G.F.S. v. Kingdom of the Netherlands

The author of the communication is G.F.S., a national of the Kingdom of the Netherlands born in 1974 in Curaçao. He claims that the State Party has violated his rights under articles 2 (3), 10, 14, 15, 17, 25 and 26 of the Covenant. The Optional Protocol entered into force for the State Party on 11 March 1979. The author is represented by counsel.

The author was the first Prime Minister of the newly autonomous Curaçao within the Kingdom of the Netherlands. He held the position from 10 October 2010 to 29 September 2012. The author founded and pre-financed his own political party, the Movementu Futuro Kòrsou (MFK) in July 2010, prior to the parliamentary election of August 2010. He claims that, during the electoral campaign and after having been elected, he, his party and some of its members and supporters were relentlessly targeted by the State Party through a number of bodies and agents, because of their perceived threat to the status quo. The author notes that it was alleged that certain ministers, including him, as Prime Minister, failed the screening by the National Security Service and should not have been sworn in. He claims, however, that neither the Constitution of Curaçao nor any other law prescribed any screening as a condition for the appointment of Cabinet ministers.

In 2012, a statute was passed in Curaçao according to which it is a felony punishable with imprisonment to nominate someone who is officially a suspect in a criminal investigation as a Cabinet minister. The author claims the law was passed to keep him and his party out of office.

The author was arrested in Curaçao in May 2014 on charges of bribery, moneylaundering and forgery. The prosecution services alleged that the author had unlawfully received money from a Sint Maarten casino owner to fund his political party, the Movementu Futuro Kòrsou, through his partner’s United States of America-based bank account. The author claims that the financial transactions were transparent, lawful and consistent with common practice, as all political parties are self-funded in Curaçao. It is thus the norm that political parties are funded by third party donors and the Movementu Futuro Kòrsou was no exception. The author claims that the criminal charges against him were in effect a means to exclude him and members of his party and supporters from the political sphere in Curaçao.

On 11 March 2016, the author was convicted on charges of bribery, money-laundering and forgery and sentenced to three years’ imprisonment. He was prohibited from standing as a candidate in elections for a period of five years by the Court of First Instance of Curaçao. He was also ineligible for appointment to a Cabinet position. The judgment was upheld on appeal on 21 July 2017 by the Joint Court of Aruba, Curaçao, Sint Maarten, and of Bonaire, Sint Eustatius and Saba. On 18 April 2018, the author appealed the judgment to the Supreme Court of the Netherlands. The appeal was rejected on 27 November 2018. On the same date as the conviction against the author became final, the President of the Parliament of Curaçao informed the author that he was no longer a Member of Parliament and that, should he have any objection to the revocation of his mandate, he was entitled to appeal the decision to the Joint Court. The author subsequently appealed the decision, arguing that his removal from Parliament violated his fundamental rights under article 25 of the Covenant. His appeal was rejected on 30 January 2019 by final decision of the Joint Court.

The author claims that the criminal investigation against him was initiated after confidential financial records had been leaked to the public domain. He claims that, on 19 October 2012, confidential documents in the possession of the Reporting Centre for Unusual Transactions of the Financial Investigation Unit of Curaçao relating to financial transactions involving him and his partner were leaked. The author notes that the Reporting Centre was created to protect the integrity of financial services in Curaçao. If the Centre finds, on reasonable grounds, that financial data is important for the investigation of moneylaundering, it must report the data to the Financial Crimes Unit of the central police authorities of Curaçao. The author contends that the most important existing safeguard in the reporting system is that financial transactions reported cannot be directly communicated to the Police or the Public Prosecutor’s Office, but rather to an independent organ, the Reporting Centre for Unusual Transactions. The Centre stands as a “buffer” between the financial institutions, on the one hand, and the police and judicial institutions, on the other.

