Uitspraak 200903769/1

200903769/1/H3.
Date of judgment: 3 March 2010

Dutch version

ADMINISTRATIVE JURISDICTION DIVISION

Judgment in the appeal proceedings lodged by:

[appellants], residing in [residence] (Bosnia Herzegovina),
appellants,

against the judgment of Amsterdam district court of 15 April 2009 in case no. 07/1477 in the action between:

[appellants]

and

the Minister of Defence

1. Procesverloop

By decision of 6 October 2006 the Minister of Defence (‘the Minister’) denied the application submitted by [appellants] requesting the disclosure of documents concerning the United Nations (‘the UN’) Protection Force in the former Yugoslavia.

By decision of 20 February 2007, the Minister declared the objection lodged by [appellants] against his decision unfounded.

By judgment of 15 April 2009, sent on the same date, Amsterdam district court (‘the district court’) declared [appellants]’s application for review of the aforementioned decision well founded, set aside the decision but ruled that the legal consequences would remain in effect. That judgment is appended to the present judgment.

[appellants] lodged an appeal against the judgment of 15 April 2009 in a letter received by the Council of State on 25 May 2009. The grounds of appeal were supplemented in a letter dated 6 July 2009.

By letter of 14 July 2009 [appellants] gave their consent as referred to in section 8:29, subsection 5 of the General Administrative Law Act (AWB).

The Minister filed a defence to the appeal.

[appellants] submitted further documents, which were sent to the other party.

The Division heard the case on 14 December 2009 at a sitting at which the following parties appeared: [appellants], represented by M.R. Gerritsen, J.A. Tempelman and S.A. van der Sluijs, attorneys in Amsterdam, and the Minister, represented by E.J. Daalder, attorney in The Hague, and by H.J.M.R. van den Ende de Boer, a civil servant in the employ of the Ministry.

Considerations
The Division holds ex proprio motu that pursuant to section 8:7, subsection 2 of the AWB, the district court in the seat of the relevant administrative authority (in this case the Minister) is competent when persons lodging an application for judicial review of a decision given by that administrative authority are not resident in the Netherlands. Because [appellants] do not live in the Netherlands, The Hague district court had jurisdictional competence to hear their application for judicial review. However, [appellants] filed their application with Amsterdam district court.

By letters of 8 and 9 April 2008, respectively, the Minister and [appellants] consented when asked to have the application heard by Amsterdam district court. The Division considers this sufficient reason to declare that court competent pursuant to section 46 of the Council of State Act and to consider the contested judgment duly given.

In accordance with article 103 of the Charter of the United Nations (‘the UN Charter’), the obligations of the Members of the United Nations under the UN Charter prevail in the event of a conflict between those obligations and their obligations under other international agreements.

In accordance with article 105, paragraph 1, the UN enjoys in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

In accordance with article 105, paragraph 3, the General Assembly may make recommendations with a view to determining the details of the application of paragraph 1 of article 105 or may propose conventions to the Members of the United Nations for this purpose.

In accordance with article II, section 4 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 (‘UN Convention on Privileges and Immunities’) the archives of the UN, and in general all documents belonging to it or held by it, are inviolable wherever they are located.

In article VIII, section 29, opening words and (a), the UN undertakes to make provisions for appropriate modes of settlement of disputes arising from contracts or other disputes of a private law character to which the UN is a party.

In accordance with article 6, paragraph 1, first sentence of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), in the determination of their civil rights and obligations or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Section 1, opening words and (a) of the Government Information (Public Access) Act (WOB) defines the word ‘document’, for the purposes of the Act and the provisions deriving from it, as a written document or other material containing data which is deposited with an administrative authority.

In accordance with section 3, subsection 1 of the WOB, anyone may apply to an administrative authority or to an agency, service or company carrying out work for which it is accountable to an administrative authority for information contained in documents concerning an administrative matter.

In accordance with subsection 5, applications for information are granted with due regard for the provisions of sections 10 and 11.

