The Volokh Conspiracy - Translation of the Dutch Decision in the Ayaan Hirsi Ali Case:

Reader James Wallmann, who's a lawyer and who speaks Dutch, very kindly responded to my request -- many thanks to him for his help. Here's what he writes:

Here is a translation of the summary and a summary of the opinion....

Mr. Dorsman's translation of the summary is very good — probably better than mine.

Translation of "Inhoudsindicatie" (Summary) of LJ# AW5258, Gerechtshof [Court of Appeal], The Hague, 06/83

Translator's note: Except as indicated, all brackets are in the original decision.

The State purchased an apartment in an apartment building in [place] and renovated it as a high security residence. At the present time, the State allows [person] to live in this apartment. A number of residents of the other apartments object to this. They claim that they are in danger of becoming victims if an attack is carried out on [person] while she is in the building. In addition, they claim to be burdened by the security measures which have been established for [person]. For the most part, the court agrees with the residents. The court finds that an impermissible burden on the residents has not been proven. But, according to the judgment of the court, it is reasonable to believe that the residents do not feel safe within their own apartments because one of the apartments is a high security residence for [person]. Because the residents do not feel safe in the place where they — of all places — should feel safe, namely their residence, it is a violation of their right to live where they want to live [woonrechten, probably not "human rights" — trans.] In order to keep this violation of Art. 8 EVRM [Europees Verdrag voor de Rechten van de Mens, or European Convention on Human Rights — trans.] from becoming an actionable violation, the State must see that [person] leaves the apartment within four months. The error of the State in establishing her residence in the apartment without legal justification must not be shifted to the residents, who did not agree to this. The judgment of the court is based on the specific circumstances of this case and, in particular, on the fact that this high security residence is occupied by [person]. There are insufficient grounds to conclude that the occupancy of the apartment by another protected person would be a violation of Art. 8 EVRM.

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Summary of other portions of the decision:

Caption — The names of the appellants are removed. The appellants are identified as Appellant 1A, Appellant 1B, Appellant 2A, Appellant 2B, etc.

1.1 — The facts were not disputed by the appellants or the State.

1.3 — Residents claim to be burdened by security measures and fear of attacks. Further, the value of their apartments has suffered as a result of [person] residing in the high security apartment. The residents claim this violates their rights under Art. 8 of the ECHR and their legal rights under Dutch law as apartment dwellers.

1.4 — A report by a security expert engaged by the residents concludes that the threat to [person] is high, that other residents are at risk, and that the apartment building is not suited for high security residents.

1.5 — The State's position is that while there can be inconvenience for residents at some times, these inconveniences are limited and not unreasonable and that the threats against [person] should not be deemed "high". When the threats on [person] are acute, she is brought to a safe house, which must be understood to be a residence on a military base. The State is prepared to discuss appropriate security measures with the residents. Further, the State is prepared to compensate residents for the diminished value of their apartments.

1.6 — The State disagrees with some of the expert's security report.

1.7 — The residents filed suit against the State to stop [person]'s use of the apartment or, at the least, to keep [person] from the apartment until security measures could be discussed with the residents and State compensated the residents for their damages.

1.8 — The trial court dismissed the residents' claim. The expert's security report was discounted because the expert was not in the same position as the State to evaluate the risks. The fears of the residents were not established. The State was prepared to work with the residents on security measures. Violations of Art. 8 of the ECHR and Dutch law were not shown..

3.1 — This court puts the violations claimed by the residents into three categories: (i) having to wait at the elevator or parking garage when [person] comes and goes, and security personnel occupying a resident's parking space; (ii) contact with security personnel and having to show identification to security personnel in the common areas (hall, parking garage, elevator); and (iii) fear of being subject to an attack while in one's own home.

3.2 — The court begins with the premise that common areas are part of one's home as that term is understood in Art. 8 of the ECHR. The court recognizes that what may be a violation in one's own home is not necessarily a violation if it happens in a common area. Further, not every disturbance of a covenant of quiet enjoyment is a violation of Art. 8 of ECHR.