The author and his partner’s financial transactions of 2010 had been reported to the Reporting Centre for Unusual Transactions. The Centre, following an internal investigation into the financial transactions, concluded that there was no suspicious activity and consequently did not report the protected data to the Financial Crimes Unit. In the light of the Centre’s findings, the data should have been destroyed. However, the author states that his financial data was illegally leaked into the public domain and reported to the police by a civilian, as well as through an additional anonymous complaint made to the police. He claims that, despite having been illegally obtained, those documents were relied on by the Public Prosecutor’s Office as a basis to officially initiate criminal investigations against the author and his partner. In that connection, the author notes that, according to the prosecution, a then senior prosecutor, P., in Milan, had voluntarily offered information to the Public Prosecutor’s Office in Curaçao that led to the initiation of investigations against the author. According to the prosecution, P. sent an email in mid-2012 to the Public Prosecutor’s Office in Curaçao, informing it that he had information that it might find valuable. The prosecution contended that it was on the basis of those contacts – and not the leaked Reporting Centre for Unusual Transactions documents – that investigations had been launched against the author. The author claims that the email in question was not produced at trial, however, and that P. was willing to testify on behalf of the author as to a different version of events.

The author notes that leaked confidential information, which comes into the hands of a civilian and is then communicated to the police, could potentially be used in a criminal investigation; however, that may only occur where it is shown that the public authorities have “clean hands” and that principles of procedural fairness have been respected. In his case, he claims that the information leaked to the public domain was, to the contrary, directly attributable to the public authorities themselves. The author notes that the report from a digital investigation conducted after the leak showed that the leaking of his financial data could be traced back to the authorities. The author filed a criminal complaint with the prosecution services regarding the leak from the Reporting Centre for Unusual Transactions. However, the prosecution office did not conduct an effective investigation into the leak and simply stated, almost one year later, that it could not identify the origin of the leak. The author also raised the claim of the illegal leaking of his data as evidence before the Court of First Instance and the Joint Court. However, his claims were dismissed.

The author claims that his detention in the Curaçao Centre for Correction and Detention did not conform to basic human rights detention standards and did not provide him access to any reformation and social rehabilitation programmes. He claims that prison conditions at the Centre require significant material improvement to comply with international standards, as well as improved access to healthcare, specifically mental healthcare.

The author claims that the State Party denied him the opportunity to call and examine a key witness at his trial, in violation of his rights under article 14 (3) (e) of the Covenant. On appeal, the defence repeatedly attempted to call a key witness, P., who – according to the prosecution – had offered information to the Public Prosecutor’s Office in Curaçao that led to the initiation of investigations against the author. The author argues that, if he had been able to call that witness, it would have significantly affected the criminal proceedings and the prosecution’s narrative as to the basis for the investigation of the author and could therefore have led to a different outcome.

The author further claims that, at trial, the Joint Court effectively reversed the burden of proof by requiring him to provide evidence disproving the criminal charges against him, in violation of his right to presumption of innocence under article 14 (2). He claims that it was not established that he had diverted any public funds for his or anyone else’s personal benefit. He notes that he was convicted of receiving money from a business owner in order to finance the creation of the Movementu Futuro Kòrsou, despite that being the only way of funding a political party in Curaçao. He claims that the Joint Court wrongly qualified the donation as a “gift”, implying that those donations were made for his personal profit. At the same time, the Joint Court effectively reversed the burden of proof by requiring him to demonstrate that the funds received did not represent a gift in exchange for favourable treatment of the donor.

The author claims that the State Party breached his right to equality before the courts and tribunals and to a fair and public hearing by a competent, independent and impartial tribunal, in violation of his rights under article 14 (1) of the Covenant.

The author claims that, at the time that the donation to the Movementu Futuro Kòrsou was made by the business owner, the applicable legal framework in the Netherlands Antilles and Curaçao did not prohibit the financing of political parties by third parties. After 10 October 2010, the situation changed. A new law was enacted to regulate donations to fund political parties in Curaçao. The author claims that the State Party therefore constructed a criminal charge against him for a crime that did not exist at the time of the acts for which he was charged.

