Points of law

1) Article 13(4) of the Bailiffs' Regulations empowers the respondent to intervene if he considers that the service of a notification would be contrary to his obligations under international law. Only in this case may the respondent make use of his power and is he also therefore bound to do so, in view of the obligations to which the Dutch State is subject in this connection.

2) There is no question of the respondent being left any discretion in policy which could be construed as imposing a certain restriction on the Courts right of assessment. Whether the respondent was correct in arriving at the conclusion that it had an obligation under international law is a question which is ideally suited in every respect to be decided in full by the courts.

3) When interpreting and applying customary international law, the courts should take account of the fact that the Government, as the representative of the State in dealings with other States, also helps to mould the law by disseminating its views on what the law is and by endeavouring to observe in its dealings the practice based on these views.

4) Although there is no rule of international law that prohibits executions levied on the assets of a foreign State which are in the territory of another State, it is equally beyond doubt that rules of customary law prescribe immunity from execution in respect of the enforcement of a judgment, even if the court which gave the judgment was competent to do so under these rules [as in the present case] if this execution relates to assets intended for public purposes.

5) The note verbale from the foreign Embassy in which it is stated that all the money in the account which has been attached, is used in the performance of its functions, must be deemed sufficient proof that these moneys are intended for public purposes. To require the foreign mission in the Netherlands to give a further and more detailed account of the funds in this account would amount under international law to an unjustified interference in the internal affairs of this mission.

Summary of the case

The petitioner instructed a bailiff in The Hague, to attach a bank account of the Republic of Turkey at the Algemene Bank Nederland in Amsterdam, by way of execution of a judgment given against the Republic on 1 August 1985 in which her dismissal by the Turkish Embassy in The Hague was declared void and Turkey was ordered to pay a sum of Dfl. 7,700.

By letter dated 3 November 1986 the State Secretary gave notice to the bailiff under Article 13(4) of the Bailiffs' Regulations that he should refuse to serve any notification in connection with the execution of the judgment since this was contrary to the international obligations of the State of the Netherlands.

Sources

KG 1987, 38.

English summary: NYIL 1988, p. 439-443.

Additional information (explanations, notes, etc.)

See Article 3a of the Act of 26 January 2001 establishing the Bailiffs Act.

See the Explanatory Memorandum to the amendment of the Bailiffs’ Act.