Uitspraak
judgment
[Translation from Dutch]
[Translation from Dutch]
DISTRICT COURT IN THE HAGUE
Commercial law section
Judgment of 24 April 2013
in the proceedings with
case number / docket number C/09/355125 / HA ZA 09-4324of
case number / docket number C/09/355125 / HA ZA 09-4324of
[plaintiff A.],
living in [residence],
plaintiff,
lawyer:
mr. I.M.C.A. Reinders Folmer in Amsterdam,
mr. I.M.C.A. Reinders Folmer in Amsterdam,
against
[defendant],
without a known address in the Netherlands, presently in detention,
defendant,
lawyer:
mr.H.W.E. Vermeer in Amstelveen,
mr.H.W.E. Vermeer in Amstelveen,
and in the proceedings with
case number / docket number C/09/355128 / HA ZA 09-4325of
case number / docket number C/09/355128 / HA ZA 09-4325of
1.[plaintiff B.],
living in [residence], Iran,
2. [plaintiff C.],
living in [residence], Iran,
3. [plaintiff D.],
living in [residence], Iran,
4. [plaintiff E.],
living in [residence], Iran,
5. [plaintiff F.],
living in [residence], Iran,
6. [plaintiff G.],
living in [residence], Iran,
7. [plaintiff H.],
living in [residence], Iran,
8. [plaintiff I.],
living in [residence], Iran,
9. [plaintiff J.],
living in [residence], Iran,
10. [plaintiff K.],
living in [residence], Iran,
11. [plaintiff L.],
living in [residence], Iran,
12. [plaintiff M.],
living in [residence], Iran,
13. [plaintiff N.],
living in [residence],
plaintiffs,
lawyer:
mr. I.M.C.A. Reinders Folmer in Amsterdam,
mr. I.M.C.A. Reinders Folmer in Amsterdam,
against
[defendant],
without a known address in the Netherlands, presently in detention,
defendant,
lawyer:
mr. H.W.E. Vermeer in Amstelveen,
mr. H.W.E. Vermeer in Amstelveen,
and in the proceedings with
case number / docket number C/09/355159 / HA ZA 09-4342of
case number / docket number C/09/355159 / HA ZA 09-4342of
1.[plaintiff O.],
living in [residence],
2. [plaintiff P.],
living in [residence],
plaintiffs,
lawyer:
mr.I.M.C.A. Reinders Folmer in Amsterdam,
mr.I.M.C.A. Reinders Folmer in Amsterdam,
against
[defendant],
without a known address in the Netherlands, presently in detention,
defendant,
lawyer:
mr. H.W.E. Vermeer in Amstelveen,
mr. H.W.E. Vermeer in Amstelveen,
and in the proceedings with
case number / docket number: C/09/372625 / HA ZA 10-2768of
case number / docket number: C/09/372625 / HA ZA 10-2768of
[plaintiff Q.],
living in [residence],
plaintiff,
lawyer:
mr. I.M.C.A. Reinders Folmer in Amsterdam,
mr. I.M.C.A. Reinders Folmer in Amsterdam,
against
[defendant],
without a know address in the Netherlands, presently in detention,
defendant,
lawyer:
mr.H.W.E. Vermeer in Amstelveen.
mr.H.W.E. Vermeer in Amstelveen.
Hereafter, the plaintiffs in the legal proceedings with case numbers 355125, 355159 and 372625 will be referred to as [A.], [O.], [P.] and [Q.] respectively, and together as ‘the plaintiffs from Iraq’. The plaintiffs in the proceedings with case number 355128 will be each referred to with their family names, and together as ‘the plaintiffs from Iran’.
Together, in all proceedings the plaintiffs will jointly be referred to as ‘the plaintiffs’. The defendant will be referred to as ‘[defendant]’.
The lawyer handling the cases of all plaintiffs is
mr.Zegveld.
mr.Zegveld.
1.The course of the proceedings in all cases
1.1.
The course of the proceedings is demonstrated by:
- the interlocutory judgments of 13 April 2011, 3 August 2011 and 15 August 2012;
- the letter from the Court to all parties dated 15 August 2012;
- the letter from lawyer
mr.L. Zegveld dated 17 August 2012;
mr.L. Zegveld dated 17 August 2012;
- the report dated 23 August 2012 from the International Legal Institute (ILI);
- the letter from the Court to all parties dated 5 September 2012;
- the report from expert Prof. Dr. Sh.H. Safai dated 7 October 2012;
- the report from expert H.A. Hamoudi, Associate Professor of Law, of 10 October 2012;
- the letter from the Court to all parties dated 16 October 2012;
- the document commenting on the experts’ reports on the part of all plaintiffs dated 14 November 2012;
- the document commenting on the experts’ reports on the part of [defendant] dated 9 January 2013;
- the letter from the Court to all parties dated 14 January 2013;
- the letter from
mr.L. Zegveld dated 6 February 2013;
mr.L. Zegveld dated 6 February 2013;
- the letter from
mr.L. Zegveld dated 7 March 2013;
mr.L. Zegveld dated 7 March 2013;
- the letter from the Court to all parties dated 15 March 2013.