The author claims that the State Party authorities arbitrarily and unlawfully interfered with his privacy, honour and reputation by leaking his confidential financial records to the public domain, in violation of his rights under article 17 of the Covenant. He argues that the interference with his privacy was not provided for by law, but was, to the contrary, in contradiction of domestic legislation that provides that transactions communicated to the Reporting Centre for Unusual Transactions by financial institutions must be kept highly confidential and must not be communicated to the authorities of the Financial Crimes Unit unless there are reasonable grounds to believe that the data may serve in the investigation of money-laundering – which was not the Centre’s conclusion in the author’s case. Moreover, the Centre’s legislation provides that financial documents must be destroyed and discarded once a determination has been made regarding their lawfulness. The author further argues that the leaking of the financial documents and the reliance by the authorities on that leaked information to initiate criminal investigations against him were not in accordance with the provisions, aims and objectives of article 17 and were unreasonable in the circumstances of the case.

The author notes that, after his conviction, his parliamentary mandate was revoked and he was also banned by the Joint Court from holding elected office for a period of five years, effectively excluding him from the general elections in 2021. He claims that the revocation of his mandate and the ban were not established by law and were grossly disproportionate to the offence for which he was convicted. The author further notes that, as he was convicted of a criminal offence, he was also banned from a position as Cabinet minister in Curaçao. He claims that this amounts to a violation of his rights under article 25 of the Covenant.

Regarding the claim that the grounds for the revocation of his parliamentary mandate were not established by law, the author argues that, before the dissolution of the Netherlands Antilles, there was no law in force in Curaçao regarding the revocation of a parliamentary mandate. The notion of such revocation was first provided for in article 45 (3) of the draft Constitution of Curaçao, which became effective on 10 October 2010, following the dissolution of the Netherlands Antilles.³ In accordance with article 45 (3) of the Constitution, a draft ordinance on the revocation of political mandates was adopted on 4 September 2010, namely the national ordinance on parliamentary disqualification. The draft ordinance was converted into an effective ordinance on 10 October 2010. According to article 6 of the ordinance, it was to enter into force at a later date to be determined by decree. However, to date, no such decree has been issued. Therefore, when the author received the notification from the Chair of Parliament that his parliamentary mandate had been revoked pursuant to said ordinance, he contested the revocation, arguing that it had no legal basis. By order of 30 January 2019, the Joint Court held that the ordinance became effective on 10 October 2010, as that was the intention of the legislator. The author argues that such legal uncertainty as to the date of entry into force of the ordinance fails to meet the standards stipulated under article 25 of the Covenant. He further claims that the judgment by the Joint Court constitutes a breach of the State Party’s obligation to afford him an effective remedy for the interference with his rights under article 25, read in conjunction with article 2 (3), as he claims that the Court arbitrarily and erroneously dismissed his challenge to the revocation of his parliamentary mandate.

3. The author notes that article 45 (3) reads as follows: “Provisions regarding the cancellation of the membership of a member of the Staten who has been sentenced to incarceration for the commission of a crime by a final judgment shall be determined by an ordinance. Such ordinance shall determine the offences for which the membership in the Staten may be cancelled and shall also include recourse for the member concerned before the Common Court of Justice”. ↩

The author claims that the State Party infringed on his right to non-discrimination by virtue of his political opinion and membership. He claims that there was a clear prosecutorial policy to legally undermine him and his political party in order to have him removed from political life. He claims that his removal from political life continued throughout his imprisonment, as his requests to hold business meetings in prison were rejected by the prison management, contrary to the rules of the Curaçao Centre for Correction and Detention.

The author further claims that the State Party used its criminal justice system to bar him from Cabinet positions and cut short his parliamentary tenure. He claims that this was the result of unacceptable inequality between the treatment afforded to Cabinet members and members of Parliament of Curaçao, on the one hand, and the treatment afforded to those of the Netherlands, on the other. He notes that, in the Netherlands, the prosecutor’s office cannot prosecute Cabinet members and members of Parliament, unless approved by the Cabinet or Parliament, as applicable. The Constitutions of Curaçao and Aruba, however, are silent on that point. The author claims that distinction can be fully attributed to the Kingdom of the Netherlands, as the Government of the Kingdom exercises supervision regarding the adoption of both the overseas countries’ constitutions and the Constitution of the Netherlands. He claims that the Government of the Kingdom failed in that supervision as concerns the difference in treatment regarding the public prosecutors’ authority to bring charges for crimes committed while in office. He argues that this unequal treatment of persons who are in the same constitutional position is in violation of article 26 of the Covenant.

