Alinea 207 Parket bij de Hoge Raad 26 juni 2018

370. As explained above, the finding that an amnesty scheme does not obstruct the exercise of Dutch jurisdiction means that the Public Prosecution Service has, in principle, a right to prosecute unless a ground for immunity from prosecution exists. In my view, the only statutory ground for exclusion of liability to prosecution which could even remotely be considered applicable is that set out in article 68, paragraph 2 of the Criminal Code. This provision applies the ne bis in idem principle to the judgments of foreign criminal courts. It does so – since many years – in a rather far-reaching way A foreign criminal judgment that can be equated under Dutch law with an acquittal, a discharge from prosecution on a point of law, a judicial pardon or a conviction followed by the full execution of the penalty, a pardon or debarring of the execution of the penalty due to expiry of the period of limitation prevents prosecution of the defendant in the Netherlands, regardless of the country in which or the regime under which the judgment was given. Similarly, article 54 of the Convention implementing the Schengen Agreement (CISA) provides that a person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party. The question whether an amnesty scheme constitutes a circumstance preventing enforcement of a penalty under the laws of the sentencing Contracting Party admits of various answers. A case can be made for answering this question in the affirmative. Furthermore, in my view, the possibility cannot be entirely excluded that an amnesty granted abroad must, in certain circumstances, be treated as equivalent to the granting of a pardon for the purposes of article 68, paragraph 2 of the Criminal Code. However, the present case is not one in which a conviction has not been enforced (or not fully enforced) as a consequence of an amnesty. After all, criminal proceedings were never instituted in Liberia. I see no reason to equate the amnesty with an acquittal, a discharge from prosecution on a point of law or a judicial pardon. Nor, therefore, does article 68, paragraph 2 of the Criminal Code prevent the prosecution of a defendant who has been granted an amnesty abroad, provided in any event that he has not also already been tried in that country.

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