On 24 December 2019, the Appeals Court in The Hague rendered an interim judgment in the case concerning the 1977-Moluccan Train Hijacking near De Punt. It has held that the lawyers representing the surviving relatives of Max Papilaja and Hansina Uktolseja are to be given greater access to crucial evidence, namely three audio recordings by the marines of the operation that ended the hijacking. One of the recordings was made by the marines in Attack Group 5, who entered the foremost locomotive and shot Max Papilaja.

Because the material is sensitive, lawyers Liesbeth Zegveld and Brechtje Vossenberg had previously only been given limited access to it. On the one hand, the recordings were played during closed sessions at the district court. On the other hand, it had been determined that for the purpose of preparing the case for court, only the lawyers listen to the recordings on appointment at the Dutch Institute for Military History (Nederlands Instituut voor Militaire Historie, ‘NIMH’). Those listening sessions always took place under the supervision of an NIMH-employee, which in practice made it very difficult for the lawyers to discuss the material. In addition the NIMH is a knowledge institute of the Dutch State that is located at the ‘Frederikkazerne’, a complex of military barracks in The Hague. This alone posed an insurmountable objection for certain experts (from military circles) who wanted to assist the lawyers with the analysis of the material, but were only willing to do so confidentially.

With this interim judgment, the Appeals Court has responded to Papilaja and Uktolseja’s objections that all the restrictions that had been imposed inhibited their ability to prepare their case both freely and confidentially. This is a fundamental right that is guaranteed by Article 6 of the European Convention on Human Rights.

In a so-called ‘exhibition request’ (article 843a of the Dutch Code of Civil Process), the lawyers had requested access to the audio recordings at a neutral location without supervision (let alone by a State-employee). The Appeals Court has ordered the State of the Netherlands to make the recordings available at the court registry, along with suitable playback and listening equipment. In order to guarantee the anonymity of proposed experts, a separate judge has been appointed who will ensure that only Papilaja and Uktolseja’s lawyers and experts of their choosing will come in to listen to the recordings. This separate judge and the clerks who will assist him in the execution of this interim judgment, will not discuss who comes in to hear the audio recordings with the judges who preside over this appeals case.

You can find the interim judgment here (in Dutch).

 

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Prakken d'Oliveira, formerly known as Böhler, is a law firm with expertise and experience in asylum and immigration law, European law, administrative law, international criminal law and human rights. Our lawyers provide advice and conduct procedures before the Dutch Immigration and Naturalization Service (IND), the Dutch Review Committee on the Intelligence and Security Services (CTIVD), the District- and Appeals courts, the Administrative Law Division of the Dutch Council of State, the Supreme Court of the Netherlands, the European Court of Human Rights (ECHR), the Court of Justice of the European Union (ECJ), the Human Rights Treaty Bodies of the United Nations (UN), the International Criminal Court (ICC), and other international tribunals.