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Cover Page The handle http://hdl.handle.net/1887/40130 holds various files of this Leiden University dissertation Author: Meiboom, W.E. Title: Bijzonder bestraft : context, analyse en waardering van de bijzondere rechtspraak door de Kamer Groningen van het Bijzonder Gerechtshof Leeuwarden en van cassaties in Groningse zaken Issue Date: 2016-06-08 SUMMARY BIJZONDER BESTRAFT -SENTENCED UNDER SPECIAL JURISDICTION1412 This study contains an in-depth description of the context, analysis and assessment of the special jurisdiction of the Groningen Chamber of the Special Court of Leeuwarden, its succeeding special criminal Chamber of the district court of Groningen and the cassation proceedings of Groningen cases in the period 1945 through 1951. The structure of this study is as follows: - Introduction: Research questions and structure - Section 1: Context - Section 2: Description and analysis of judgments by the Groningen Chamber and the cassation of Groningen case by the Special Court of Cassation - Section 3: Assessment of the judgments by the Groningen Chamber and the cassation of Groningen cases by the Special Court of Cassation - Conclusion - Annexes Introduction On 16 August 1944 Minister J.A.W. Burger officially announced on Radio Oranje1413 that so called ‘Decree-Acts’ or Decrees had been drafted in London for a special system of jurisdiction which had been enacted by the Dutch government in London in December 1943.1414 He announced that the new special jurisdiction would be 'Swift, severe and righteous'.1415 There were no explanatory memoranda or other documents to explain how these objectives should be interpreted or translated into practical details. But statements made by the Dutch Ministers in London made it possible to give a practical meaning to these words. The special jurisdiction made it possible after the liberation of the Netherlands to prosecute people who had committed war-related crimes during the war and international war crimes. The Courts for the Special criminal justice were no part of the common judicial power. The Chambers of the Special Courts1416 judged at first instance and the Special Court of Cassation was both appeal and cassation instance. In September 1944, the Tribunal Decree was issued and announced. This Decree was constituted to enable the punishment of collaborators with the German occupier. The 19 Tribunals had in total 120 Chambers. In the Chambers of the Tribunals lawyers as well as civilians could be appointed. The leading perspective to study this special system of jurisdiction is the legal perspective. This study is based on research of all cases conducted before one Chamber of one Special Court: The Groningen Chamber of the Special Court of Leeuwarden, and the cassation before the Special Court of Cassation1417. This means that purge, the restoration of civil rights and the sentencing of collaboration are not included. The questions addressed in this study are: 1. To what extent this special jurisdiction managed to realize the objectives 'swift, severe and righteous'? 2. Can the special jurisdiction be valued as a fair and equitable form of criminal justice based on the legal principles of criminal law? 1418 1412 The translation of the names of the Dutch organs in the special jurisdiction after WWII is based on the thesis by H.L. Mason, 1952. 1413 The radio program of the Dutch government-in-exile that was broadcast to the occupied Netherlands during World War II. 1414 The absence of a Dutch Parliament in London made it impossible for the Dutch government to enact laws. Using subjective emergency powers legislation as a basis, the decision was taken to issue Decree Act. For a more detailed explanation of this subject, see 2.1.4. 1415 Burger Archive, No. 18: Radio speech of Minister J. Burger at Radio Oranje on 16 August 1944. 1416 In Dutch: Kamers van Bijzondere Gerechtshoven. 1417 In Dutch: Bijzondere Raad van Cassatie. 1418 The underlying question is: which legal principles were applicable at the time the special jurisdiction was established. To answer this question, three points of reference stand out. Firstly, the codification article in the Dutch Constitution 1938/1948 can be studied to 309 To make an analysis of the session files, it was essential to trace all files. To trace all session files, of cases tried by the Groningen Chamber and of Groningen cases tried in cassation, proved to be complicated. But after long searches, almost all the files were retrieved. From the few files that could not be traced, information about the suspicions and the verdict were found through other sources. Furthermore, it became apparent that a number of cases were not tried by the Groningen Chamber but forwarded to other Chambers of Special Courts, the Public Prosecution Service or the Groningen Tribunal. A great number of studies have been published on special jurisdiction. None of these studies, however, were based on the session files of all cases tried by one Chamber. This