argument Points
[Z.]/Ahmad argues that the property cannot be classified as an asset intended for public service, as the authority of the Congo has reported the closure of the embassy on 14th January 2009. Thus no rule of international law and/or Dutch law should be applied. [Z.] claims that squatters have moved in the property and local residents were invited by the squatters for an open day. The squatters have been building an art incubator space, which evident that the property no longer functions as a diplomatic building. Thus [Z.] thinks that he can take it as to return the debt of the state of the Congo.
Although the Congolese embassy located in the Hague has been closed, the state of the Congo has the explicit intention to use the building by Congolese delegations, thus to carry out diplomatic activities in the Netherlands. The state of the Congo has not de-registered the property with the Cabinet and Protocol Directorate of the Ministry of Foreign Affairs. The Congo wishes to maintain access to its embassy archives located in the premises.
Regarding the usage for future diplomatic activities: The preliminary relief judge considers that the term 'used' in paragraph 1 in the articles 22 of the Vienna Convention, does not apply to this case and does not extend to a building that is no longer used for diplomatic purposes, because the Congolese diplomatic mission has been relocated to Brussels since 2009.
Regarding the embassy archives: The Dutch Ministry of Foreign Affairs declared to the judge in preliminary relief proceedings the following: the state of the Congo has said that there are archives in the building and that a Congolese delegation has talked with the squatters in order to reach an amicable settlement, but it didn’t succeed. The Dutch Ministry of Foreign Affairs also declared that the squatters have said that the archives are in moving boxes in the basement of the building. However the lawyer of [Z.] stated at the hearing that, the squatters told that there was nothing left in the building that belongs to the the Congo.
The judge in preliminary relief proceedings doesn’t believe that an embassy does not take its archives with it, when moving. Therefore, the claim of moving boxes in the basement of the building has not been sufficiently plausible what their contents are.
The decision:
The judgments of 3 November 2010 and 15 December 2010 of this court, between [Z.] and the Democratic Republic of the Congo, on the premises of the embassy is not unlawful. [Z] can execute the seizure.
Supreme Court
Date of judgment
28-06-2013
Date of publication
04-07-2013
Case number
12/02548
Formal relationships
In cassation on : ECLI:NL:GHSGR:2012:710, Ratification/confirmation
Conclusion: ECLI:NL:PHR:2013:BZ7195, Followed
Content Indication
Law of nations. Immunity from execution. Executory attachment of premises of diplomatic service. Vienna convention on diplomatic relations, art. 22. Customary international law. Premises that have lost public purpose?
Short summary of the decision (Please note that the below is not an official interpretation)
Supreme Court has decided that the property of the embassy building has never lost its public purpose therefore it cannot be subject to seizure and foreclosure. The reasons are the followings: 1) Until mid of 2009, the Democratic Republic of the Congo had planned for or used it as a diplomatic missions in the Netherlands. Even after the closure, the Congo informed to the sate of the Netherlands that it still intends to use as a diplomatic purpose or it plans to use it for exercising of its governmental duties.
Although the Hague court’s decision seemed to be established whether the archive is still present in the building or not, the Supreme Court’s decision is not based on the possible presence of some archival materials. Because the earlier arguments lacks factual basis, this cannot lead to a ruling causation.
As to conclude, as long as the state has its plan to use the property as diplomatic or governmental purpose in the future, the property enjoys the diplomatic immunity, thus cannot be the subject of the seizure.
ECLI:NL:PHR:2013:BZ7195 (This is additional explanation for the decision made at ECLI:NL:HR:2013:45)
Conclusion
12/02548
Mr. P. Vlas
Session, 5 April 2013
[claimant], living in [place of residence] (Lebanon) (hereinafter: [claimant])
against
The State of the Netherlands, Ministry of Security and Justice (hereinafter: the State)
This case concerns the question whether a foreign state enjoys immunity from execution under the Vienna Convention on Diplomatic Relations of 18 April 1961 (hereinafter: WVDV)(1) or under unwritten international law. Can that state invoke immunity from execution in respect of a seizure that has been made on premises in the Netherlands that are used by this state for diplomatic purposes but are currently empty?
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