UTRECHT COURT
Sector Administrative Law

Reg. Nrs.: SBR 03/1408 VV

Ruling of the judge for provisional measures [voorzieningenrechter] of the Utrecht court on the request for provisional measure [or benefit] ("voorziening") in the case between

J.M.C. Sison, residing in Utrecht,
Plaintiff

And

The Minister of Finances,
Defendant

________________________________________________________________________

1. INTRODUCTION

1.1 The request for a provisional measure is directed against the defendant's decision of 16 May 2003, wherein the defendant had declared the plaintiff's complaints against his [defendant's] decision of 7 March 2003 not grounded. In the last-named decision the defendant rejected the request of the Utrecht municipality for an authorisation in accordance with Article 6 of the European regulation no 2580/2001 (hereafter: the Regulation) for the purpose of providing benefits to the plaintiff on the basis of the Arrangement for Reception of Asylum Seekers (hereafter: ROA), consisting of an allowance to the amount of Euro 201,37, accommodation, a legal liability insurance and a medical insurance.

1.2 The request was handled in a hearing on 1 July 2003, where the plaintiff appeared in person, assisted by Atty. H. Langenberg and Atty. D. Gurses, lawyers in Utrecht. The defendant had himself represented by Atty. L.M.Quist, active in the Department of Integrity of the Ministry of Finances, assisted by Atty. A.B. van Rijn, lawyer in The Hague.

2. CONSIDERATIONS

2..1 Pursuant to Article 8:81 of the General Law on Administrative Law (Awb), a judge for provisional measures who is competent or can be competent in the main case, can decide on a provisional measure, if an appeal is made in a court against a decision and in advance of a possible appeal in a court, a complaint or an administrative appeal is made, if immediate speed considering the interests of the concerned [person} requires it.

2.2 Insofar as this test brings with it that a judgment is given on the case in the basic procedure ("bodemprocedure"), this judgment has a provisional [or temporary] character and does not bind the court in its decision in that procedure.

2.3 Considering that timely appeal has been made against the decision to which the request has reference and this court shall be authorized for the main case, there is no impediment to consider the request for a provisional measure as admissible.

2.4 Article 2, first par, annex an under b, of the Regulation reads as follows: "Unless allowed on account of Articles 5 and 6, assets, other financial and economic means shall not be made available, directly or indirectly, to a natural or legal person, group or entity or in their behalf, who is one of those in the list in Article 2, par. 3."
Pursuant to the third paragraph of this article, the Council of the European Union determines the list of persons, groups and entities to which this Regulation is applicable. This list comprises - for so far it is of importance here - natural and legal persons, groups or entities which commit terrorist acts, attempt to commit, participate in such or facilitate the commission of these acts, also the natural persons in the name of or upon instruction of the aforementioned natural and legal persons, groups or entities.
Article 6 of the Regulation provides that notwithstanding the provisions of Article 2 and with the aim of protecting the interests of the Community, the authorized institutions of a member state can grant specific authorisations to (among others) release [or free] or make available financial and other economic means to a person on the list as meant in Article 2, third paragraph, or to provide this person with financial services.
In the common standpoint of 28 October 2002/847/GBVB (Pb EG L295) the Council of Europe placed the plaintiff in the list stated in Article 2, par. 3.

2.5 In a letter of 30 October 2002, the Utrecht municipality requested the defendant for an authorisation pursuant to Article 6 of the European regulation no. 2580/2001, for the purpose of continuing to provide benefits to the plaintiff on the basis of the ROA, consisting of an allowance of Euro 201,37, accommodation, a legal liability insurance and medical insurance. For this the municipality stated among others that the EU sanction regulations published on 30 October 2002, in combination with the Regulation, instructs that specific restrictive measures against specific persons and entities with the aim of the fight against terrorism, that leads to the prohibition of providing any means at all to the plaintiff. Since the means that the Utrecht municipality provides to the plaintiff are only meant to take care of his basic needs for life, there would be humanitarian reasons for granting this request, according to the municipality.

2.5 In the decision of 7 March 2003 the defendant rejected the above-mentioned request for an authorisation. For this, the defendant considered among others that the cabinet policy on this is directed to persons who are listed,, after unanimous decision have been put on the list, in the EU list so that they are not given any financial means as described in Article 1 of the regulation. At the same time, it is noted that the Ministry of Justice, also on the occasion of the above-mentioned cabinet standpoint, has the intention to terminate the right of Mr. Sison to ROA-allowances. In the contested decision, the defendant has maintained this standpoint.

2.6 In the name of the plaintiff, it is presented briefly summed up that the decision is in violation with the starting point stated in EU-regulation 561/2003 and UN-resolution 1452 (2002) that means for primary life needs on the basis of humanitarian reasons can be provided in order to avoid a violation of fundamental rights. At the hearing it was told that the plaintiff actually resides in the residence of his wife who has at her disposal a welfare benefit pursuant to ABW.

2.7 The judge for provisional measures does not make a ruling on whether the actual situation of the plaintiff such is that a measure ["voorziening" or benefit] is appropriate, considering that already on the basis of the following [point] there is no reason to decide on a temporary measure. The request is after all directed to getting an authorisation for the purpose of making possible the actual giving of the allowed ROA benefits. In its decision of 23 May 2003, which in the name of the mayor and councilors of the Utrecht municipality, the Board of the COA has made, the ROA-benefits allowed to the plaintiff have been terminated with immediate effect and the plaintiff is told within 3 days to vacate the ROA-residence he is staying in. In the decision of 1 August 2000 the plaintiff is told to leave the Netherlands. The appeal against this decision was declared not grounded in the ruling of the Aliens Chamber of the court of The Hague of 28 November 2002.

2.8 In the decision of 23 May 2003 it is expressly noted that the submission of an appeal or a request for temporary measure does not have a suspending effect. Moreover, it did not come out from the pieces nor out of what was treated in the hearing that an appeal has already been submitted. Considering now that we take the situation as starting point that the ROA-benefits allowed to the plaintiff have been terminated, granting of the request for a temporary measure would not have the effect which the plaintiff wants.

2.9 Considering the legal questions of principle which are for discussion in this case and the connection with a possible procedure against the decision of 23 May 2003 regarding the termination of the ROA-benefits it is further judged that the current case does not lend itself for application of the provision of Article 8:86 of the Awb [General law on administrative law]. Therefore there shall at this time be no ruling made on the appeal of the plaintiff.

2.10 Considering the above considerations, finally, no reason is seen to make a sentence on the defendant to bear the process costs of the plaintiff.

2.11 Therefore, it is decided as follows:

3, DECISION

The judge for provisional measures:

rejects the request for a provisional measure.

So established by mr. T. Dompeling, judge for provisional measures, and announced publicly on 15 July 2003.

The clerk of court ("griffier) The judge for provisional measures:

(Sgd.) mr. M.E. Companjen (Sgd.) mr. T. Dompeling

Copy sent to the parties on: 16 Jul 2003