Folkerts v Public Prosecutor

• Jurisdiction: Holanda
• Judgment Date: 08 May 1978
• Court: Supreme Court (Netherlands)
• Date: 08 May 1978

The Netherlands, Supreme Court.

Folkerts

and

Public Prosecutor

The individual in international law Extradition Political crimes European Convention on Extradition, 1957, Article 3(1) Member of Red Army terrorist group Offences committed to put pressure on Federal German Government Predominant importance of political aspect of offences Offences connected with political offences Requirement of double criminality Article 2 of the Convention The law of the Netherlands

Summary: The facts:1The Federal Republic of Germany requested the extradition of Folkerts, a German national, in 1977. It appeared from the Haftbefehl (detention order) that he was accused of the following offences: (1) participation in the Red Army Faction, the object of which was to commit

crimes (1976/1977); (2) the murder of the General-Bundesanwalt, Federal Attorney-General Buback, and his two escorts at Karlsruhe (7 April 1977); (3)(a) theft of weapons and (b) dealing in arms at Frankfurt (1 July 1977); (4) receiving the proceeds of a bank raid at Essen (3 August 1977); (5) committing in one series of actions at Cologne on 5 September 1977 (a) the murder of Schleyer's four escorts, (b)(d) the kidnapping of Schleyer and the blackmailing of third persons by threatening to kill him and (e) unlawfully forcing the Government of the Federal Republic, by violence or threats of violence, to exercise its powers in a particular manner. Folkerts contested the admissibility of extradition before the District Court of Maastricht2 relying on Article 3(1) of the European Extradition Treaty, in that the offences for which extradition was being requested were to be regarded as political offences or at least as offences connected with such offences. The District Court considered the offences were not of a political nature and declared extradition admissible (Judgment of 25 January 1978). Folkerts then appealed in cassation to the Supreme Court. He contested the District Court's claim that the offences were not of a political nature in appeal point 3 (in respect of all the offences), appeal point 6 (in respect of offence (4)) and appeal points 7, 8 and 9 (in respect of offence (5))

Held:The appeal was allowed with respect to offence (5), which involved the kidnapping of Schleyer, but was dismissed with respect to the remaining offences.

(1) Under Article 3(1) of the European Convention on Extradition, extradition was inadmissible in respect of political offences and offences connected with political offences. Offences which were not in themselves of a political nature should nevertheless be regarded as political offences or as offences connected with such offences if, in the light of the circumstances in which they had been committed, they were of a predominantly political character.

(2) The question of whether the proven fact that the ultimate objective being pursued was of a political nature gave a political aspect to the character of such offences, and the question of whether such political aspect was of predominant importance, were to be decided in the light of the other circumstances in which these offences had been committed. The mere fact that offences committed by a legal entity could be regarded in part, but not predominantly, as political offences or as offences connected with such offences, did not mean that participation in such a legal entity was to be seen as having a predominantly political character.

(3) In judging whether the political aspect of the...