pageok
pageok
pageok
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.

TechieLaw:
Frightening.

I'd just like to point readers at the European Convention on Human Rights. Note that Article 8 emphasizes its purpose as part of living in a democratic society, and that Articles 9 and 10 respectively discuss the need for freedom of thought and freedom of expression.

This court ruling appears to throw away the concepts of a democratic society and the necessity of free speech in favor of a NIMBY rule for those who don't rock the boat. It's interesting that the court decision lays out three potential arguments about why this person shouldn't be permitted to live in the building. It completely dismisses the first, which is regarding freedom of movement of the tenants within their own home. The court's decision mostly revolves around the third theory, which is basically that the tenants are afraid of an attack on the building.

Shouldn't that be the other way around?

I mean, if I live in a building, my right to exit and enter my own building shouldn't be affected on a daily basis by whether or not a "protected" person is trying to enter or leave at the same time. I shouldn't be required to revolve my life around the needs of that person, and set my own schedule, doctor's appointments, and dinner parties accordingly. If the security needed is that strong, I think a reasonable person could agree that these kinds of conditions would make life miserable on a daily basis for anybody living in the building.

But the court didn't decide to rule in favor of the tenants on that basis. Instead, it basically said that anybody with speech outside the mainstream should be forced to live in special housing designed for such people if their speech causes threats to be made against them.

With that type of logic, so much for protection of free expression and ideas. Just a few well-placed threats would shut up anybody who didn't want to live in a bunker.
5.10.2006 3:40am
Steve:
The reason this is an issue is because the State decided to purchase an apartment in this building and use it as a "safe house." If Private Citizen A happens to buy the apartment next door, and I feel unsafe because the terrorists are after him, that would be a different case, and I would find it somewhat distressing if the law gave me a remedy. But it's not so shocking to hold that the State's right to expose people to danger in their own homes is at least somewhat constrained.

Would people feel differently if the State were using the apartment to store munitions, or some other target attractive to terrorists, rather than a high-risk person? I get the sense that for a lot of people this issue boils down to "if we do not voluntarily accept Risk X, the terrorists have already won."
5.10.2006 4:18am
jpaulg (mail):
Let's look at what the state has done in this case.

1) It's purchased an apartment. No problem there.

2) It's renovated said apartment into a high security residence. I'm assuming that we're talking about bullet proof glass, surveillance cameras, steel doors and the like. If a bomb goes off Ayaan Hirsili probably is relatively safe. Her neighbors have no additional security measures built into their apartments and are relatively unsafe despite the fact that they would not be the intended target. Same goes for any non specifically targetted attack, such as someone firing a large number of bullets into the building. That I'm not so cool with. I think that it is arguable that the state should have provided security renovations to the other apartments within the complex to ensure the safety of all of ots citizens living in the apartment, not just a select one.

3) The state then deposits a high risk target into the building. It's not as if the state has no other alternative secure accomodation. For example it could place Ayaan Hirsali at an army base. Sure that's a pretty sucky outcome for Ayaan, and not one that she deserves. But, why should the desire for one person to live a relatively normal life give the state the right to put the lives of people who have not voluntarily assumed the risk into danger. Put it another way, how many people on this forum would move themselves and their family into the apartment next to Ayaan? I might put myself at risk, but my wife and children - I don't think so.
5.10.2006 5:43am
Just:
"With that type of logic, so much for protection of free expression and ideas. Just a few well-placed threats would shut up anybody who didn't want to live in a bunker."

Who you associate with, who you live next door to, does matter in the war on terror. Ask all the innocent people, knowingly or unknowingly, living in the same buildings with the targets of drone missles.

Ask those who've had their doors kicked in. Who might wish to express themselves, but who have learned to keep quiet for their own safety ... who are currently living in a bunker-type mentality.

If it were easy to assume such risks, Ayaan Hirali would not be such a hero to many. Her neighbors have the same opportunity to decide for themselves and their families how much they are willing to risk to fight for a principle. Sometimes people legitimately disagree on issues of principle, and have different expectations of what their actions will bring. That's life.
5.10.2006 6:55am
anonymous coward:
If the government is putting likely targets of a terrorist attack next door to you, doesn't that reduce the value of your property? Why, to an American libertarian, wouldn't this qualify as a taking? (Because state power is swell as long as it's related to national security?)
5.10.2006 8:28am
Steve:
1.5 - ...the State is prepared to compensate residents for the diminished value of their apartments.
5.10.2006 9:33am
Daniel Chapman (mail):
Wow. That was the best slap-down of a snarky post I've ever seen.
5.10.2006 10:00am
Preferred Customer:

1.5 - ...the State is prepared to compensate residents for the diminished value of their apartments.