On 16 October 2020, the State Party submitted its observations on admissibility and the merits of the communication. It submits that the author’s claims under articles 10 and 14 (2) should be found inadmissible for failure to exhaust domestic remedies. It submits that the author’s remaining claims are unfounded.

The State Party notes that the Kingdom of the Netherlands is a constitutional entity that consists of four autonomous countries: Aruba, Curaçao, Sint Maarten and the Netherlands. Before 10 October 2010, the Kingdom consisted of three autonomous countries: the Netherlands Antilles (comprising Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba), Aruba and the Netherlands. The Charter for the Kingdom of the Netherlands bestows far-reaching autonomy on the countries, each of which has its own constitution and political system. All areas of policy are considered to be under the internal competences of each of the autonomous countries, unless the Charter explicitly states otherwise. Aruba, Curaçao, Sint Maarten and the Netherlands each have their own government and parliament. Those institutions are empowered to enact legislation related to the affairs of the country concerned. Kingdom affairs are dealt with in the Council of Ministers for the Kingdom, which consists of the ministers of the Netherlands and three ministers plenipotentiary appointed by Aruba, Curaçao and Sint Maarten.

The State Party notes that the author has held various political positions in Curaçao since 2006. He became the first Prime Minister of Curaçao after the island obtained the status of autonomous country within the Kingdom of the Netherlands following the dismantling of the constitutional order of the Netherlands Antilles on 10 October 2010. Subsequently, he was elected to the Parliament of Curaçao and served as parliamentary leader of the Movementu Futuro Kòrsou, a party he had founded. A criminal investigation instituted against the author in 2013 resulted in his conviction on 11 March 2016. Despite his criminal conviction, he stood for election in the parliamentary elections in 2016 and 2017. He ceased to be a member of parliament when his conviction became final on 27 November 2018.

In June 2013, the author was placed under investigation, on the instructions of the Attorney General, on suspicion of money-laundering and forgery, after two criminal complaints had been lodged with the Public Prosecution Service in 2012. This investigation resulted in the author being charged with the following offences: (1) official bribery; (2) forgery (invoices); (3) money-laundering; (4) possessing technical devices capable of disabling or interfering with telecommunication systems; and (5) forgery (notification of loss of travel document). On 11 March 2016, the Court of First Instance of Curaçao found all five charges to be proven and sentenced the author to a term of imprisonment of three years, with credit for time on remand, and disqualification from the right to stand for election for five years. The author appealed that judgment before the Joint Court. By judgment of 21 July 2017, the Joint Court upheld the conviction as concerned counts 1, 2, 3 and 4, but found that count 5 was not proven.⁴ The sentence was also upheld on appeal. On 27 July 2017, the author lodged an appeal in cassation with the Supreme Court of the Netherlands against the Joint Court’s judgment. On 27 November 2018, the Supreme Court dismissed the author’s appeal.

4. The State Party notes that regarding count 1 (official bribery), the Joint Court considered it had been proven that, in the period from 1 January 2010 to 8 October 2010, the author, in his capacity as a public official, had accepted gifts made by or on behalf of a person (“C”) in the then Netherlands Antilles and in the United States, in the sum of $ 140,000 and a sum of $ 73,447 knowing that these gifts were made to him with the intention of inducing him to perform or refrain from performing certain acts in breach of his professional obligations. As regards count 2 (forgery), the Joint Court considered it proven that, in the period from 1 January 2010 to 1 July 2010, the author, together and in association with two other persons, had forged two invoices intended to serve as evidence of fact, with the aim of using them as if they were genuine and not falsified. As regards count 3 (moneylaundering), the Joint Court found that, in the period from 1 January 2010 to 15 November 2011, the author, together and in association with another person, had concealed the origin of the following sums of money ($ 15,000, $ 10,000, $ 50,000, $ 50,000, $ 53,422 and $ 20,000), while he and his co-defendant knew that those sums of money derived directly from a criminal offence. As regards count 4, the Joint Court considered that it had been proved that, on 9 December 2013, in Curaçao, the author, together and in association with another person, had in his possession technical devices designed to disrupt the operation and/or working of any telecommunication system, with the aim of using them to commit a criminal offence. ↩

On 28 November 2018, the author lodged a civil application for an order directing a provisional witness examination of P., a public prosecutor who was working in Milan, Italy. By instituting the proceedings, the author wished to establish that the Public Prosecution Service, in the person of the Advocate General, had made untruthful statements and could be held liable for the resulting damage. By order of 28 February 2019, the Court of First Instance granted the author’s application to examine the witness concerned, reasoning that the provisional examination was intended for the purpose of a civil action and not to challenge the criminal judgment. On 13 July 2020, a provisional witness examination took place in Cremona, Italy.