3.3 — The court finds that the complaints described in category (i) are not violations of Art. 8 of ECHR.

3.4 — The presence of security personnel in the common areas (category (ii)) is not, in itself, a violation of Art. 8 of the ECHR. Depending on the other circumstances, however, this finding could change.

3.5 — Three specific complaints of individual residents are discussed.

3.6 — These three complaints are without merit because the security personnel responded in a reasonable manner to these three unusual circumstances.

3.7 — Category (iii) is a different matter. The court finds it reasonable that the residents would be afraid in their own apartments because of an attack on [person]. The State has not disputed that [person] is a target of such attacks. It is a matter of general knowledge that [person] was threatened in a letter found on the body of the murdered Theo van Gogh and the media regularly reports threats on [person]. That the disclosure of [person]'s residence by Minister Donner, as reported in a newspaper, puts the residents as well as [person] at risk is not denied by the State. There is no reason to think that an attack on [person]'s apartment would not also extend to the common areas and other apartments.

3.8 — The State's only response is that the feelings of danger experienced by the residents are not objectively justified because the actual danger level is lower than what the residents themselves experience. While the State has explained the steps it is taking, this does not take away from the fear experienced by the residents.

3.9 — Also, the State has never said that the risk of an attack on [person] is miniscule, something with which the court agrees. The feeling the residents have of not being safe is thus objectively justified. It must be acknowledged that a small chance of great danger can be reason to have feelings of not being safe. The presence of security personnel leads to an almost permanent feeling of not being safe.

3.10 — The residents are thus in a situation that they do not feel safe at home, not only in common areas but also in their own apartments. The court is of the opinion that this constitutes a serious breach of Art. 8 of the ECHR. The residents no longer feel safe in the place where they — of all places — should feel safe, namely their residence. The State caused this situation by bringing [person] to the apartment without the permission of the residents and without taking steps to remove the fears of the residents. The State is therefore responsible for a violation of Art. 8 of the ECHR.

3.11 — The question whether this violation is one "contemplated by the law" as defined by Art. 8, part 2 of the ECHR is answered in the negative. The requirements under Dutch law for the State to take ownership of an apartment do not permit the State to violate the rights of the other residents.

3.12 — The court concludes that the State impermissibly disturbed the residents by allowing [person] to live in the apartment. The judgment is based on the specific circumstances of this case and in particular, the fact that [person] lives in the apartment. There is insufficient basis to conclude that another protected person living in the apartment would also be a violation of Art. 8 of the ECHR.

3.13 — The State justifies its actions by pointing out that the right to live and be free for [person] should be weighed against the rights claimed by the residents. The State also pointed out that protected persons, in order to carry out their societal responsibilities in a democratic society, should reside in as normal a home as possible. However, the State failed to show that other possibilities were explored than putting [person] in an apartment.

3.14 — It is certainly a difficult thing for [person] to be threatened and to have to be protected and, potentially, to have to move frequently. The error of the State in establishing her residence in the present apartment without legal justification must not be shifted to the residents, who did not agree to this. The court finds it reasonable that if the situation does not change, more residents will move or sell their apartments (some already have).

4.1 — A claim was advanced before the trial court by the residents that the modifications and use of the high security apartment make it no longer a "residence" as defined in Dutch law.. Adding armor to the apartment and modifying the common areas without permission are also claimed to be illegal.

4.2 — This claim is denied. [Person] lived in the apartment and it is obviously her residence. The changes made did not need official approval, nor were there prohibited changes made in the common areas.

5.1 — In conclusion, claims I, II, and III are granted and claim IV is denied, which means that claim V does not need to be addressed. The judgment of the trial court is reversed and the State is given four months in which to end [person]'s use of the apartment.

5.2 — The State is deemed to be the non-prevailing party and will bear costs of €4,992.25.