1.2.
Finally, today’s date was established as the date of judgment.
2.The further assessment
in all cases
2.1.
The Court pronounced interlocutory judgments on 13 April 2011, 3 August 2011 and 15 August 2012, the contents of which are to be regarded as taken over and inserted herein. The Court maintains the considerations and decisions of the afore mentioned interlocutory judgments.
2.2.
The Court will briefly summarize the essence of these proceedings.
2.3.
The plaintiffs from Iraq and the plaintiffs from Iran claim damages from [defendant] for the damage they suffered as a consequence of the bombings with mustard gas on cities in Iraq and Iran in the nineteen eighties of the previous century, executed by the Sadam Hussein regime. At the time of the bombings, the plaintiffs, all civilians, were living in one of the bombed cities. As a result of the bombings, they came into contact with mustard gas and therefore, were (seriously) injured.
2.4.
In their (now irrevocable) judgment of 9 May 2007, the Court of Appeal in The Hague deemed legally and convincingly proven that the regime in Iraq violated the laws and
customs or war by implementing mustard gas against civilians on Iraqi and Iranian territory during
the nineteen eighties of the previous century, and that [defendant] purposely provided the means
and/or opportunity for the commission of these crimes by supplying thiodiglycol (TDG) to Iraq,
which was used for the production of mustard gas.
2.5
The plaintiffs from Iraq and the plaintiffs from Iran argue that [defendant], through his behavior, acted wrongfully towards them and that he should compensate them for the damages suffered on his account. [defendant] defended himself against the claims by arguing, among other matters, that the right of action by the plaintiffs has become barred.
2.6
Currently, the case is ready for a final judgment. The Court will also briefly comment on this as follows.
2.7
In the interlocutory judgments of 13 April 2011, the Court decided that the claims submitted by the plaintiffs from Iraq should be judged according to Iraqi law and the claims submitted by the plaintiffs from Iran according to Iranian law. Subsequently, in its interlocutory judgments of 3 August 2011, the Court sought the advice from the International Legal Institute (ILI) with respect to the legal questions to be answered under Iraqi or under Iranian law. On 27 June 2012, the ILI reported to the Court that they were unable to fully answer all the questions from the Court concerning the contents of Iraqi and Iranian law and that efforts to involve external experts from the regions concerned had not been successful.
2.8
Subsequently, on the recommendation of the counsel for the plaintiffs and with the agreement of [defendant]’s counsel, the Court, in its interlocutory judgment of 15 August 2012, appointed Mr. Haider Ala Hamoudi, Associate Professor of Law at Pittsburgh University (hereafter: Hamoudi) as the expert for Iraqi law and Hossein Saffei, Professor at the Science and Research Branch of the Islamic Azad University in [residence] (hereafter: Safai) as the expert for Iranian law. Each of these persons published an expert’s report. The answers to the questions put to them have all been furnished with careful and understandable motivations. The Court is in agreement with the contents of the experts’ reports and endorses them, unless stated otherwise below. With the exception of some parts to be discussed hereafter, the parties also endorsed the contents of the experts’ reports. With the aid of these reports, the Court deems itself sufficiently informed concerning the answers to the legal questions under Iraqi and Iranian law.
2.9
At the request of the Court, the ILI has now made available to the Court the (incomplete) findings they were able to obtain upon the instruction given to them by the Court. The parties have been allowed to comment on these findings. Contrary to the notification in the interlocutory judgments of 15 August 2012 (2.6), (the English translation) of the ILI interim report was not forwarded to the experts. In view of the legal questions to be answered in these proceedings, the Court deems it not necessary to still forward the ILI findings to the experts. The contents of the two experts’ reports do not give cause for this. Anyway, the parties did not request this either. Although [defendant], in the case of the plaintiffs from Iraq, suggested to the Court to request further information from the ILI concerning a point to be discussed later, the Court, for reasons
outlined below as well, does not see any reason for this.
2.1
Thus, there are no more obstacles to the pronouncement of the judgment.
furthermore, in the cases of the plaintiffs from Iraq
evidential value of the criminal judgment
2.11
In the interlocutory judgments of 13 April 2011, the Court judged that (i) the ruling of the Court of Appeal in The Hague of 9 May 2007, furnishes binding evidence with respect to the charges considered proven against [defendant], (ii) [defendant] insufficiently contested the charges considered proven by the Court of Appeal, so that (iii) the charges found proven in the ruling of the Court of Appeal are also considered to be firmly established in the present proceedings.
