There is no convention or regulation that regulates jurisdiction in this case. Therefore, the jurisdiction of the Dutch court must be assessed based on Part 1 Chapter 1 1 Rv.n

This follows from Section 1 Rv.

“notwithstanding Section 13a of the General Provisions (Kingdom Legislation) Act the jurisdiction of the Dutch court is governed by the following provisions.”

Section 13a of the Wet ABn

General Provisions (Kingdom Legislation) Act.

Functional immunity from jurisdiction

Functional immunity from jurisdiction is derived from State immunity, one of the fundamental principles of customary international law:

“the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.”n

See International Court of Justice (ICJ) 3 February 2012, ICJ Rep. 2012 (Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening), hereinafter: Jurisdictional Immunities, para. 57.

State immunity only applies to acts carried out in the exercise of state authority (acta iure imperii), not to the acts of a State in interactions with private individuals on an equal basis (acta iure gestiones), such as regular commercial transactions. The nature of the act determines to which category it belongs.n

Cf. Supreme Court 22 December 1989, ECLI:NL:HR:1989:AD0998, NJ 1991, 70.

“the core area of State sovereignty such as the acts of a soldier on foreign territory which, of their very nature, may involve sensitive issues affecting diplomatic relations between States and national security.”n

ECHR 21 November 2001, no. 31253/96, (McElhinney v. Ireland), para. 38.

This applies to both military operations in a State’s territory and in occupied territories.

State immunity and personal immunity from jurisdiction are customary international-law rules of a procedural nature, which are separate from and of a different nature than the substantive rules with which the violation of the norm underlying the claim must be assessed:

“The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.”n

Jurisdictional Immunities, para. 93.

In light of the aforementioned nature, contents and rationale of functional immunity of jurisdiction, this also applies to this form of immunity.

Both the ICJ and the ECHRn

European Court of Human Rights.

“Under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the law of armed conflict.”n

Jurisdictional Immunities, para. 91.

The ECHR arrived at the same conclusion in the cases of Al Adsani,n

ECHR 21 November 2001, 35763/97 (Al Adsani/United Kingdom), hereinafter: Al Adsani.

“Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a state no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.”n

Al Adsani, para. 61.

The rulings in the Kalogeropoulou and Jones cases contain considerations along the same lines.

The Jones case, in which the ECHR investigated customary international law as it applied in 2006, also revolved around functional immunity from jurisdiction.n

Jones, para. 196.

“Since an act cannot be carried out by a State itself but only by individuals acting on the State's behalf, where immunity can be invoked by the State then the starting-point must be that immunity ratione materiae applies to the acts of State officials. If it were otherwise, State immunity could always be circumvented by suing named officials. This pragmatic understanding is reflected by the definition of ‘State’ in the 2004 UN Convention (…), which provides that the term includes representatives of the State acting in that capacity. The ILC Special Rapporteur, in his second report, said that it was ”fairly widely recognised” that immunity of State officials was ”the norm”, and that the absence of immunity in a particular case would depend on establishing the existence either of a special rule or of practice and opinio juris indicating that exceptions to the general rule had emerged (…).”n

Jones, para. 202.

The ECHR concluded:

“(…) while there is in the Court’s view some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority is, as Lord Bingham put it in the 2006 House of Lords judgement, to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead.”n

Jones, para. 213.

The ECHR has expressly left the option of developments in customary international law open, both as regards State immunity and functional immunity from jurisdiction, as is evident from this consideration:

“However the State practice is in a state of flux, with evidence of both the grant and the refusal of immunity rationae materiae in such cases. (…) International opinion on the question may be said to be beginning to evolve, as demonstrated recently by the discussions around the work of the ILC in the criminal sphere. This work is ongoing and further developements can be expected.”n

Jones, para. 213.

Individual responsibility

Individual responsibility, which [claimant] invokes, is described by the ILC as follows:n

International Law Commission.

“individual responsibility” has acquired an accepted meaning in the light of the Rome Statute and other instruments; it refers to the responsibility of individual persons, including State officials, under certain rules of international law for conduct such as genocide, war crimes and crimes against humanity.”n

Commentary to Article 58 of the Articles on State Responsibility (ASR) of the ILC

In international courts, individual responsibility applies to defendants prosecuted before these courts for international crimes. This legal concept was developed after World War II in the statutes and jurisprudence of ad hoc tribunals prosecuting persons accused of international crimes, such as the Nuremberg Tribunal, the ICTYn

International Criminal Tribunal for the former Yugoslavia.