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	[Eugene Volokh, May 10, 2006 at 2:12am] Trackbacks Translation of the Dutch Decision in the Ayaan Hirsi Ali Case: Reader James Wallmann, who's a lawyer and who speaks Dutch, very kindly responded to my request -- many thanks to him for his help. Here's what he writes: Here is a translation of the summary and a summary of the opinion.... Mr. Dorsman's translation of the summary is very good — probably better than mine. Translation of "Inhoudsindicatie" (Summary) of LJ# AW5258, Gerechtshof [Court of Appeal], The Hague, 06/83 Translator's note: Except as indicated, all brackets are in the original decision. The State purchased an apartment in an apartment building in [place] and renovated it as a high security residence. At the present time, the State allows [person] to live in this apartment. A number of residents of the other apartments object to this. They claim that they are in danger of becoming victims if an attack is carried out on [person] while she is in the building. In addition, they claim to be burdened by the security measures which have been established for [person]. For the most part, the court agrees with the residents. The court finds that an impermissible burden on the residents has not been proven. But, according to the judgment of the court, it is reasonable to believe that the residents do not feel safe within their own apartments because one of the apartments is a high security residence for [person]. Because the residents do not feel safe in the place where they — of all places — should feel safe, namely their residence, it is a violation of their right to live where they want to live [woonrechten, probably not "human rights" — trans.] In order to keep this violation of Art. 8 EVRM [Europees Verdrag voor de Rechten van de Mens, or European Convention on Human Rights — trans.] from becoming an actionable violation, the State must see that [person] leaves the apartment within four months. The error of the State in establishing her residence in the apartment without legal justification must not be shifted to the residents, who did not agree to this. The judgment of the court is based on the specific circumstances of this case and, in particular, on the fact that this high security residence is occupied by [person]. There are insufficient grounds to conclude that the occupancy of the apartment by another protected person would be a violation of Art. 8 EVRM. (Click here to show the rest.) * * * Summary of other portions of the decision: Caption — The names of the appellants are removed. The appellants are identified as Appellant 1A, Appellant 1B, Appellant 2A, Appellant 2B, etc. 1.1 — The facts were not disputed by the appellants or the State. 1.3 — Residents claim to be burdened by security measures and fear of attacks. Further, the value of their apartments has suffered as a result of [person] residing in the high security apartment. The residents claim this violates their rights under Art. 8 of the ECHR and their legal rights under Dutch law as apartment dwellers. 1.4 — A report by a security expert engaged by the residents concludes that the threat to [person] is high, that other residents are at risk, and that the apartment building is not suited for high security residents. 1.5 — The State's position is that while there can be inconvenience for residents at some times, these inconveniences are limited and not unreasonable and that the threats against [person] should not be deemed "high". When the threats on [person] are acute, she is brought to a safe house, which must be understood to be a residence on a military base. The State is prepared to discuss appropriate security measures with the residents. Further, the State is prepared to compensate residents for the diminished value of their apartments. 1.6 — The State disagrees with some of the expert's security report. 1.7 — The residents filed suit against the State to stop [person]'s use of the apartment or, at the least, to keep [person] from the apartment until security measures could be discussed with the residents and State compensated the residents for their damages. 1.8 — The trial court dismissed the residents' claim. The expert's security report was discounted because the expert was not in the same position as the State to evaluate the risks. The fears of the residents were not established. The State was prepared to work with the residents on security measures. Violations of Art. 8 of the ECHR and Dutch law were not shown.. 3.1 — This court puts the violations claimed by the residents into three categories: (i) having to wait at the elevator or parking garage when [person] comes and goes, and security personnel occupying a resident's parking space; (ii) contact with security personnel and having to show identification to security personnel in the common areas (hall, parking garage, elevator); and (iii) fear of being subject to an attack while in one's own home. 3.2 — The court begins with the premise that common areas are part of one's home as that term is understood in Art. 8 of the ECHR. The court recognizes that what may be a violation in one's own home is not necessarily a violation if it happens in a common area. Further, not every disturbance of a covenant of quiet enjoyment is a violation of Art. 8 of ECHR. 3.3 — The court finds that the complaints described in category (i) are not violations of Art. 8 of ECHR. 3.4 — The presence of security personnel in the common areas (category (ii)) is not, in itself, a violation of Art. 8 of the ECHR. Depending on the other circumstances, however, this finding could change. 