2.12
[defendant] adheres to the view that the ILI interim report gives reason to request further advice from the ILI regarding the relation between article 161 of the (Dutch) Code of Civil Procedure (Cp) and Iraqi law. For this purpose, [defendant] referred to the passage on page 9 of the ILI report, reading: “civil law consequences of the wrongful act will be […] judged independently from the criminal law consequences of the wrongful act”. This passage holds a footnote which refers to a scientific article by the American author D.E. Stigall and is not explained in more detail. Further investigation regarding this point is not deemed necessary by the Court. Contrary to [defendant]’s arguments, article 161 Cp predominantly is a rule of procedural law. Even considering that a provision similar to article 161 Cp would in fact not exist in Iraqi civil procedural law, this does not imply that in these proceedings, the Court should leave article 161 Cp aside and/or should apply Iraqi procedural law. After all, the judge before whom proceedings are instituted, shall apply national procedural law. In this case this is Dutch procedural law. All the more, since the plaintiffs from Iraq institute legal action against a defendant with the Dutch nationality, while the claim is (also) based on (the explanation of) a Dutch criminal judgment. Therefore, the Court maintains the decision pronounced earlier in the interlocutory judgments of 13 April 2011 (7.3) that in the current proceedings, article 161 Cp should be applied. [defendant]’s request to the Court to obtain further advice from the ILI and/or Hamoudi is rejected.
wrongful act
2.13
As already considered in part 7.7 of the interlocutory judgments of 13 April 2011, the Court will proceed from the following established facts. During the Sadam Hussein regime in Iraq, [defendant] supplied TDG to the Iraqi military industry, which was used by the regime for the production of mustard gas. This mustard gas was processed in bombs, which were used by the Iraqi regime to have certain cities bombed which resulted in many injured civilians. During the course of 1984, but in any case in 1986, [defendant] knew that the TDG supplied by him had Iraq as its final destination
and that it would be used there for the production of poison, being mustard gas. This knowledge, together with his efforts to conceal the supply of a precursor of that gas and its production, includes [defendant]’s knowledge that the mustard gas would be used by Iraq in the war against Iran and in the armed conflict with the Kurds in Iraq.
2.14
It is the Court’s opinion that according to Iraqi law, these facts constitute a wrongful act by [defendant] towards the plaintiffs from Iraq. In this context, the Court refers to the following passages from the Hamoudi report:
“4. Under Iraqi law, in order for compensation to lie for any intentional, wrongful act, three elements must be established. These are: fault on the part of one (meaning intent to commit the wrongful act, or negligence in so committing it), harm and a causal link between the fault and the harm. (…).
5. Iraqi courts routinely apply this broadly accepted standard when determining fault. (…).
6. The question presented by the Court concerns the causal link, the third element, and in particular in cases where there are two more potential wrongdoers who have caused the fault.
7. Commentaries make clear that the general rule is one of joint and several liability in the case of two or more causes of fault. (…).
(…)
1. However, it is important to note that the rule of joint and several liability does not apply when one fault “drowns out the other”. Hence, article 211 of the Iraq Civil Code reads as follows:
If a person proves that the harm arose from a foreign cause in which he had no hand, such as an act of God, a surprise event, force majeure, the act of another or the fault of the perpetrator, then the person is not obligated to guarantee (the debt of the obligee).
Hence, Article 211 contemplates that there are circumstances where the causal link as between fault and harm is broken because of the act of a third party. According to both Hakim and Sanhuri [two authoritative authors, addition by the Court] this only occurs when the fault of the third party “drowns out” the original fault. (…) Otherwise, the general rule of joint and several liability applies.
As a general matter, “drowning out” occurs in circumstances where the relative faults are so disproportionate, and the causal link as between the smaller fault and the harm is so attenuated, that it can no longer be reasonably said that the harm was “caused” by two separate faults. (…)
Sanhuri describes two different specific sets of factual circumstances where one fault could be understood to “drown out” the other. These are not intended to be exclusive. The first set of circumstances arises where “one of the causes is the result of the other”. (…)
The second set of circumstances where one fault “drowns out” another relates to a situation where one person responsible for the harm acted with intent, and the other acted negligently. (…)
(…)
Based on the foregoing, it is my conclusion that Iraqi law would regard the defendant [defendant] in this case jointly and severally responsible for damages owed to the Iraqi victims.
a. I draw this conclusion on the basis of the factual determination set forth in Section 7.5.2 of the Court’s opinion that indicated that defendant [defendant] must have known both that the TDG he supplied would be used to produce mustard gas, and that the mustard gas would be deployed in the war. This makes the relevant
mens reaof defendant [defendant] to be that of intent rather than negligence, thereby rendering the circumstances of par. 14-15 not relevant in this case.
mens reaof defendant [defendant] to be that of intent rather than negligence, thereby rendering the circumstances of par. 14-15 not relevant in this case.
