The Court of Appeal in The Hague has held that the Dutch State is not obliged to actively help repatriate 56 Dutch children and their 23 mothers from Northern Syria (link). The Court of Appeals has thereby overturned the judgment rendered bij the Provisional Relief Judge of the District Court of The Hague on 11 November 2019, who had ordered the State to take all reasonable action to help repatriate the children, and if necessary also their mothers, within two weeks after judgment (link). Following that initial verdict, the State lodged a so-called ‘turbo-expedited appeal’ (‘turbospoedappel’), which was considered by the Court of Appeal during a hearing on 22 November 2019. The Court of Appeal rendered its decision orally that same day and published its written verdict today.
Whereas the Provisional Relief Judge had held that the balance of interest should be in favour of the children in light of the appalling conditions in which they find themselves along with the fact that they themselves are not to blame for their current situation, the Court of Appeal held that the State had sufficiently asserted its interests in refusing to repatriate the children (and their mothers). The Court of Appeal further held that although a judge is allowed to balance the interests concerned, it must do with reservedly because the plaintiffs' claims are closely related to questions of national security and foreign policy. On the basis of this marginal test, the Court of Appeal concluded that the State was reasonably allowed to refuse to actively pursue the repatriation of the women and children.
The plaintiffs disagree with the judgment by the Court of Appeal. They assert that their interests were insufficiently taken into account and that the Court of Appeal has failed to demonstrate why its assesement was in favor of the State. According to the judgment, the Court of Appeal is rather unconvinced by the line of reasoning proferred by the State and in fact emphasizes the great interest the women and children have to be repatriated from Syria, as well as the fact that their fundamental rights are at stake in the Kurdish camps where they reside. As such, the Court of Appeal failed to explain how it came to its conclusion. The plaintiffs also do not agree with the standard of review applied by the Court of Appeals, amongst other things because it does not duly consider the interests of the children as protected by treaty-law.
The plaintiffs hope to force the State to repatriate them through Supreme Court. They will be represented by in the cassation proceedings by cassation lawyer Robert van Galen from the law firm Nauta Dutilh.
In first and second instance, the women and children were represented by lawyers from five different law firms: Tom de Boer and Tamara Buruma from Prakken d’Oliveira Human Rights Lawyers, André Seebregts from Seebregts en Saey Advocaten, Elpiniki Kolokatsi from Kolokatsi Advocaten, Bart Nooitgedagt from De Roos en Pen Advocaten and Jeffrey Jordan from Jordan Law.