So was the City of New London.
5.10.2006 10:17am
Steve:
...and it was a taking in that case too, right?
5.10.2006 10:33am
abb3w:
So, hypothetically... suppose Pisang Ceylan, a convicted member of the Islamic terrorist group Al'Banana is released from prison after completing his sentence resulting from the 1988 Fruit Market plot. While he and his various Islamic visitors have no proven current association with Al'Banana, it is widely believed by intelligence analysts that he remains unreformed, that he is planning new terror activity, and that some of his new associates are previously unidentified Al'Banana members.

Could a case be similarly made forcing Pisang to move, on the grounds that his neighbors also feel threatened by his mere presence?
5.10.2006 11:43am
Hans Bader (mail):
The decision is indefensible, and not as limited as some are suggesting.

Some of the above posts suggest that this was a state-created danger case, and if the state hadn't bought the apartment, the danger wouldn't be actionable.

And that a tenant like Ms. Ali couldn't be forced out of her apartment by the "Human Rights Convention" for having political views that attracted hostility from religious extremists, if her tenancy were not brought about by the government, since the Convention only applies to state-created dangers, not privately-created dangers.

I doubt that. The state action doctrine does not apply in European law the way it does in American law under the Supreme Court's DeShaney decision, which says that the government only has to protect citizens from it, and not other private citizens.

In America, for example, DeShaney and the state action doctrine are commonly employed to throw out lawsuits by women complaining that the state failed to anticipate or respond to violence by their estranged boyfriends, since an estranged boyfriend is not a state actor. (Often, they argue that the local police department should have dropped everything and credited their bare allegation, even when it occured in the course of a bitter divorce or custody dispute where false allegations are common).

But the European "human rights" courts take the opposite view, saying the state has to protect private citizens from other private citizens in such situations, since private citizens have a "right" to be protected against even purely private action, not just state action. DeShaney is not good law in Europe.

So even if Ms. Ali had entered into her tenancy without any assistance from the Dutch government, and the Human Rights Convention might well be able to be employed to force her out of her apartment (even if the landlord, unlike the other tenants, was willing to take the risk of having her as a tenant).
5.10.2006 11:49am
lesterstudent (mail):
Steve, jpaulg - the way I read the summary, the decision wasn't based on a finding of actual danger to the residents, just on the "reasonable feelings" of danger by the residents.

Obviously, the latter is much more concerning than the former, even if it is state action.
5.10.2006 12:37pm
HLSbertarian (mail):
If Hans is correct on the state action issue, the last leg this decision possible had to stand on is gone. Will whose "human right" gets protected in each particular case just depend on who brings suit first?
5.10.2006 12:51pm
TomHynes (mail):

Compare the article in today's L.A. Times on the government providing housing for child molesters and local residents unsucessful objections. Are the Dutch interested in a trade?
5.10.2006 1:45pm
Gary McGath (www):
I don't know Dutch, but by analogy to German, "woonrechten" is probably "tenants' rights."
5.10.2006 2:00pm
Victor Emmanuel:
An American court might rule differently than the Dutch court. By and large, American policy is to dismiss and overrule neighbors' concerns about risks posed by people the government seeks to place in housing. There are numerous cases on point, and this policy was codified in the Fair Housing Amendments Act of 1988, 42 U.S.C. 3604(f)(1) et. seq.
5.10.2006 4:03pm
TechieLaw (mail) (www):
Here's another way of looking at it:

Imagine a black family attempting to move into an all-white apartment building in the South during the 50s.

Should a court have forced them to move because of fears that the black family's apartment would be firebombed?
5.10.2006 5:35pm
Cheburashka (mail):
Am I the only lawyer left on Earth who is aware of the existence of the common law cause of action for nuisance?
5.10.2006 7:31pm
Bob Smith (mail):
The Netherlands isn't a common-law jurisdiction, it's a civil-law jurisdiction. As I understand civil law, generally if it's not written, black-letter law you have no case. It's why the California Civil Code is so amazingly huge compared to that of other states: CA tried to turn itself into a civil-law state, or as much as it could considering it's part of the US, and in civil law every nuance, corner-case, or distinguishing fact must be codified.
5.10.2006 7:44pm
Hans Bader (mail):
Common law causes of action (such as a nuisance action) cannot be enforced by the courts in a way that violates the First Amendment.