3.5 — Three specific complaints of individual residents are discussed. 3.6 — These three complaints are without merit because the security personnel responded in a reasonable manner to these three unusual circumstances. 3.7 — Category (iii) is a different matter. The court finds it reasonable that the residents would be afraid in their own apartments because of an attack on [person]. The State has not disputed that [person] is a target of such attacks. It is a matter of general knowledge that [person] was threatened in a letter found on the body of the murdered Theo van Gogh and the media regularly reports threats on [person]. That the disclosure of [person]'s residence by Minister Donner, as reported in a newspaper, puts the residents as well as [person] at risk is not denied by the State. There is no reason to think that an attack on [person]'s apartment would not also extend to the common areas and other apartments. 3.8 — The State's only response is that the feelings of danger experienced by the residents are not objectively justified because the actual danger level is lower than what the residents themselves experience. While the State has explained the steps it is taking, this does not take away from the fear experienced by the residents. 3.9 — Also, the State has never said that the risk of an attack on [person] is miniscule, something with which the court agrees. The feeling the residents have of not being safe is thus objectively justified. It must be acknowledged that a small chance of great danger can be reason to have feelings of not being safe. The presence of security personnel leads to an almost permanent feeling of not being safe. 3.10 — The residents are thus in a situation that they do not feel safe at home, not only in common areas but also in their own apartments. The court is of the opinion that this constitutes a serious breach of Art. 8 of the ECHR. The residents no longer feel safe in the place where they — of all places — should feel safe, namely their residence. The State caused this situation by bringing [person] to the apartment without the permission of the residents and without taking steps to remove the fears of the residents. The State is therefore responsible for a violation of Art. 8 of the ECHR. 3.11 — The question whether this violation is one "contemplated by the law" as defined by Art. 8, part 2 of the ECHR is answered in the negative. The requirements under Dutch law for the State to take ownership of an apartment do not permit the State to violate the rights of the other residents. 3.12 — The court concludes that the State impermissibly disturbed the residents by allowing [person] to live in the apartment. The judgment is based on the specific circumstances of this case and in particular, the fact that [person] lives in the apartment. There is insufficient basis to conclude that another protected person living in the apartment would also be a violation of Art. 8 of the ECHR. 3.13 — The State justifies its actions by pointing out that the right to live and be free for [person] should be weighed against the rights claimed by the residents. The State also pointed out that protected persons, in order to carry out their societal responsibilities in a democratic society, should reside in as normal a home as possible. However, the State failed to show that other possibilities were explored than putting [person] in an apartment. 3.14 — It is certainly a difficult thing for [person] to be threatened and to have to be protected and, potentially, to have to move frequently. The error of the State in establishing her residence in the present apartment without legal justification must not be shifted to the residents, who did not agree to this. The court finds it reasonable that if the situation does not change, more residents will move or sell their apartments (some already have). 4.1 — A claim was advanced before the trial court by the residents that the modifications and use of the high security apartment make it no longer a "residence" as defined in Dutch law.. Adding armor to the apartment and modifying the common areas without permission are also claimed to be illegal. 4.2 — This claim is denied. [Person] lived in the apartment and it is obviously her residence. The changes made did not need official approval, nor were there prohibited changes made in the common areas. 5.1 — In conclusion, claims I, II, and III are granted and claim IV is denied, which means that claim V does not need to be addressed. The judgment of the trial court is reversed and the State is given four months in which to end [person]'s use of the apartment. 5.2 — The State is deemed to be the non-prevailing party and will bear costs of €4,992.25. (Click here to hide.) Related Posts (on one page): "Let Nobody Belittle Them Courage, Shame, and Practice: Translation of the Dutch Decision in the Ayaan Hirsi Ali Case: Blegging for Translation from Dutch: Threatened Dutch Politician Required to Move Out of Her Apartment,