FINANCE MINISTER'S LAWYER
AT UTRECHT COURT HEARING
VOORZIENINGENRECHTER RECHTBANK UTRECHT
Sector Bestuursrecht [Sector Administrative Law]
Procedurenummer: SBR 03/1408 BELEI R25 VV GO2
Zitting van 1 juli 2003 te 9.30 uur [Hearing on 1 July 2003]
Pleitnotities mr. A.B. van Rijn [Plea Notes of Atty. A.B. van
The Minister of Finance / J.M.C. Sison
1. The request
1.1 By decision on March 7 2003 the Minister of Finance refused
to give an authorization to the Municipality of Utrecht ex art.
6 of the Regulation 2580/2001 of the Council of the European Union
of December 27 2001 regarding specific limiting measures against
certain persons and entities with regard to the struggle against
terrorism (PB L344). This authorization was necessary to enable
the municipality of Utrecht to grant J.M.C. Sison provisions based
on the Regulation hosting asylum seekers regarding an allowance
of 201,37, housing, WA (legal liability) insurance and health
1.2 By letter of March 20 2003 Sison protested against the above
mentioned decision of March 7 2003. Regarding this protest a hearing
session took place last May 1 2003. After this the protest was
declared unfounded on May 16 2003.
1.3 Against this declaration of 16 May 2003 on the protest, Sison
has appealed by letter of May 27 2003. Awaiting this appeal he
filed a request for a temporary provision. It is this request
that will be handled today.
The request consists of two parts:
a. In the first place your Judge is requested to decide that
the Minister of Finance shall still give the authorization with
b. Secondly, your Judge is requested to order the Minister to
do all that is possible to have the sanctions, which are the result
of putting Sison on a list based on Regulation (EC) Nr. 2580/2001,
lifted as soon as possible.
1.4 The Minister is of the judgment that the authorization has
been rightfully refused, that there is no ground for any order
to the Minister as requested by Sison and that therefore the request
for a temporary provision will have to be rejected
2. Facts and background
2.1 In 1968 in the Philippines, the Communist Party of the Philippines
(CPP) was founded, in 1969 followed its armed wing the New People’s
Army (NPA) and the National Democratic Front of the Philippines.
These groupings together form the Philippine communist resistance.
This resistance has the objective to establish a communist state
on Maoist grounds in the Philippines and carries out violence
like bombing, liquidations and kidnappings. Yearly some hundreds
fall victim to this violence, amongst them American military,
political opponents and also civilians. The NPA is characterized
by a strongly anti-American attitude and is fiercely opposed to
the presence of American troops in the Philippines. Sison is one
of the founders of the CPP and was also involved in the founding
of the NPA. Till today Sison plays an important role as a leader
and ideologue of the CPP/NPA
2.2 Under the Marcos regime Sison was imprisoned for nearly 10
years. After the overthrow of Marcos in 1986 he was released by
means of a general amnesty. While he was in the Netherlands in
1987 as an associate research professor in political science to
give lectures, an order to arrest him was issued and his passport
was withdrawn. This was based on allegations that he was active
again in the CPP. After this, Sison requested political asylum
in the Netherlands. On October 26 1988 he requested entry as a
refugee and to be provided with a permit to stay due to urgent
reasons of a humanitarian nature. However, he never obtained a
permit to stay. However, expulsion was not considered, because
Sison had a well-grounded fear for his life upon his return to
the Philippines. The REK (Rechteenheidskamer, Law Unity Chamber)
of the Court of The Hague decided on September 11 1997 that the
decision not send him out of the country while at the same time
refusing him a stay permit has been a rightful decision.
Against the refusal to be given a stay permit, Sison filed a complaint
in 1988 against the Netherlands at the European Court of Human
Rights (EHRM). The EHRM has not given a statement yet.
2.3 During the time of handling his request for a stay permit,
Sison has been receiving the normal regular provisions. Also in
the period after the rejection of his request became irrevocable,
Sison kept on receiving the provisions.
Pursuant to Art. III of the Decision of the State Secretary of
Justice of March 27 2001 to change the ROA (Stcrt March 29 2001,
nr. 63), the provisions have been terminated by a recent decision
of May 23 2003. However, this termination of the provisions will
not be dealt with today.
2.4 Regarding the events of September 11 2001 different measures
has been taken in the Netherlands as well as at the international
level, some of which like freezing bank accounts, forbidding the
provision of means to terrorist groups and allied persons.
2.5 Part of the limiting measures is specifically regarding persons
and entities that have relations with Osama Bin Laden, the Al
Qa’ida network and the Taliban. These go back to Resolution
1267 (1999) accepted by the Security Council on October 15 1999.