“Beginning with the Nuremberg Charter, the norm of immunity was revised in favour of jurisdiction of international courts to try Heads of State and other senior public officials, for violation of international criminal law.”n

ICC Case William Samoei Ruto and Joshua Arap Sang, case ICC-01/09-01/11-777, Trial Chamber V (A), decision on Mr. Ruto’s request for excusal from continuous presence at trial, of 18 June 2013, para. 67.

Individual responsibility can therefore be seen as an exception to or special rule of personal and functional immunity from jurisdiction in international courts.n

Cf. Kreß, Claus and Prost, Kimberly, in Triffterer, Otto, (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2nd edn, 2008)

p. 1608.

The source of law of individual responsibility and the associated limitation of immunity from jurisdiction for incumbent and former office holders is the statute or founding treaty in the ad hoc tribunals, sometimes in conjunction with a binding resolution of the UN Security Council. In the case of the ICC, individual responsibility is laid down in Article 25 of the Rome Statute.n

Rome Statute of the International Criminal Court of 17 July 1998, Treaty Series 2000, 120

“In sum, the Appeals Chamber finds that there was no rule of customary international law that would have given Mr Al-Bashir immunity from arrest and surrender by Jordan on the basis of the request for arrest and surrender issued by the Court.”n

ICC Judgment in the Jordan Referral re Al-Bashir Appeal, ICC-02/05-01/09-397-Corr of 6 May 2019, para. 117.

Individual responsibility must be distinguished from and exists alongside the attribution of conduct to States. This starting point is laid down in Article 58 Articles on State Responsibility (ASR) van de ILCn

International Law Commission.

“These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”.

This also follows from the mirror-image Article 24 para. 4 of the Rome Statute:

“No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”

[claimant] correctly asserts that in the case of individual responsibility of a incumbent or former office holder prosecuted before an international court, there is dual attribution or parallel responsibility, both of/to the State and of/to the incumbent or former office holder suspected of an international crime.

If individual responsibility and dual attribution is a rule of customary international law – which is a question that arises, but can remain undiscussed – this rule would only apply to the prosecution of incumbent or former office holders before international courts. National courts take a fundamentally different position than international courts. National courts are organs of sovereign States which when prosecuting subjects of foreign states function in the horizontal relationship between States, with the applicable customary international-law principle of equality of States. State immunity and the derivative personal and functional immunity from jurisdiction therefore are the starting points for national courts. By contrast, international courts do not function in the horizontal relationship between States. So, the principle of equality of States and the ensuing immunity from jurisdiction for current and former office holders therefore does not apply to international courts. This is expressed in the considerations of the SCSLn

Special Court for Sierra Leone.

“derives from the equality of sovereign States and therefore has no relevance to international criminal tribunals which are not organs of a State but derive their mandate from the international community”n

Taylor, case SCSL 2003-01-1, Appeals Chamber decision on immunity from jurisdiction, of 31 May 2004 (hereinafter: Taylor), para. 51.

This entails that:

“the sovereign equality of States does not prevent a Head of State from being prosecuted before an international criminal tribunal or court”.n

Taylor, para. 52.

The ICC Appeals Chamber also highlights “the different character of international courts when compared with domestic jurisdictions”:

“While the latter [national courts, added by the district court] are essentially an expression of a State’s sovereign power, which is necessarily limited by the sovereign power of the other States, the former, when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole. Accordingly, the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court.”n

Al-Bashir, para. 115.

This is explained in more detail in the Concurring opinion to the Al-Bashir ruling:

“(…) judges in national courts exercise jurisdiction in the national forum, in their capacity as delegates for purposes of exercise of sovereign authority within the national forum. In contrast, judges of international courts operate on an entirely different footing of delegated jurisdiction. They are not delegates of any national sovereign forbidden to exercise jurisdiction over his or her sovereign equals. They exercise jurisdiction on behalf of the international community, such as represented by the aggregation of States who have authorised those international judges to exercise the jurisdiction in question. Thus, when the ICC ‘exercises jurisdiction’ (…) it does so on behalf of the international community represented in the membership of the Rome Statute.”n

ICC-02/05-01/09-397-Anx1-Corr, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa (hereinafter: Concurring opinion), para. 53.