The Supreme Court expressly held in New York Times v. Sullivan (1964), that the award of damages in a common law cause of action such as defamation is subject to First Amendment limits. (It earlier applied the same idea to court injunctions in defamation cases in Near v. Minnesota).

It applied that to other common law torts more closely resembling nuisance, such as interference with business relations, in the NAACP v. Claiborne Hardware decision in 1982.

And it used the First Amendment to cut back on the common law tort of intentional infliction of emotional distress in Hustler Magazine v. Falwell (1988), even though both parties to that case, as in most common law actions, were private parties.

Court action enforcing tort laws is state action.
5.10.2006 8:41pm
Cheburashka (mail):
You're both wrong. First, nuisance law has civil law counterparts.

Second, nuisance law has nothing whatsoever to do with the 1st Amendment or Sullivan, which in turn have nothing whatsoever to do with the case at hand. The closes the court has ever come to holding that real property rights are affected by the 1st Amendment has been giving unions very limited access to distributing leafletts to employees and "company towns," and the last of either of those cases was a half-century ago.

Apparently I am the last lawyer on Earth who's familiar with the common law of nuisance.
5.10.2006 10:40pm
Eugene Volokh (www):
Cheburashka: I thought I was familiar with the common law of nuisance, and I've never heard of its being applied to conclude that being a potential target of violent attack by others -- through no criminal act of your own -- makes you a nuisance. Am I missing something? Can you point me to any case in which a court has said, "A's use of his property to live on constitutes an actionable nuisance, because criminals are gunning for A and his neighbors might get caught in the crossfire"?

Also, if the proper analogy here is nuisance, then Hans is right, no? Under this logic, it's not just unconstitutional for the government to move Ms. Ali into the apartment building -- it would have been tortious for her to move into the apartment building, or to stay in the apartment building in which she lived. To avoid legal liability, she'd have to move into an isolated house that's so far from neighbors that a bomb blast won't injure them. Can that possibly be the proper legal rule?
5.11.2006 3:56am
Hans Bader (mail):
The Dutch court's precedent here is terrible, and defending it on the grounds that Ms. Ali's presence was a "nuisance" because others threatened her, as one commenter above appears to do, is even worse.

Under that horrible logic, the people who sheltered Anne Frank from genocide would have been liable for nuisance, since their courageous act exposed them and their neighbors to vicious reprisals from the Gestapo. The notion that they should have turned a blind eye to the Holocaust instead is truly twisted.

Don't blame the victim. It's immoral and (when applied by the government to people victimized for their speech) at odds with well-settled free-speech principles. Yet the Dutch court disgracefully did just that, using the power of the state.

Any "nuisance" here is the product of threats by jihadist terrorists, not Ms. Ali, who only wanted a place to live.

They are the ones who should be subject to court action, not her.

The idea that Ms. Ali should be forced out of her home because of threats against her by terrorists is simply outrageous and a classic example of blaming the victim.

Claiming that the recipient of threats is responsible for a "nuisance" based on those threats is like claiming a rape victim should be held financially liable for the costs of incarcerating her rapist.

The Supreme Court rejected similar (but not as pathetically weak) arguments when it held in Terminiello v. Chicago (1949) that speakers could not be silenced to prevent public turmoil, and when it held in Forsyth County v. Nationalist Movement (1992) that controversial speakers cannot be charged more money for police protection based on possible violence in response to their speech.

The Supreme Court's decisions recognizing free speech rights in company towns have nothing to with this case, since those decisions expanded free speech rights rather than contracting it.

They did not involve whether the state can act to suppress free speech to protect private property rights (as the commenter defending the Dutch court's decision apparently advocates) but rather whether free speech is protected in situations where the private entity, such as a company town, is acting almost like a state actor subject to constitutional constraints.

It is wrong to say that the state can use one person's property rights as a pretext to punish another person for their speech. It is true that the Constitution protects private property rights from STATE action, and business relationships have been recognized in certain contexts as a constitutionally protected property interest.

Yet the Supreme Court made clear in the Claiborne Hardware case that such property interests could not override the right to free speech on matters of public concern by those who, in criticizing a business, harm its property interests. It held that the common law tort of interference with business relations was trumped by the First Amendment, even though the case was a lawsuit between private parties.
5.11.2006 12:34pm