On 27 November 2018 the President of the Parliament of Curaçao informed the author by letter that he had been disqualified from membership of Parliament pursuant to the provisions of the national ordinance on parliamentary disqualification. The appeal lodged by the author with the Joint Court was held to be unfounded on 30 January 2019. As regards the author’s defence that the ordinance in question had not entered into force because the national decree regulating the entry into force had never been passed, the Joint Court ruled that, pursuant to article 60 b (1) of the Charter for the Kingdom of the Netherlands, the ordinance had entered into force at midnight on 10 October 2010 and applied to the country of Curaçao from that date. The Joint Court referred in that connection to the legislative history of article 60 b of the Charter for the Kingdom.

Regarding the alleged violation of article 10, the State Party argues that there is no indication that the author has made a formal complaint to the domestic authorities and that he has therefore not exhausted available domestic remedies. Additionally, it notes that the author has not provided any information about his individual circumstances and has therefore also failed to sufficiently substantiate said claim for the purpose of admissibility. The State Party also provides information on the Curaçao Centre for Correction and Detention, in which the author was held. It notes the author was assigned to block 6, which was renovated in 2017. In the daytime, inmates can move around freely in their block. The prison has an unlimited power supply and all cells are fitted with sockets for televisions and electric fans. There is also an unlimited water supply. Ice is delivered to the prison on a daily basis. The inmates are given two bread-based meals and a hot meal daily. Inmates have access to healthcare on the premises. All inmates have access to a public phone to call their families and communicate with their lawyer. The Curaçao Centre for Correction and Detention also provides rehabilitation programmes in which inmates can participate on a voluntary basis. Those consist of educational and social activities, sport and work.

The State Party notes the author’s claims that the presumption of innocence was violated in his case, as he claims that the Joint Court reversed the burden of proof by requiring him to demonstrate evidence disproving the criminal charges against him, in violation of his rights under article 14 (2). The State Party argues that, in the cassation proceedings before the Supreme Court, the author did not allege that the Joint Court had reversed the burden of proof to his detriment and it submits that he has therefore not exhausted the domestic remedies available.

The State Party notes the author’s claims that his rights under article 17 were violated by the leaking of confidential financial records about his person to the public domain and that the information was used as the basis for instituting a criminal investigation against him. It states that, in the criminal proceedings, the Joint Court found that it had not been substantiated by way of any evidence of facts or circumstance that public officials had been involved in deliberately leaking the information or played any other role that would have made the use of the information by the Public Prosecution Service unlawful. The State Party also notes that, on 28 January 2013, the Attorney General ordered a special unit investigating offences committed by public servants to look into unusual transactions by the author, and that said order was to be treated as the official start of the criminal investigation. The Joint Court observed in that regard that it was apparent that a cautious approach was adopted to the rumours that had been circulating on the Internet for some time about the defendant’s financial transactions and that, before the Public Prosecution Service took action, several criminal complaints with supporting documents had been filed with the authorities. The Joint Court considered that the investigation was conducted with due care and that the information it yielded provided a sufficient basis for a reasonable suspicion that the defendant was guilty of a criminal offence. The State Party argues that, insofar as the author complains of a violation of article 17 due to the leaking of disclosures from the Reporting Centre for Unusual Transactions that were subsequently used to institute a criminal investigation, it is apparent from the domestic court proceedings that the alleged violation cannot be imputed to the State. Furthermore, the State Party emphasizes that it has been established that the criminal investigation was instituted not on the basis of leaked documents, but on the basis of substantiated criminal complaints lodged against the author with the Public Prosecution Service.