The individual responsibility as it applies in international courts must be distinguished from and exists alongside the personal immunity from jurisdiction as it applies in national courts:

“(…) these rationales that explained the rule of foreign immunity at the horizontal level are not compromised by proceedings before an international court – certainly not the ICC. In other words, the rationale of perfect equality between States and their absolute independence from each other remains undisturbed, if a State is subjected to the jurisdiction of an international court.”n

Concurring opinion, para. 435.

An incumbent or former office holder accused of international crimes may have individual responsibility before an international court, while he would enjoy personal immunity from jurisdiction in criminal proceedings before a national court of a foreign State. The ICJ also follows this reasoning on personal immunity from jurisdiction in the Arrest Warrant case:

“It should further be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal

jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions.”n

Arrest Warrant, para. 59.

An office holder is not exempt from all criminal responsibility:

“The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.”n

Arrest Warrant, para. 60.

An office holder also does not necessarily go unpunished – insofar as relevant:

“Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.

First, such persons enjoy no criminal immunity under international law in their own countries and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law.

(…)

Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”n

Arrest Warrant, para. 61.

The consideration in the Blaškić case, as cited by [claimant] , the ICTY mentions the immunity from jurisdiction in national and international courts in the same breath:

“The general rule under discussion is well established in international law and is based on the sovereign equality of States (par in parem non habet imperium). The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity.”n

ICTY 29 October 1997, IT-95-14, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial (Prosecutor v. Blaškić), para. 41.

However, in subsequent judgementsn

Cf. Radovan Karadzic, Ratko Mladic and Mico Stanisic, case IT-95-5-D, formal request for deferral of jurisdiction addressed to the Republic of Bosnia and Herzegovina, judgment of the Trial Chamber, 16 May 1995, Judicial Reports 1994-1995, para. 24; Slobodan Milosevic, case IT-02-54-T, preliminary exceptions, decision of the Trial Chamber of 8 November 2001, para. 31. Anto Furundzija, case IT-95-17/1-T, judgment of Trial Chamber II, 10 December 1998, ibid., 1998, para. 140. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, cases IT-96-23-T and IT-96-23/I-T, judgment of Trial Chamber 1, 22 February 2001, para. 494.

“It may be the case (it is unnecessary to decide here) that, between States, such a functional immunity exists against prosecution for those acts, but it would be incorrect to suggest that such an immunity exists in international criminal courts.”n

Prosecutor v. Krstić, case IT-98-33, ICTY A. Ch., 1 July 2003, para 26.

The Special Rapporteur of the ILC notes the following on the jurisprudence of the ICTY:

“It is worth noting, however, that in those cases the Tribunal seems to limit the exception to the exercise of its jurisdiction, without extending it to cases brought before domestic courts.”n

Fifth Report, para. 99, in which the Special Rapporteur makes reference to judgements of the ICTY referred to in footnote 48.

Limitation of functional immunity from jurisdiction in criminal proceedings before national courts as a rule of customary international law?

The required State practice (usus) can take many forms and may comprise acts of all State organs. It is required that the State practice be extensive and virtually uniform,n

Cf. North Continental Shelf, para. 74

“It is clear that the Court cannot legislate, (…) it states the existing law and does not legislate.

This is so even if, in stating and applying the law, the Court necessarily has to specify its scope

and sometimes note its general trend.”n

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 18.

There is no disagreement on personal immunity from jurisdiction before national courts; the discussion focuses on functional immunity from jurisdiction:

“(…) it should be emphasised that delegations welcomed the conclusion that limitations to immunity only apply to immunity ratione materiae and that immunity ratione remains fully applicable.”n

Sixth report on immunity of State officials from foreign criminal jurisdiction, by Concepción Escobar Hernández, Special Rapporteur, 70th Session ILC (2018), UN Doc. A/CN.4/722, p. 5

The question if functional immunity from jurisdiction must be limited when prosecuting international crimes before national courts has been a source of debate and a deep difference of opinion for decades:

“The issue of limitations and exceptions to immunity is undoubtetly the most controversial and politically sensitive aspect of this topic. It is therefore not surprizing that the discussion both in the International Law Commission and in the Sixth Comittee of the General Assembly was very heated and reflected the differences between members of the Commission and between States on this question.”n

Sixth report on immunity of State officials from foreign criminal jurisdiction, by Concepción Escobar Hernández, Special Rapporteur, 70th Session ILC (2018), UN Doc. A/CN.4/722, p. 5

Article 7 paragraph 1 DAISFJ reads as follows:

Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law:

A profound difference of opinion on Article 7 paragraph 1 DAISFJ existed in the ILC. Contary to convention, no consensus was reached on the draft article. Instead, a vote was held. The Special Rapporteur did not observe a relevant State practice, but concluded that there is a trend, which was reason for the backers to endorse Article 7 paragraph 1 DAISFJ:

“(…) there has been a discernible trend towards limiting the applicability of immunity from jurisdiction ratione materiae in respect of certain types of behaviour that constitute crimes under international law. This trend is reflected in judicial decisions taken by national courts which, even though they do not all follow the same line of reasoning, have not recognized immunity from jurisdiction ratione materiae in relation to certain international crimes. In rare cases, this trend has also been reflected in the adoption of national legislation that provides for exceptions to immunity ratione materiae in relation to the commission of international crimes. This trend has also been highlighted in the literature, and has been reflected to some extent in proceedings before international tribunals.”n

Report of the International Law Commission, Sixty-ninth session (1 May-2 June and 3 July-4 August 2017), para. 141, pag.178-180.

The ‘no’ voters contest the existence of a trend and are of the opinion that:

“(…) the Commission, by proposing draft article 7, was conducting a “normative policy” exercise that bore no relation to either the codification or the progressive development of international law. For those members, draft article 7 is a proposal for “new law” that cannot be considered as either lex lata or desirable progressive development of international law. Second, those members of the Commission also stressed the difference between procedural immunity from foreign jurisdiction, on the one hand, and substantive criminal responsibility, on the other, and maintained that the recognition of exceptions to immunity was neither required nor necessarily appropriate for achieving the required balance. Rather, in the view of those members, impunity can be avoided in situations where a State official is prosecuted in his or her own State; is prosecuted in an international court; or is prosecuted in a foreign court after waiver of the immunity. Asserting exceptions to immunity that States have not accepted by treaty or through their widespread practice risks creating severe tensions, if not outright conflict, among States whenever one State exercises criminal jurisdiction over the officials of another based solely on an allegation that a heinous crime has been committed.”n

Report of the International Law Commission, Sixty-ninth session (1 May-2 June and 3 July-4 August 2017, para. 141, p. 182.

A trend is not a general State practice. Since there is no general State practice nor an opinio iuris, Article 7 paragraph 1 DAISFJ does not codify a rule of customary international law. This also follows from the remark of the Special Rapporteur that:

“the draft articles, similar to other projects of the Commission, contained elements of both codification and progressive development and that they should be assessed in that light.”n

Report of the International Law Commission, Sixty-ninth session (1 May-2 June and 3 July-4 August 2017), para. 134, p. 174.

Incidentally, there is also no ground to assume that under customary international law functional immunity from jurisdiction is limited when prosecuting international crimes before national courts.

Dutch opinion

In 2016 the Dutch government informed the ILC as follows:

“The Netherlands further considers that functional immunity does not extend to the commission of international crimes committed by those concerned in their official capacity. See for example the decision of the Court of Appeals of Amsterdam of 20 November 2000, paragraph 4.2 (…).”n

ECLI:NL:GHAMS:2000:AA8395

This is not so much an exception to immunity but rather a confirmation that functional immunity only applies to acts performed in the course of a person’s official (governmental) function and that the commission of international comes, by definition, cannot be an official function.”

In 2017 the Dutch government repeated:

“It is the position of the Kingdom of the Netherlands that international crimes fall inherently outside the scope of acts in official capacity and therefore should not be susceptible to the plea of immunity.”n

Statement by Dr. René Lefeber (Legal Adviser of Foreign Affairs, Kingdom of The Netherlands) United Nations General Assembly 72nd Session, Sixth Committee Agenda item 82 Report of the International Law Commission.