The district court ruled that the Minister was wrong to base his refusal to grant [appellants]’s application for disclosure of the documents on the WOB, because the WOB does not apply to UN documents. For this reason, the district court declared the application for judicial review of the decision of 20 February 2007 well founded and set aside that decision. The court upheld the legal consequences of the decision because article II, section 4 of the UN Convention on Privileges and Immunities prevented the Minister from granting the application for information. In its considerations, the district court cited the Division’s judgment of 25 March 2009 in case no. 200704392/1 (www.raadvanstate.nl).

[appellants] contend that the district court failed to recognise that the requested documents are not, or at any rate are no longer exclusively, UN documents, given that they are in the possession of the Dutch government, and consequently subject to the WOB. [appellants] also claim that the district court applied the UN Convention on Privileges and Immunities incorrectly. In support of that claim, they suggest that article II, section 4 of the UN Convention on Privileges and Immunities should be interpreted on the basis of article 105, paragraph 1 of the UN Charter, from which it follows that the inviolability of UN documents is not absolute but is limited by functional necessity. Given that, the district court should have determined whether the UN would be hindered in the pursuit of its objectives were the requested documents to be disclosed. If UN documents were absolutely inviolable, there would be no effective legal protection against the UN, which would contravene the right to a fair trial laid down in article 6, paragraph 1 of the ECHR. [appellants] contend that this is particularly crucial because the UN has failed to make provision for an appropriate mode of settlement in accordance with article VIII, section 29, opening words and (a) of the UN Convention on Privileges and Immunities.

According to [appellants], the judgment delivered by the Tribunal de Première Instance de Bruxelles on 11 May 1966 in Manderlier v. the United Nations (Journal des Tribunaux 1966, p. 721ff; ‘Manderlier’) confirms that the privileges and immunities of the UN may not be accepted unreservedly but must be subject to review. They also note that the Court of Justice of the European Communities (ECJ) in its order of 13 July 1990, C 2/88 Imm., Zwartveld and Others (www.eur lex.europa.eu), considered that the privileges and immunities of the European Communities are purely functional in that they are intended to prevent interference with the functioning and independence of the Communities, and that the ECJ in its judgment of 3 September 2008 in joined cases C 402/05 P and C 415/05 P, Kadi and Al Barakaat v. Council and Commission (www.curia.europa.eu), reviewed a regulation of the Council of the European Union and annulled it, despite the fact that the regulation gives effect to obligations under the UN Charter.

[appellants] submitted an application for disclosure of the ‘Rules of Engagement’, ‘Standing Operating Procedures’ and ‘Force Commander Directives’ of the United Nations Protection Force in the former Yugoslavia (‘UNPROFOR’). With the consent of [appellants] pursuant to section 8:29, subsection 5 of the AWB, the Division took note of these documents and determined that they are classified as confidential by the UN. Furthermore, a request for disclosure of these documents submitted by [appellants] and addressed to the UN Assistant Secretary-General for Legal Affairs was also refused for reasons of confidentiality in a letter dated 30 November 2006.

In the judgment cited by the district court regarding an application for disclosure of, inter alia, UN documents, the Division held as follows:

Under article II, [section 4] of the UN Convention on Privileges and Immunities (…) all documents belonging to UN bodies are ‘inviolable’. Contrary to the claim [of the second appellant], these provisions do in fact apply to the documents concerned, because they are documents that belong to the UN (…) but are located elsewhere. The documents therefore fall under the [aforementioned Convention]. Pursuant to [that Convention] the documents are ‘inviolable’, and consequently are not subject to national freedom of information legislation. The WOB therefore does not apply to these documents.

(…) The Division sees reason to direct that the legal consequences of the part of the decision that was quashed be allowed to stand, in accordance with section 8:72, subsection 3 of the AWB, because the UN Convention on Privileges and Immunities prohibits the Minister from granting the application for disclosure of the UN documents.