b. Similarly, as a general matter, the relevant levels of fault here are not so disproportionate as to render the causal link broken under Iraqi law because one fault “drowned out” the other. In this case, as I understand the facts as set out by the Court, defendant [defendant] knowingly sold a key chemical for an illegal weapon to a regime that he knew would use it, after which the regime used it. It is hard to see why the first wrongful act would be “drowned out” by the second because of such a massive difference in proportionate responsibility. The examples of drowning out, including the relative liability of one who negligently guards a car and another who uses a gun to steal that same car, or one who negligently digs a hole and another who shoves a rival into that hole, are simply not the same—the fault in those cases is far more disproportionate. (…)”
2.15
[defendant] has argued that he did not commit a wrongful act against the plaintiffs from Iraq since he did not produce the mustard gas himself. According to him, there is more to the commission of a wrongful act than the provision of the means and the opportunity. [defendant] further claims that sending out airplanes to throw mustard gas bombs on civilians is a clear sign of such evil intentions that this displaces [defendant]’s responsibility for the supply of a precursor for mustard gas, as charged to him (in Hamoudi’s words: “drown out”).
2.16
[defendant]’s plea is rejected. [defendant] supplied the raw materials for a chemical weapon to the Sadam Hussein regime, knowing that this weapon would be produced and implemented. [defendant]’s acts do not pale into insignificance besides the actual use of the weapon, but they form an essential link in the causal chain. Therefore, there is no situation in which the causal link between [defendant]’s acts and the ensuing damage has been “drowned out” by another cause.
damage
2.17
To the question by the Court whether in the case of the wrongful acts by [defendant] against the plaintiffs from Iraq the claimed material and immaterial damage is allowable, Hamoudi rendered a positive answer. In this respect, Hamoudi referred to article 205 of the Iraqi Code of Civil Procedure and he drew attention to some limitations of the right to damages which are not relevant here.
limitation
2.18
In so far as relevant to the answer to the legal questions under discussion in these proceedings and with respect to the Iraqi law (of limitation), Hamoudi reported the following (2.19-2.27).
2.19
The articles 232, 429, 435 (first paragraph) and 437 (first paragraph) of the Iraqi Code of Civil Procedure (ICC) are important:
Article 232
A suit for compensation arising out of a wrongful act shall not be heard after the passing of three years from the day that the injured party had knowledge of the occurrence of the harm and the person who committed it. In all cases the suit shall not be heard after the passing of fifteen years from the day of the occurrence of the wrongful act.
Article 429
A suit in obligation whatever its cause shall not be heard as to one who denies it after it has been unclaimed without a legitimate reason for fifteen years, except as otherwise set forth in specific provisions.
Article 435 (1)
The specified period for not hearing a case shall be suspended for a legitimate reason, for example if the plaintiff is a minor or a ward and he does not have a guardian, or he is absent in a distant foreign country, or if the suit is between two spouses, or as between ancestors or descendants, or there is a different prohibition that renders it impossible for the plaintiff to demand his right.
Article 437(1)
The specified period for not hearing a case shall be interrupted with a claim to a judicial authority even if the suit was made to a court without jurisdiction based on an excusable mistake, such that if an obligee claims his amount due in court, and the suit is not resolved until after the period ends, it can still be heard after this.
2.2
Under Iraqi law, civil claims which are based on acts deemed punishable may become prescribed before the punishable offense itself has become prescribed. Under Iraqi law or under international law applicable in Iraq, [defendant]’s acts may also be qualified as war crimes. And, under Iraqi law, civil suits based on the co-commission of war crimes may also become prescribed. The fifteen-year term of article 232 ICC is applicable irrespective of the fact whether the plaintiffs from Iraq knew the perpetrator in person or not.
2.21
Under Iraqi law, the condition of article 232 ICC that “the injured party had knowledge of the person who committed the harm” will only have been met if one can speak of subjective knowledge by the injured party of the person responsible.
2.22
The possibilities for suspension as referred to in article 435 ICC are not only applicable with respect to the short prescriptive period of three years, but also for the long prescriptive period of fifteen years.
2.23
The question from the Court whether the term of limitation is suspended and/or extended with (i) the period during which Sadam Hussein was in power, or (ii) the period in which the plaintiffs from Iraq stayed in Iraq during the Sadam Hussein regime, was answered by Hamoudi as follows:
“There is some room for doubt. However, it does seem to me that under circumstances where the plaintiffs are outside of Iraq and capable of making their claims under Iraqi law in a foreign court, as apparently they currently are, it is hard to see why a suit against the regime in that foreign court is as impracticable as a force majeure event. It is certainly inconvenient, and the potential obstacle of the safety and well being of family members in Iraq of course looms, yet the claim that the suit is “impracticable” seems like a challenging one. My conclusion would change under circumstances where the foreign court would refuse to hear the case for jurisdictional or other reasons. (…) I conclude that there is a legitimate excuse that justifies suspension as per Article 435 during the time that plaintiffs were in Iraq. I do not think the matter is free from any doubt, given the manner in which courts generally only find force majeure events in narrowly circumscribed circumstances. Nevertheless, this may be one instance where such … circumstances arise. (…) I regard the existence of the Saddam Hussein regime as being the type of excuse, akin to force majeure, that renders the pursuit of a claim in Iraq impracticable and that would therefore merit a suspending of the fifteen year limitations claim. (…)”.