sets this study apart from earlier published studies. The most important scientific literature on special jurisdiction is described in Section 1.8 and discussed in Section 12.2 as part of the Conclusion. Section 1: Context Soon after starting this study I realized that it would be impossible to make a thorough analysis of special jurisdiction in individual cases without an accompanying overview of, and insight into, the context of the special jurisdiction. This context including the preparation, composition and amendments of decrees on special jurisdiction, a description of all the actors in special jurisdiction as well as the case-law and publications in the period 1945-1952, as well as the criticism of special jurisdiction. The Decrees on special jurisdiction On 13 May 1940 after the invasion of the Netherlands by Nazi Germany, the Dutch government fled to London. Immediately upon their arrival in London it became clear to the Dutch government in exile that they would have to enact statutory provisions. Contrary to surrounding countries, however, the Netherlands had no statutory form of state emergency law. Although a State Emergency Act was drafted in 1939 it was never ratified by Parliament. The Dutch government in exile decided that statutory provisions would be enacted using subjective, unwritten state emergency law. These were called Decrees. The first Decrees under the subjective State Emergency Law were enacted only two weeks after the Dutch government arrived in London. These Decrees were enacted to prevent the confiscation by Nazi Germany of Dutch property located outside the Netherlands. In 1941 it became clear for the Dutch government in London, based on information received from 'Engelandvaarders'1419 and reports sent from the occupied Netherlands, that many crimes were being committed by the German occupiers and their Dutch sympathizers. In order to be able to punish offenders after the war, Decrees for special jurisdiction – the Decrees D61-64 - were drafted in 1942- 1943. The draft versions of these Decrees were submitted to various advisory bodies for the government in exile set up in London, the most important one being the Special Advisory Council. The only advice that was followed was the advice not to sentence members of the NSB and collaborators through special jurisdiction. The government decided to enact a new form of trial: The Tribunal measures. For this purpose, the Tribunal Decree was issued in September 1944. In the Decree on Special Criminal Law, Decree D61) two completely new crimes were incorporated. The first one, article 26, was the treason article. This article penalized the exposure to investigation, arrest, unlawful deprivation of liberty and deportation. The second article, article 27, penalized getting economic advantage or causing someone else economic disadvantage under the power of the enemy. Furthermore, in Decree D61, penalties were increased and the death penalty for war-related crimes was introduced. In the Decree on Special Courts (D62) new Special Courts and a Special Court of Cassation were established. The Decree on Special Jurisdiction (D63) set up the structure for sentencing by these new Special Courts and the Special Court of Cassation. Finally, Decree 64, the shed light on the applicability of the legal principles. Secondly, the scientific study of the applicability of legal principles and human rights and finally, the Explanatory Memorandum to the Code of Criminal Procedure 1926. 1419 Engelandvaarders is the Dutch term given to Dutch citizens who fled from the occupied Netherlands to England between 1940 and 1945. 310 Pardon Advice Decree, included a pardon arrangement for sentences imposed under special jurisdiction. In addition to the analysis of the Decrees D61-D64 for this study, I analyzed and described the problems regarding the 'Directions' of 1937 and the 'Comment' thereon of 1943, the Decree on Special Martial Law (D60) of 1943 and the Tribunal Decree (1944), since these Decrees were of significant importance for the arrests of ‘political delinquents’ and their trial by the special courts and tribunals. An entirely new form of criminal law was formulated in London: the prosecution and trial of international war crimes. The decisions for this new form of criminal law were laid down in the Charter of St James (London 1942), the Moscow Declaration (1943) and the London Declaration and Charter (San Francisco 1945). The reason to start a complete new form of prosecution and trial of international war crimes was dissatisfaction with the way war crimes had been tried in Germany after the First World War. Although the Netherlands had cooperated from the start with the establishment of the law for international war crimes, the Netherlands was the last country to incorporate this new form of criminal law in its own penal system. Only after long discussions it was enacted in July 1947 by the adoption of Act H233. By this act a new article 27a was added to Decree D61, the Decree Special Criminal Law from 1943.