As explained below, the Division sees no reason, on the basis of [appellants]’s assertions, to rule differently in the present case.

The documents requested by [appellants] belong to the UN and are therefore documents within the meaning of article II, section 4 of the UN Convention on Privileges and Immunities. The fact that the Minister also has possession of the documents does not mean that this provision does not apply to them, as it states that UN documents are inviolable wherever they may be located.

Given that the Members of the UN have declared UN documents inviolable – without reservation – in article II, section 4 of the UN Convention on Privileges and Immunities, the UN has sole authority to determine whether and, if so, to what extent its documents are made public. Consequently, national freedom of information legislation (like the WOB in the Netherlands) which prescribes that a national administrative authority assess whether there are reasons why a document should not be made public may not be applied to UN documents. Therefore, the assessment criteria in sections 10 and 11 of the WOB for deciding on applications for information do not apply to UN documents. Although under section 3 of the WOB a Dutch administrative authority that has UN documents in its possession is authorised to decide whether or not to disclose them, if the UN holds that the documents may not be made public the administrative authority must respect that decision.

According to the letter of 30 November 2006 and the UN’s own classification of the documents as confidential, which is made explicit in the documents themselves, they must be considered confidential and, as such, not intended for disclosure to the public. The UN has given the Minister no latitude to grant applications for disclosure of these documents.

According to its preamble, article II, section 4 of the UN Convention on Privileges and Immunities elaborates on article 105, paragraph 1 of the UN Charter, which provides that the UN enjoys in the territory of each of its members such privileges and immunities as are necessary for the fulfilment of its purposes. This does not imply that a national court should evaluate, in a specific case, whether the UN’s classification of a document as confidential is necessary for the fulfilment of the organisation’s purposes. The UN General Assembly, in accordance with article 105, paragraph 3 of the UN Charter, adopted the UN Convention on Privileges and Immunities and a large majority of UN Members have acceded to it. In doing so, they elected to declare UN documents inviolable, without reservation, in article II, section 4. The Members of the UN clearly decided it was necessary to include unconditional inviolability to ensure that the UN would be able to fulfil its purposes and only the Members may limit or lift that inviolability. It is not within the purview of a national court to concern itself with a decision made by the Members of the UN. The fact that the UN has not implemented article VIII, section 29, opening words and (a) of the UN Convention on Privileges and Immunities has no bearing on that. The validity of the privileges and immunities laid down in the Convention does not depend on the UN’s compliance with obligations ensuing from that Convention, such as the obligation to make provision for modes of settling disputes stipulated in article VIII, section 29, opening words and (a). Furthermore, that provision applies only to proceedings relating to private law disputes and not to disputes of a public law nature, such as the present case.

The Manderlier judgment at first instance gives no reason to conclude otherwise. In its judgment the court of first instance in Brussels dismissed the plaintiff’s civil claim against the UN because the UN invoked its immunity from every form of legal process pursuant to article II, section 2 of the UN Convention on Privileges and Immunities. In its judgment of 15 September 1969 (Revue critique de jurisprudence belge 1971, p. 449ff) the Cour d'Appel de Bruxelles upheld the court of first instance’s judgment. In its judgment, the appeal court held that by acceding to the UN Convention on Privileges and Immunities, the parties to the UN Charter have established the necessary privileges and immunities and that the courts would be exceeding their authority were they to assume the right to evaluate the necessity of the immunities vested in the UN by that convention:

Attendu qu'en adhérant à la convention du 13 février 1946 les signataires de la charte ont déterminé les privilèges et immunités nécessaires; que les tribunaux commettraient un excès de pouvoir s'ils s'arrogeaient le droit d'apprécier le caractère de nécessité des immunités accordées à l'Organisation des Nations Unies par ladite convention;