2.24
Article 435 ICC stipulates that the prescriptive term is suspended during the period in which the injured party is a minor. This possibility for suspension is not applicable in case the minor has a guardian. About the definition of the term ‘guardian’, Hamoudi reported the following:
“It should be noted that a “guardian” is defined in a rather limited fashion in Iraqi law to refer not to either parent of a minor. Article 102 Civil Code: “the guardian of a minor is his father, then the designee of his father, then his paternal grandfather, then the designee of his parental grandfather, then the court, or one the court appoints” and “As it would not be realistic to expect a court to institute a civil suit on behalf of a minor, the natural conclusion would be that children without a father or a paternal grandfather or one appointed by them would not have a guardian for purposes of Article 435 of the Civil Code”.
2.25
Under Iraqi law, a person is a minor until the time he or she reaches the age of eighteen. There is an exception to this rule in case a person was married, with the approval of the Court, before the age of eighteen. In the current proceedings, there is no such exception.
2.26
The Court asked Hamoudi to explain the term ‘remote country’ as referred to in article 435 ICC (according to Hamoudi in the translation of article 435 ICC: ‘distant foreign country’). Furthermore, the question was put to him whether the period during which [A.], [P.], [O.] and [Q.] stayed in the Netherlands and [defendant] elsewhere, falls under the definition of this term, and whether this is also valid for the period during which [Q.] stayed in Canada and [defendant] elsewhere (in Iraq and in the Netherlands). Hamoudi answered as follows:
“In determining what is “remote” (…) the principle is that it must be the type of impediment that renders suit considerably difficult. (…) Thus, if the Court finds that the claimants were not in such a remote location that the filing of a suit in a competent court would have presented a serious obstacle, then no legitimate reason for suspension will lie. If it would have presented such an obstacle, the limitations period may be extended. (…)
My preliminary assessment would be that filing suit in Iraq from a nation such as the Netherlands and Canada would present a significant obstacle that would give rise to a “personal impediment” justifying suspension. However, it is not clear to what extent plaintiffs could have readily filed suit elsewhere, and whether their location rendered it reasonable for them to have considered a foreign venue where no significant obstacle to suit might exist. The answer to this question could determine whether or not the plaintiffs were in a “remote foreign location” for purposes of Article 435.”
2.27
Article 437, first paragraph ICC should be interpreted in the sense that under Iraqi law limitation is interrupted by the institution of a claim to a judicial authority. Hamoudi described the consequences of interruption as follows:
“Immediately upon “interruption”, the entire statute of limitations comes to an end entirely; it is not suspended pending a ruling. A new statute of limitations would begin once the judicial claim brought by the obligee comes to an end. (…) A new statute of limitations would begin once the legal proceedings resulting from the submission of the obligee’s claim are addressed by judgment.”
furthermore, in the case of [A.] (09-4324)
2.28
[defendant] has defended himself against [A.]’s claim by relying upon limitation. His plea is successful. [A.] admitted that she had been aware of her possible claim on [defendant] since 25 November 2005. She argues that she interrupted the period of limitation because, on 18 April 2008, i.e. within the three-year term of limitation, her lawyer sent a letter to [defendant], also on her behalf, in which she held him liable. The question was put to Hamoudi whether this letter, which contents were quoted in paragraph 5.25 of the 13 April 2011 interlocutory judgments (erroneously
dated 18 April 2003 in the 3 August 2011 interlocutory judgments) is regarded as an act of interruption by [A.] under Iraqi law. Hamoudi answered negatively. Under Iraqi law, limitation can only be interrupted by the submission of a claim to a judicial authority (ref. article 437 ICC). [A.] did not submit a claim to a judicial authority within a period of three years calculated from 21 November 2005. According to the judgment of the Court in the interlocutory judgments of 13 April 2011 under 7.21, in this situation, the time limit of [A.]’s claim has expired. This is a binding judgment to which the Court is principally bound during the further course of the proceedings. Even if the latter were different, [A.]’s arguments stated in the document commenting on the experts’ reports do not give cause for the Court to take a different decision. In this respect, the Court primarily refers to Hamoudi’s report which provides no support for the standpoint that the three-year limitation period may be set aside for reasons of reasonableness and fairness. In addition, the Court refers to the considerations in the interlocutory judgments of 13 April 2011 under 7.14. In these considerations the Court expressed that it was aware of the fact that the possible result of the claim from one or more of the plaintiffs from Iraq would be that the claim had expired, which may be experienced as very unsatisfactory given [defendant]’s actions under discussion and the significant and shocking consequences for the victims, but that no rule of public order would be suitable to preclude this result.
furthermore, in the case of [O.] (09-4342)
2.29
With respect to [O.]’s claim, in his statement commenting on the expert’s report [defendant] referred to the Court’s judgment regarding the question whether [O.]’s claim had expired or not. The Court understands that [defendant] indeed desires an answer from the Court regarding the limitation issue. Since the Court is not allowed to officially apply the remedy of limitation, concerning this point it interprets his statement in the way that the limitations plea will be maintained.