The State Party further notes that, in 2017, the author and his partner sued the country of Curaçao and officials of the Curaçao Security Service for allegedly having carried out or arranged for unlawful security screening of them in 2010 and having subsequently leaked the information obtained from the screening or arranging for it to be leaked. In those civil proceedings, the Court of First Instance of Curaçao concluded in a judgment of 20 April 2020 that it could not be held that the disclosures from the Reporting Centre for Unusual Transactions had come into the public domain through the State’s actions. However, the Court did conclude that the leaking of a memo drawn up by the Curaçao Security Service and containing information about the author in the context of security screening could be imputed to the State. The Court therefore found that the State had acted unlawfully towards the author with regard to the leaking of said memo. However, the Court did not consider that the claim for damages could be granted, as the author had been unable to demonstrate a causal link between the leaking of the memo and the alleged damage he had suffered, that is, his criminal conviction. The State Party argues that it can thus be concluded that in the domestic proceedings it has already been acknowledged in substance that article 17 was violated in the case of the author. Consequently, the author no longer has any interest in obtaining a ruling from the Committee on that point.

The State Party notes the author’s claim that his rights under article 14 (2) were violated. It notes that, in its discussion of the judicial findings of fact, the Joint Court considered the evidence that had been adduced at trial. The Joint Court inferred from the evidence in its totality that the author had accepted the sums of money specified in the findings of fact knowing that those gifts were made to induce him to act in the manner described in those findings. It also inferred therefrom that the author knew at the time he accepted the money that such action would be a breach of his duty as a public official. The State Party further notes that, on the basis of banking transactions, the Joint Court found that the author had concealed the origin of the amounts of money paid to him, thus finding him guilty of the offence of money-laundering. The State Party argues that the author was thus found guilty based on the evidence presented in the case, including monetary transactions and email correspondence. It argues that the author, when explaining his position that the Joint Court reversed the burden of proof, is basically arguing that the evidence presented was insufficient to warrant the Joint Court’s judicial findings of fact.

The State Party notes the author’s claim that his rights under article 14 (3) (e) were violated as he was refused leave to call P. (an Italian public prosecutor) as a witness to testify on his behalf. It notes that this witness request was closely related to the defence’s submission in the criminal proceedings that a fair trial was impossible as the Public Prosecution Service had acted unlawfully towards the author at the start of the investigation. The defence argued that, when the criminal investigation started in 2013, there was insufficient evidence against the author and that the Public Prosecution Service subsequently created an additional ground to strengthen the case for an investigation. The State Party notes that the Joint Court held, however, that the investigation into the author had been ordered by the Attorney General, prompted by requests received by the Public Prosecution Service from a foundation based in Curaçao and various private citizens relating to unusual transactions to which the author had been linked. The Joint Court considered that it would be pointless to hear P. as a witness, since his testimony could not be of assistance in reaching a decision in the case. The Joint Court also found that it had not been shown why it was important to establish which official of the public prosecution service in Milan had sent or signed the email providing information or documentation that may be of interest to the prosecutor’s office in Curaçao, as the fact that the relevant information came from the Italian public prosecution service was not in dispute. The State Party submits that the Joint Court’s decision not to call P. as a witness was therefore not unreasonable, as the Court gave reasons why P. could not be regarded as a relevant witness, given that his testimony could not influence the Joint Court’s finding concerning the start of the criminal investigation. In that connection, the State Party additionally notes that, in the civil action brought by the author with a view to holding the Public Prosecution Service liable in tort, the Joint Court granted the author’s request to order a preliminary examination of P. as a witness and that this preliminary examination took place in Italy on 13 July 2020.

The State Party notes the author’s claims that, at the time the donations were made to the author’s political party, the law did not prohibit the funding of political parties by third parties. It emphasizes that the author was convicted of, among other charges, official bribery and money-laundering, which were criminal offences under the Criminal Code at the time in question. The State Party notes that the boundary between the right to political participation and prohibited gifts is clearly defined in the statutory provision on the crime of official bribery in article 379 of the Netherlands Antilles Criminal Code,⁵ under which the author was convicted and which had been in force for a significant period at the time the offences in question were committed. The State Party argues that it follows from the foregoing that the author’s conviction by the judicial authorities was in accordance with the law and that there was no violation of article 15 of the Covenant.