The Zwartveld order gives no reason to draw a different conclusion. In that order, the ECJ considered itself competent to investigate, at the request of a Dutch court, whether the European Commission’s invocation of the privileges and immunities of the European Communities laid down in the Protocol on the Privileges and Immunities of the European Communities (‘EC Protocol’) was justified by the need to avoid any interference with the functioning and independence of the Communities. That the ECJ is competent to render an opinion on the EC Protocol in such proceedings does not mean that the national court is competent to render an opinion on the same matter. Besides, in the present case it is not the EC Protocol but rather the UN Convention on Privileges and Immunities that is at issue. The Administrative Jurisdiction Division’s status vis-à-vis the UN Convention on Privileges and Immunities is not the same as the ECJ’s status relative to the EC Protocol. Consequently, the ECJ’s considerations in the Zwartveld order cannot be applied by analogy to the present case.

The argument that article 6, paragraph 1 of the ECHR requires that effective legal protection against the UN be provided and that the UN’s decision not to disclose the requested documents should be subjected to scrutiny to determine whether it is justified must be rejected. Under section 3 of the WOB, the Minister is competent to decide on the application for disclosure of documents submitted by [appellants] The right of application enshrined in that provision is intended solely to serve the public interest in a proper and democratic public administration, an interest that is a basic presumption of the WOB. The right to submit an application applies to all persons in equal measure and the competent administrative authority may not distinguish on the basis of the person or aim of the individual requesting the information. Consequently, the decision concerning the application for disclosure of documents submitted by [appellants] does not constitute a determination of civil rights and obligations within the meaning of article 6, paragraph 1 of the ECHR. Since that provision of the ECHR applies only to the determination of civil rights and obligations or of a criminal charge, it is irrelevant to the present case. The Hague district court ruled differently on this matter in its judgment of 10 July 2008 in case no. 07/2973 (LJN: BD6795), which is however not relevant to the present case. Appeal against that judgment is currently pending before The Hague court of appeal. The judgment concerns a civil action brought by the ‘Mothers of Srebrenica’ citizens’ association and others against the UN and the State of the Netherlands.

With respect to [appellants]’s comparison with the Kadi judgment, the ECJ rendered an opinion on a regulation aimed at implementing a UN Security Council resolution adopted under chapter VII of the UN Charter. The ECJ reviewed this Community act in the light of the fundamental rights which, according to the ECJ’s settled case law, form an integral part of the general principles of law compliance with which the ECJ oversees. In fulfilling that task, the ECJ is guided by the common constitutional traditions of the member states as well as the international human rights instruments which the member states have acceded to or even helped to draft. The ECHR has special significance in this respect (see paragraph 283 of the Kadi judgment). Given that [appellants] incorrectly assert that their right to a fair and public hearing under article 6, paragraph 1 of the ECHR has been violated, this situation is not comparable to Kadi and their invocation of that judgment should therefore be dismissed. The Division would add that the decision of the Minister which was contested before the district court ensues directly from article II, section 4 of the UN Convention on Privileges and Immunities, while the ECJ referred, in paragraph 298 of the Kadi judgment, to the fact that the Members of the UN have free choice among the various possible models for transposition of resolutions adopted under Chapter VII of the UN Charter into their domestic legal order. The ECJ did not consider itself competent to review the lawfulness of such a resolution (see paragraph 287).

In view of the above, the district court was correct to decide that under article II, section 4 of the UN Convention on Privileges and Immunities the Minister could not grant the application submitted by [appellants] for the disclosure of UN documents. The argument is untenable.

The appeal is unfounded. The contested judgment is upheld.

There are no grounds for ordering the payment of costs in the action.

3. Decision

The Administrative Jurisdiction Division of the Council of State

giving judgment in the name of the Queen:

upholds the contested judgment.

Done by J.E.M. Polak, president, and C.H.M. van Altena and K.J.M. Mortelmans, members, in the presence of J. de Vries, Officer of the Council of State.

J.E.M. Polak J. de Vries
President Officer of the Council of State
[signed] [signed]

Pronounced in open court on 3 March 2010

582.