2.3
On 29 June 2001, [O.] became of age. There is no discussion between the parties about the fact that until he became of age, [O.] had no guardian within the meaning of article 435 ICC. This implies that the fifteen-year term of article 232 ICC, beginning at the time of the bombings on Halabja on 16 March 1988, was suspended until 29 June 2001. At present, this term has not expired yet.
2.31
There is no discussion between the parties about the fact that only in December 2004, [O.] got to know the person who is responsible for his damage. [O.] joined in the Dutch criminal proceedings as an injured party within three years. Pursuant to article 437, first paragraph, ICC, as a result of the institution of this claim the limitation was interrupted and the period of limitation came to an end simultaneously. [defendant] explicitly does not invoke the expiration of the afterwards newly started period of limitation. This means that [O.]’s claim will not be denied because of limitation based on the three-year term.
furthermore, in the case of [P.] (09-4342)
2.32
Also with respect to the question whether the limitation period of [P.]’s claim had expired, [defendant] referred to the Court’s judgment. For the same reason as in the case of [O.], the Court decides that the limitation plea will be maintained.
2.33
[P.] came to the Netherlands from Iraq on 17 October 1998. Based on article 435 ICC, the fifteen-year term, commencing on 16 March 1988, was suspended until 17 October 1998. For the same reasons as worded by Hamoudi, during that period it was quite impossible for [P.] to institute a claim against [defendant]. After all, at that time the Sadam Hussein regime was still in power. Therefore, currently the fifteen-year term has not yet expired.
2.34
There is no more discussion between the parties about the fact that, only in December 2004, [P.] got to know the person who is responsible for his damage. He joined in the criminal proceedings as an injured party within three years. Pursuant to article 437, first paragraph, ICC, as a result of the institution of this claim the limitation was interrupted and the period of limitation came to an end simultaneously. [defendant] explicitly does not invoke the expiration of the afterwards newly started period of limitation. This means that [O.]’s claim will not be denied because of limitation based on the three-year term.
furthermore, in the case of [Q.] (10-2768)
2.35
[defendant] relies upon the expiration of the limitation period of [Q.]’s claim.
2.36
In 1989, [Q.] left Iraq and came to live in the Netherlands. He stayed until 2001. In 2001, he left the Netherlands and went to live in Canada. In 2008, [Q.] returned to the Netherlands. Based in article 435 ICC, the fifteen-year term (commencing on 16 March 1988) was suspended until April 2003, when [defendant] came to live in the Netherlands, and not – as argued by [defendant] – until 1989, when [Q.] left Iraq. As long as [defendant] stayed in Iraq and the Sadam Hussein regime was in power, it was reasonably impossible for [Q.] to institute an action against [defendant] in Iraq. [defendant] has not presented any facts or circumstances that could demonstrate that during the period between 1989 and 2003, a claim by [Q.] would have been allowable in another country than the one [defendant] lived in at the time but did not have its nationality. Therefore, the situation as referred to by Hamoudi in 2.26, is not relevant here. Within the meaning of article 435 ICC, [Q.] is considered to have been staying in a ‘distant foreign country’ until April 2003.
2.37
With respect to the three-year term it is noted that there is no longer a discussion about the fact that only in 2008, [Q.] got to know the person who is responsible for his damage. [Q.] subpoenaed [defendant] within the three-year term, which commenced in 2008. Therefore, the limitation period for [Q.]’s claim has not expired.
furthermore, in the cases of the plaintiffs from Iraq
2.38
The above leads to the conclusion that [A.]’s claim has expired and for this reason, is denied. The claims submitted by [O.], [P.] and [Q.] are allowable. As a result of his wrongful acts, [defendant] is liable for the damage that [O.], [P.] and [Q.] suffered as a consequence. Iraqi law contains a provision for the awarding of compensation because of material and immaterial damage. There is agreement between the parties concerning the extent of the damage suffered by the plaintiffs from Iraq. The claim regarding the payment of statutory interest is legally founded. The claims submitted by [O.], [P.] and [Q.] will be allowed in the manner as set out below.
costs of the proceedings
2.39
As the party found to be at fault, [A.] will be ordered to pay [defendant]’s costs of the proceedings, to date estimated at € 550 for court registry fees and € 1,737 for lawyer’s fees (three points at the III tariff, € 579).
2.4
Now that the claims of the other plaintiffs from Iraq will be allowed, [defendant] will be ordered to pay the costs of the proceedings for those plaintiffs, for [O.] and [P.] to date estimated at € 72.25 for notification costs, € 1,100 for court registry fees and € 1,737 for lawyer’s fees (three points at the III tariff, € 579), and for [Q.] at € 73.89 for notification costs, € 550 for court registry fees and € 1,737 for lawyer’s fees (three points at the III tariff, € 579).