This Resolution contains a.o. the obligation of member states
to freeze bank accounts and other financial resources that belong
to or are controlled by the Taliban. At the European level this
Resolution was implemented through Regulation EC Nr. 366/2000
of the Council of the European Union (Pb EC L43), which later
was replaced by Regulation EC 467/2001 of March 6 2001 (Pb EC
L67). After the Security Council confirmed Resolution 1267 (1999)
on January 16 2002 in sharp language in Resolution 1390 (2002),
Regulation EC Nr. 467/2001 was replaced by Regulation EC Nr. 881/2002
of May 27 2002 (Pb EC L139)
2.6 Another set of measures was related to the fight against
international terrorism coming from others than Osama Bin Laden,
the Al Qa’ida network and the Taliban. Regarding this the
Security Council of the United Nations adopted Resolution 1373
(2001) on September 28 2001. In Resolution 1373 it is a.o. laid
down that all States have to freeze bank accounts and other financial
or economic resources of persons that commit terrorist acts, try
to commit such or facilitate the commission of such. At the same
time States should take measures to forbid that financial or economic
means will be provided to such persons and that financial or other
services are given to them.
2.7 On December 27 2001 the Council of the European Union, in
order to implement Resolution 1373, issued Regulation EC Nr. 2580/2001
regarding specific limiting measures against certain persons and
entities in the view of the fight against terrorism (Pb EC L344).
Based on art. 2 of this Regulation all assets, other financial
activa and economic means that are in the possession of, property
of or are kept with natural persons or legal persons, group or
entity that are placed on the list established by the Council,
will be frozen. At the same time it is forbidden to provide to
such person, legal person, group or entity direct or indirect
balances, other financial activa and economic means. Art. 6 of
the Regulation contains a hardheidsclausule (strictness clause).
Member states have the right but are not obliged to make an exception
in the view of special circumstances regarding the content of
Art. 2 Lid 1 of the Regulation.
2.8 The persons, groups and entities, that fall under art. 2
of Regulation 2580/2001 are put on a list which the Council of
the European Union by common standpoint of December 27 2001, Nr.
2001/930/GBBV (Pb EC L344) established for the first time. On
June 17 2002 the Council actualized the common standpoint 2001/931/GBVB
and replaced it with common standpoint 2002/462/GBVB (Pb EC L160).
By decision of October 28 2001 another actualization took place
and common standpoint 2001/462/GBVB was replaced by common standpoint
2002/847/GBVB (Pb EC L295). On the list that is attached to the
decision of October 28 2002, also Sison and the NPA are named.
2.9 To be able to fully implement the sanction regimes focused
on the fight against terrorism, the Dutch lawmaker has changed
the Sanction law 1977 by Law of May 16 2002, Stcrt. 2002, 270.
In the old law, measures to be taken were limited to certain states
or areas. This limitation has been lifted so that measures to
be taken can extend to persons and organizations that have been
proven to belong to a state or area. In this law , it has also
been provided, for all clarity, that measures do not have to be
related only to keep or restore international peace and security,
but also to the fight against terrorism. Regarding the explanatory
memoire, this does not only mean terrorist acts themselves but
also other activities related to that, like financial transactions
that could facilitate terrorist activities. See also MvT, TK 2001-2002,
28251, nr. 3, p. 1 and 2
2.10 Based on art. 2 par. 2 of the Sanction law 1977 the Minister
of Foreign affairs – in agreement with a related Minister
(in casu the Minister of Finance) – may determine regulations
for the execution of obligations that follow from Regulations
or binding decisions of organizations in the field of public law/(inter)national
law with regard to a.o. the fight against terrorism.
Art. 3 of the Sanction law 1977 determines a.o. that the regulations
mentioned in Art. 2 may refer to goods, services and financial
2.11 Based on this, three sanction regulations were ratified
shortly after each other. Sanction regulation terrorism 2002 of
June 4 2002, Stcrt. of June 5 2002, nr. 104 to implement Regulation
EC nr. 2580/2001. This is for non-EU entities. Sanction regulation
terrorism 2002 II of July 19 2002, Stcrt. July 23 2002, nr. 138.
This regulation is for the implementation of Resolution 1373 of
the Security Council of September 29 2001 and contains limiting
measures according to what has been determined in Regulation EC
nr. 2580/2001 for EU-citizens/entities. Sanction regulation terrorism
2002 III of August 13 2002, Stcrt. August 13 2002, nr. 153. This
regulation is also for the implementation of Resolution 1373 of
the Security Council of September 29 2001 and points to Sison
and the CPP/NPA as person and entities, to which limiting measures
do also apply.
