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. 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 tight up to a pole. Plaintiff seeks a declaratory judgment that the Dutch State acted wrongful towards him through the Dutch militaries torturing him during his imprisonment, and that 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 liability for damages suffered by plaintiff if he has indeed been tortured by Dutch militaries and thus case focusses on the questions:

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• Did the alleged torture of plaintiff by Dutch militaries in 1947, during his alleged imprisonment occur, and if so
• Has this alleged torture caused plaintiff suffering 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 addresses the Dutch State’s defence that plaintiff’s claim has exceeded the limitation period defined in Dutch civil law. Having determined that in the given circumstances, applying a limitation period would contravene the principle of good faith, enshrined in Dutch law (para. 4.5), the Court explains that all the actual circumstances of the case must be taken into account when assessing whether applying the legal limitation period would contravene the principle good faith. In the context of this case, the following arguments are considered of relevance:

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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 Militaries in the former Dutch East Indies colony, whereas the similar cases before this Court on misconduct of Dutch troops in these 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 militaries from which he could not withdraw himself. Moreover, 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 the alleged torture, in a more broader sense however, it was aware of the serious misconduct of detained persons by Dutch militaries in 1946-1949, comparable to the alleged torture (para. 4.11);
• Analogue to the Rawagedeh case, the Court considers that 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 it would be unreasonable to require plaintiff to hold 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 for a Dutch Court within limitation periods enshrined in former Dutch law (Dutch “Verjaringswet 1924” and Article 2004 former Dutch Civil Act);
• Analogue to the Rawagedeh case, the claim stems from a dark chapter in Dutch history that has not been closed yet.

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Based on these arguments, the Court determines that the reasonable period of time to hold the Dutch State liable starts from the moment plaintiff was informed of the possibility to hold the Dutch State liable and accepts plaintiffs substantiated statement that this moment was in 2014 while additionally takes into account his advanced age and the fact that he lives in a remote area with no access to media, computers and on-line information (paras. 4.16, 4.17).

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

Dutch civil law puts the burden of proof on plaintiff. To substantiate his claim, plaintiff puts forward written statements of himself and of his brother and points at literature relating to the misconduct of detainees by Dutch militaries 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 solve this issue, the Court orders the Dutch State to further clarify the disputed evidence and in particular 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.)

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This is the first time, a Dutch court is adjudicating a wrongful act claim against the Netherlands based on torture by Dutch Militaries in the former Dutch East Indies colony. Dutch Courts have ruled similar wrongful acts cases against the Dutch State, however, these cases were based on summary executions by Dutch Militaries in the former Dutch East Indies colony.

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Epilogue

As appears from the Court’s second interlocutory Judgment of 27 July 2016, the Dutch State has 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”) are consulted, in particular regarding the registration of detainees of the alleged (prison) locations. And although the outcome shows that the prison locations have existed, the Dutch State purports that there is no indication that plaintiff has been detained at these locations, let alone has been tortured there. Following this, the Court decides that plaintiff must bring in additional evidence, and if so desired, call for witnesses. In response, plaintiff indicates that he wishes that his sister and he will be heard as witnesses and 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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For more information on this topic we suggest reading our report ‘The Impacts of Litigation in relation to Systematic and Large-Scale Atrocities committed by the Dutch Military Forces in the ‘Dutch East Indies’ between 1945-1949’.

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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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