In 2019 the Dutch government made it known that:

“The Netherlands recognizes that immunity ratione materiae is not absolute, and that exceptions exist to immunity ratione materiae. This would be the case with the commission of international crimes.”n

Comments and observations by the Kingdom of the Netherlands, 13 February 2019.

[claimant] also refers to criminal cases against a former Afghan generaln

The Hague Court of Appeal, 29 January 2007, ECLI:NL:GHSGR:2007:AZ7147 and Supreme Court 8 July 2008, ECLI:NL:HR:2008:BC7418.

“Committing very serious criminal offences such as those in this case cannot after all be classed as one of the offical duties of a Head of State.”

Extend rules in criminal actions to civil proceedings?

[claimant] ’s argument regarding the convergence of criminal law and civil law does not help him. The court does not rule out per se that developments in customary international law as regards immunity from jurisdiction in criminal cases before national courts may be relevant to and may influence customary international law in this respect in civil proceedings before national courts. That is also the approach of the ECHR, which refers to developments in criminal law in its expectation regarding developments in functional immunity from jurisdiction in civil proceedings with claims based on international crimes expressed in the Jones case.n

Jones, para. 213.

“(…) although at first glance there seems to be a clear distinction between exercising criminal and civil jurisdiction over officials of a foreign State, they do have enough features in common for consideration of the topic to take into account existing practice in relation to immunity of State officials and of the State itself from foreign civil jurisdiction.”n

Preliminary report on immunity of State officials from foreign jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur ILC, UN Doc A/CN.4/601, p. 172, para. 55.

Use of margin of appreciation?

Article 6 ECHR

State immunity has a legitimate purpose:

“to promote comity and good relations between States through the respect of another State’s sovereignty”n

Al Adsani, para. 54.

This legitimate purpose also extends to the derivative functional immunity from jurisdiction:

“(…) the immunity which is applied in a case against State officials remains ‘State’ immunity: it is invoked by the State and can be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials was intended to comply with international law on State immunity, then as in the case where immunity is granted to the State itself, the aim of the limitation on access to a court is legitimate.”n

Jones, para. 200.

The following applies to the proportionality of the limitation ensuing from rules of customary international law:

“Since measures which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court, the sole matter for consideration in respect of the applicants' complaint is whether the grant of immunity ratione materiae to the State officials reflected such rules. The Court will therefore examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia's claim of State immunity in respect of the State officials; and, if so, whether there is evidence of any special rule or exception concerning cases of alleged torture.”n

Jones, para. 201.

The only assessment a court must carry out in examining the proportionality requirement is whether or not the functional immunity from jurisdiction for [defendant I] and [defendant II] is in agreement with customary international law. The court has established previously that this is the case. The proportionality requirement has therefore been met.

[claimant] also makes reference to the superfluous reasoning of the ECHR in the Naït-Liman case:

“Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.”n

ECHR 15 March 2018, 51357/07, Naït Liman v. Switzerland, para. 220.

From this [claimant] cannot derive an argument to assess – in the context of an examination against Article 6 ECHR – the availability of an alternative legal procedure in Israel, which he contests, considering the fact that the Naït-Liman case did not concern immunity from jurisdiction but the question whether or not the lack of a forum necessitatis provision was contrary to Article 6 ECHR.

Conclusion

Costs of the proceedings

As the party found against, [claimant] is ordered to pay the costs of the proceedings.

On the part of [defendant I] and [defendant II] estimated up to this judgment at € 7,763 (namely € 1,565 in court fees and € 6,198 in lawyer’s fees (2 items at € 3,099, according to rate VIII)), plus statutory interest claimed by [defendant I] and [defendant II] . There is no ground for an order to pay the subsequent costs, since the cost award also constitutes an entitlement to enforcement for these subsequent costs. The court will estimate the subsequent costs in accordance with the applicable court-approved scale of costs.

orders [claimant] to pay the costs of the proceedings, on the part of [defendant I] and [defendant II] estimated up to this judgment at € 7,763 in court fees incurred so far and € 157 in subsequent costs, plus € 82 in case of service, the amount of

€ 7,763 as well as the subsequent costs plus statutory interest from the fifteenth day after the date of this judgment, if [claimant] has not paid these costs before that date, until the date on which payment is made in full;

This judgment was passed by mr. L. Alwin, mr. B. Meijer and mr. J.S. Honée and pronounced in open court on 29 January 2020.