2.12 After the events of September 11 2001 in general, there
existed a stronger interest in Sison and his ties with the NPA
in relation to striving to fight international terrorism. Last
December 6 2001 the State Department placed the NPA once more
on the terrorist exclusion list, based on which followers of the
NPA will not be allowed entrance to the USA or can be expelled
from the country. On August 12 2002 Sison and the CPP/NPA were
placed on the list of terrorists and groups that fall under Executive
Order 13224 of the President of the USA. This Executive Order
13244 contains the freezing and other blocking measures against
terrorist persons and groupings. Following this, the Netherlands
worked hard to also have Sison and the CPP/NPA being placed on
the European list. That was not yet the case in common standpoint
2002/462/GBVB. With the decision of October 28 2002 (2002/847/GBVB)
Sison and the NPA have thus been placed on the list.
2.13 Prior to this and considering the obligations of the Netherlands
based on Resolution 1373 of the Security Council, the Minister
of Foreign Affairs, in the decision of August 13 2002 (Sanction
regulation terrorism 2002 III), decided to bring Sison and the
CPP/NPA under the freezing and other measures. Based on Art. 2
par. 3 of this Regulation therefore all means of Sison and the
CPP/NPA were frozen, immediately starting from August 15 2002,
and it was forbidden to render financial services to provide means
to Sison or the CPP/NPA. Shortly after that, on October 4 2002,
exemption was given on this prohibition insofar it was related
to the benefits based on the Regulation for Asylum Seekers (Stcrt.
October 8 2002, nr. 193, p.8). Based on Art. 3 of the Sanction
regulation terrorism 2002 III, the Minister of Finance has been
authorized to handle on request and with the agreement of the
Minister of Foreign Affairs to allow an exemption. This exemption
authorization, according to the explanation of Art. 3, was meant
for special cases, e.g. for humanitarian reasons. Based on the
granted exemption, the benefits of Sison could be continued.
2.14 In the regime of the Saction law 1977 and the Sanction regulation
terrorism 2002, there came a change at the moment that Sison with
the CPP/NPA was placed on the list attached to the common standpoint
of October 28 2002. From that moment on, Regulation EC Nr. 2580/2001
was applicable to Sison and the CPP/NPA. Based on Art. 6 of that
Regulation, corresponding with the procedure provided for in that
article, authority should have been given to defreeze balances
and to provide means. This authorization system was to replace
the regime of exemption of Art. 3 of the Sanction regulation terrorism
2002 III based on the lex-superior–rule.
3. The reasons for refusing to give authorization
3.1 In the decision of March 7 2003, it is stated why the Minister
of Finance has decided to refuse the granting of the authorization
although exemption was granted earlier under the Sanction regulation
terrorism 2002. There has been a unanimous decision of the member
states of the EU based on which the Council of the European Union
has decided to add Sison to the list of persons that commit terrorist
acts or try to commit or facilitate or participate in the commission
of such. The Cabinet considers the fight against terrorism and
the financing of it extremely important. Following from this,
the policy of the Cabinet is focused on not to provide any financial
means as described in Regulation EC Nr. 2580/2001 to persons on
the list. To provide an authorization would be contradictory to
3.2 These are valid grounds to be able to decide on refusal.
In the view of a tightening up of the fight against terrorism
in the course of 2002, a new situation has developed. Firstly,
Sison was put on the American list. This and the research data
of the NIVD were reasons to already put him under the regime of
the Sanction law 1977, as has also been mentioned in the explanation
of Art. 3 of the Sanction regulation terrorism 2002 III.
See also Appendix Handelingen [Acts of the Tweede Kamer] nr.
143, meeting year 2002-2003.
Besides, it should be clear that in the Sanction regulation terrorism
2002 no special treatment was to be given to Sison compared with
other persons on the list of Executive Order 13224. He alone was
the only person on the list that was staying in the Netherlands.