2.41
Expert Hamoudi’s fee shall not be charged to (one of) the parties (ref. 2.4 of the 15 August 2012 interlocutory judgments).
in the case of the plaintiffs from Iran
wrongful act
2.42
It is the Court’s opinion that, also under Iranian law, the offences as set out in 2.13 constitute wrongful acts by [defendant] towards the plaintiffs from Iran. In this respect, the Court refers to the following passage from Safai:
“In Iranian law, in respect of the conditions of compensable loss, it has been stipulated that the loss must be direct or immediate. Article 520 of the Civil Procedure Code provides that: "For demanding compensation of the loss incurred, the claimant shall prove that the immediate loss incurred directly through failure or delay to or in performance of the obligation, or failure to deliver the subject. Otherwise, the court dismisses the action of claim for damages". Nevertheless, the Iranian jurists believe that "immediate" or "direct" does not refer to the fact that there should be no intermediary between the detrimental act and the damage incurred, but it means that there should be a customary causal link between the damage incurred and the respondent’s act or omission. It is to say that custom and usage should attribute the damage incurred to the respondent. For instance, if any one compels an insane person or a non discerning minor or provokes an animal to cause damage, the person who compels or provokes is held responsible for the loss incurred, although there is an intermediary between the detrimental act and the loss.” and
“The existence of customary causal link is a condition for establishing civil liability. The recognition of the existence of a customary causation is for the court to take care of, howbeit, in my opinion, general custom and in particular, custom and usage of the Iranian community imputes this loss to Mr. [defendant]; since had he not sold the chemicals to the Government of Iraq, there would be no loss suffered by chemically injured persons. Therefore, causation, in the sense accepted under Iranian law, is present in this concern, and as far as other elements of civil responsibility (fault and loss) are also ascertained, we should find the Respondent as liable and responsible for compensating the loss.”
and
“[defendant] is a reasonable or customary cause and in case of several reasonable causes, their liability is joint and several and victims can demand their whole reparations from each of the causes.”
2.43
[defendant] has argued that Safai’s plea, as just quoted, in itself is a contradiction in terms. On the one hand Safai argues, according to [defendant]’s counsel, that it is up to the judge to decide whether [defendant] is liable, while on the other, Safai applies an “old-fashioned ‘sine qua non’- reasoning”, which does no justice to the requirement in article 520 of the Civil Procedure Code, i.e. a “direct link”. The Court does not subscribe to the statement that Safai’s report (on this point or otherwise) contains a contradiction. Safai states that when answering the question concerning causal relationship, the judgment must be made whether there is a “direct link”, i.e. a “customary link”. Apparently, Iranian law, just like Dutch law, endorses the doctrine of reasonable attribution. There is a causal relationship. In so far as [defendant] has requested the Court to ask Safai for further explanation concerning his advice, in view of the above, the request is denied.
damage
2.44
The extent of the damage suffered by the plaintiffs from Iran is no point of discussion between the parties. According to Safai, the compensation claimed for material and immaterial damage is allowable based on article 1 of the Civil Responsibility Act. Regarding the question whether Iranian law provides for a compensation for immaterial damage suffered, and if so, which criteria will have to met, Safai answered as follows:
“Compensation of immaterial damages has been adopted and can take place through financial or other means envisaged in Iranian law. No particular criteria is provided in Iranian Civil Code and Civil Responsibility Act to evaluated immaterial damages and determine their amount; these are left to the judge’s discretion.”
2.45
[defendant] requested attention to the fact that in his report, Safai ignores the question to what extent the damage as referred to by the plaintiffs from Iran is direct damage or consequential damage. Now that article 520 of the Civil Procedure Code seems to exclude consequential damage, regarding this point [defendant] considers further explanation by Safai necessary. The Court rejects this standpoint. The question whether [defendant] is responsible for the consequential damage under Iranian law, should be answered in the follow up procedure for the determination of damages, and not in the current proceedings. After all, in the current proceedings the claim for damages is not about consequential damage, but simply for compensation of (direct) immaterial damage and a declaratory judgment that with respect to the plaintiffs from Iran [defendant] is responsible for further material and immaterial (consequential) damage.
2.46
The above leads the Court to the conclusion that the claims submitted by the plaintiffs from Iran are allowable.
costs of the proceedings
2.47
As the party found to be at fault, [defendant] will be ordered to pay the costs of the proceedings, on the part of the plaintiffs from Iran to date estimated at € 72.20 for notification costs, € 4,938 for court registry fees and € 1,737 for lawyer’s fees (three points at the III tariff, € 579).
2.48
Expert Safai’s fee shall not be charged to (one of) the parties (ref. 2.4 of the 15 August 2012 interlocutory judgments).
