Alinea 183 Parket bij de Hoge Raad 26 juni 2018

360. Amnesty is a concept that is dormant in the Netherlands. As far as I am aware, the last occasion on which amnesty was granted in the European territory of the Kingdom of the Netherlands dates back to 1941. The subject therefore receives no real attention in the main textbooks on substantive criminal law and the law of criminal procedure. Only in the context of legal assistance provided to or received from foreign states is the subject of amnesty addressed somewhat more frequently and in greater detail. This is hardly surprising since a glance beyond the Dutch border reveals that amnesty plays a much greater role in the international community. Examples known in the Netherlands are the Indemnity Act enacted in South Africa and the Surinamese Amnesty Act of 1992, which was changed to such an extent under the regime of President Bouterse in 2012 that it now also relates to human rights violations committed in Suriname between 1980 and 1985, including the events of December 1982. As amnesty is granted on such varied grounds and conditions and for such varied purposes worldwide, it is hard to define it adequately and precisely. In general, however, amnesty always involves a legal measure or decision whose primary function is to remove the prospect and/or consequences of (criminal) liability for one or more individuals or groups of persons in respect of certain (criminal) offences. The precise scope of an amnesty depends on the relevant scheme and must therefore be viewed from the perspective of the law of the state granting it. Nonetheless, the content and tenor of foreign amnesty legislation cannot be determined autonomously in cassation proceedings since the court of fact’s interpretation of the amnesty law of a foreign state cannot then be challenged on points of law. This is because the Supreme Court is precluded from interpreting the law of foreign states under article 79 of the Judiciary (Organisation) Act. The court of fact’s judgment can be set aside on account of irrationality only if there are manifest errors in its interpretation.

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