Indeed Sison was still given an exemption. When Sison and the
CPP/NPA were also put on the European list, however, the opinion
at political level became: that there should be no room for any
exception for him anymore. If, at European level, unanimity exists
about the significance of Sison for international terrorism, and
the limiting measures against him are resulting from that, then
the Dutch government considers it imperative not to deviate from
that line. Such would be detrimental to the common anti-terrorism
4. Discussion of the grievances
4.1 Sison did not want to be convinced by the considerations
in the decision on the complaint of May 16 2003 and remains of
the opinion that the refusal to give an authorization was not
rightful based on the following arguments:
a. It is not rightful that no explanation has been given why
at first exemption was given whereas now no authorization will
be given anymore.
b. Sison should be treated in the same way as those on the list
that belongs to Regulation EC Nr. 561/2003, based on which economic
means to cover necessary basic needs are exempted from the freezing
and other measures.
c. Resolution 1452 (2002) of the Security Council of December
20 2002 has a direct effect and contains the obligation to make
an exception for covering basic needs regarding the freezing and
The Minister hereafter makes the following remarks:
4.2 There has been a rapid development in the year 2002. In the
course of that year we have seen an increased alert and tightening
up of the measures to fight terrorism. In relation to that, the
position of Sison has been paid attention to more clearly. His
person and the movement with which he is allied have been finally
put on the European list of persons and entities against which
the freezing of finances were rightfully in place. This has been
a gradual development.
As long as European decision-making was not finalized, Sison
has benefited still from some accommodation ("coulance =
mildness, accommodation). For this accommodation, howevr, there
was no longer place as soon as the Council of the European Union
had unanimously decided to put Sison and his movement on the list.
This was a new fact. The Minister thus considered it no longer
justified to make an exception for Sison. Sison already finds
himself for some years in “injury time” and should
be happy that he has received benefits based on the ROA for so
long after all. This has been in the meantime, as stated, put
to an end.
4.3 Sison refers to Regulation EC Nr. 561/2003. This Regulation
regards a change of Regulation EC Nr. 881/2002 for the determination
of certain specific limiting measures against some persons and
entities that have relations with Osama Bin Laden, the Al Qa’ida
network and the Taliban, regarding exceptions on the freezing
of balances and economic means and it is a rearranging ("omzetting"
= setting in another way] of Resolution 1452 (2002) of December
20 2002, whereby the Security Council decides to allow certain
exceptions on the freezing of assets and other limiting measures.
Based on this, the EC law had to be adjusted for what is the regime
that goes for Osama Bin Laden, the Al Qa’ida netwerk and
the Taliban. Sison incorrectly invokes to this application.
In the first place, he does not fall under Regulation EC Nr.
881/2002 but instead under Regulation EC Nr. 2580/2001. Both Regulations
have their own system of prescriptions. Regulation EC nr. 2580/2001
has in Art. 6 a discretionary authority for the member states.
It cannot be that this discretionary authority will be taken away
due to the change of another regulations meant for other persons
and groups than Regulation EC nr. 2580/2001. This last Regulation
is the criterion for Sison.There is also no European intention
to transform the discretionary authority in Art. 6 Regulation
EC nr. 2580/2001 into an obligation to make an exception. Secondly,
Regulation EC nr. 881/2002 is a direct rearrangement of the UN
Resolution meant for Osama Bin Laden, the Al Qa’ida network
and the Taliban. The European lawmaker did not have an input in
the resolution. This is different with Regulation EC nr. 2580/2001.
This is a new proper product of the European lawmaker. Besides,
the new Art. 2 bis of Regulation EC nr. 881/2002 does not say
much different than art. 6 of Regulation EC. Nr. 2580/2002. Also
Art. 2 bis starts from the point that is up to the member states
to decide whether an exception should be made. In case a member
state comes to the conclusion that an exception should be made,
harmonizing has to be done with the Sanction Committee. It is
never done automatically.
4.4 Sison finally invokes Resolution 1452 (2002) of the Security
Council of December 20 2002. Regarding this matter, the Minister
remarks that he is considering making an amendment in Resolutions
1267 (1999) and 1390 (2002). These resolutions are meant for taking
measures against the Taliban, the Al Qa’ida network and
Osama Bin Laden. The CPP/NPA and Sison do not belong to these
circles. Therefore Resolution 1452 (2002) is not of any importance
here. Resolution 1452 (2002) does not also have direct effect.
It focuses on the member states of the UN. This is also the reason
why the Council of the European Union has made the rearrangement
by changing Resolution EC Nr. 1881/2002 with Resolution EC nr.
561/2003. Thus, one cannot invoke Resolution 1452 (2002) independently.
5.1 The Minister concludes that he has rightfully decided that,
after the coming into effect of common standpoint 2002/462/GBVB,
an exception on Art. 2 Regulation EC nr. 2580/2001 regarding Sison
is not justified. The Netherlands should be able to fully contribute
to the fight against international terrorism. This also valid
regarding Sison. It is not for nothing that he has been put on
the European list.
5.2 The request for temporary provisions therefore has to be
A.B. van Rijn
postbus11756,2502AT Den Haag
Pels Rijcken & Droogleever Fortuijn advocaten & noturissen