3.The decision
The Court:
in the case of [A.] (09-4324)
3.1
rejects [A.]’s claim;
3.2
sentences [A.] to pay the costs of the proceedings, with respect to [defendant] estimated to date at € 2,287, payable as follows:
. to the Court’s registry:
for suspended court registry fees;
fee for [defendant]’s counsel;
adding up to a total of € 2,168 which amount shall be handled by the Court registrar according to the law;
b. to [defendant];
for non-suspended court registry fees;
in the case of [O.] and [P.] (09-4342) and in the case of [Q.] (10-2768)
3.3
sentences [defendant] to pay the amount of € 25,000 to [O.], to be increased by the statutory interest as from 16 March 1988 until the payment date;
3.4
sentences [defendant] to pay the amount of € 25,000 to [P.], to be increased by the statutory interest as from 16 March 1988 until the payment date;
3.5
sentences [defendant] to pay the amount of € 25,000 to [Q.], to be increased by the statutory interest as from 16 March 1988 until the payment date;
3.6
rules that [defendant] has acted wrongfully and that, with respect to [O.], [P.] and [Q.], he is liable for damages for further material and immaterial damage, to be assessed by the Court and to be increased by the statutory interest;
3.7
sentences [defendant] to pay the costs of the proceedings, with respect to [O.] and [P.] estimated to date at € 2,909.25 payable as follows:
. to the Court’s registry:
for notification costs;
for suspended court registry fees;
fee for [O.]’s and [P.]’s counsel;
adding up to a total of € 2,790.25 which amount shall be handled by the Court registrar according to the law;
b. to [O.] and [P.];
for non-suspended court registry fees;
and with respect to [Q.] estimated to date at € 2,360.89, payable as follows:
. to the Court’s registry:
for notification costs;
for suspended court registry fees;
fee for [Q.]’s counsel;
adding up to a total of € 2,241.89 which amount shall be handled by the Court registrar according to the law;
b. to [Q.];
for non-suspended court registry fees;
3.8
rules the sentences to have immediate effect;
in the case of the plaintiffs from Iran (09-4325)
3.9
sentences [defendant] to pay the amount of € 25,000 to [B.], to be increased by the statutory interest as from 16 April 1987 until the payment date;
3.1
sentences [defendant] to pay the amount of € 25,000 to [C.], to be increased by the statutory interest as from 11 April 1987 until the payment date;
3.11
sentences [defendant] to pay the amount of € 25,000 to [D.], to be increased by the statutory interest as from 28 June 1987 until the payment date;
3.12
sentences [defendant] to pay the amount of € 25,000 to [E.], to be increased by the statutory interest as from 28 June 1987 until the payment date;
3.13
sentences [defendant] to pay the amount of € 25,000 to [F.], to be increased by the statutory interest as from 16 April 1987 until the payment date;
3.14
sentences [defendant] to pay the amount of € 25,000 to [G.], to be increased by the statutory interest as from 22 July 1988 until the payment date;
3.15
sentences [defendant] to pay the amount of € 25,000 to [H.], to be increased by the statutory interest as from 22 July 1988 until the payment date;
3.16sentences [defendant] to pay the amount of € 25,000 to [I.], to be increased by the statutory interest as from 2 August 1988 until the payment date;
3.17
sentences [defendant] to pay the amount of € 25,000 to [J.], to be increased by the statutory interest as from 28 June 1987 until the payment date;
3.18
sentences [defendant] to pay the amount of € 25,000 to [K.], to be increased by the statutory interest as from 16 April 1987 until the payment date;
3.19
sentences [defendant] to pay the amount of € 25,000 to [L.], to be increased by the statutory interest as from 11 April 1987 until the payment date;
3.2
sentences [defendant] to pay the amount of € 25,000 to [M.], to be increased by the statutory interest as from 28 June 1987 until the payment date;
3.21
sentences [defendant] to pay the amount of € 25,000 to [N.], to be increased by the statutory interest as from 28 June 1987 until the payment date;
3.22
rules that [defendant] has acted wrongfully and that, with respect to [B.], [C.], [D.], [E.], [F.], [G.], [H.], [I.], [J.], [J.], [L.], [M.] and [N.], he is liable for damages for further material and immaterial damage, to be assessed by the Court and to be increased by the statutory interest;
3.23
sentences [defendant] to pay the costs of the proceedings, with respect to [O.] and [P.] estimated to date at € 6,747.20;
3.24
rules the sentences to have immediate effect;
furthermore, in the case of the plaintiffs from Iran (09-4325) and in the case of [O.] and [P.] (09-4342)
3.25
rejects all other claims.
This judgment was rendered by
mr.H.F.M. Hofhuis,
mr.D.A. Schreuder and
mr.J.W. Bockwinkel, and pronounced in public on 24 April 2013.
mr.H.F.M. Hofhuis,
mr.D.A. Schreuder and
mr.J.W. Bockwinkel, and pronounced in public on 24 April 2013.
[End of translation]