5. The State Party notes that article 379 of the Criminal Code stipulates that a public official who accepts a bribe intended to induce him or her to perform acts in breach of his professional obligations is liable to a term of imprisonment not exceeding four years. ↩

The State Party further notes the author’s claims that the State Party violated his right to political participation under article 25 of the Covenant by barring him from holding government office. It notes that the author, while holding public office, was convicted of four offences, which carried maximum terms of imprisonment of 1, 4, 5 and 12 years. It argues that, as those offences also had a direct bearing on his public office, the sentences were not disproportionate. It argues that it is apparent from the provisions of the Constitution and domestic legislation that the author’s disqualification from the right to stand for election was lawful.⁶ The State Party acknowledges that the five-year disqualification from holding elected office constitutes an infringement of the author’s rights under article 25. It however argues that the infringement meets the requirements of objectivity and reasonableness. The disqualification was linked to a final criminal conviction for serious crimes that carried a custodial sentence reflecting the serious nature of the offence. Referring to the jurisprudence of the European Court of Human Rights, the State Party notes that, in assessing the proportionality of interference with electoral rights, the Court has emphasized that article 3 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) does not exclude the possibility of imposing restrictions on the electoral rights of a person who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations.⁷

6. The State Party notes that the national ordinance on parliamentary disqualification provides that a Member of Parliament ceases to hold office as such if, after his admission, he has been sentenced by a final and unappealable judgment of a court of law to a determinate term of imprisonment of at least one year. ↩
7. Paksas v. Lithuania, Application No. 34932/04, Judgment, 6 January 2011, para. 96. ↩

As to the author’s claims under article 26, the State Party notes that, if it understands the author correctly, he is of the opinion that the manner in which he has been treated is the result of an unjustified distinction between how abuse-of-office offences are prosecuted in the case of members of the Curaçao Council of Ministers and Parliament, on the one hand, and members of the Netherlands government and Parliament, on the other. It notes that the four countries within the constitutional organization of the Kingdom enjoy a large degree of autonomy and that the administration of justice is an area that comes within the countries’ internal autonomy. The countries may therefore, in principle, determine themselves which acts are criminal offences and how those criminal offences are to be prosecuted. The countries of Aruba, Curaçao, Sint Maarten and the Netherlands apply different rules on the prosecution of abuse-of-office offences. The State Party contends that no prohibited differentiation has therefore been made between the author, who was a minister and a member of Parliament in Curaçao, and ministers and members of Parliament in the Netherlands, given the large degree of autonomy that all four countries of the Kingdom enjoy.

On 22 June 2022, the author submitted his comments on the State Party’s observations. He maintains that the communication is admissible and reiterates his claims as presented in his initial complaint.

The author reiterates his claim that the Public Prosecution Service misrepresented one of the reasons for the criminal investigation initiated against him, resulting in an unfair trial. He states that the Italian prosecutor P. made a statement in the course of the civil proceedings contradicting the course of events outlined by the Public Prosecution Service in Curaçao on essential points, stating that he had never sought contact with the Public Prosecution Service in Curaçao regarding the author on his own initiative and that he was not familiar with the author at the time. When visited by the officers from the Service, P. had only told them that he had two documents that might be of interest to them.

The author notes the State Party’s submission that his claims under article 14 (2) should be found inadmissible for failure to exhaust domestic remedies. He maintains that he raised his claims under article 14 (2) in his appeal to the Joint Court and the Supreme Court, but argues that his claims were ignored by both courts. He further argues that the laws of the State Party are construed in such a way that the mere fact that he was in public service means that any money he receives from a donor is deemed to have been given to him in order to obtain something in return. He argues that this such interpretation of the law allows the courts to infer culpability, rather than requiring the prosecutor to prove that the donation was indeed made to induce him to benefit the donor in his official capacity.

The author reiterates his initial claims under article 17 of the Covenant and argues that the courts, by allowing the Public Prosecutor to use information to which it would not have had access but for a leak, denotes the lack of an effective protection of his right under article 17. He argues that the fact that, in subsequent civil proceedings, responsibility for the leak was acknowledged does not detract from the fact that he was prosecuted, convicted, sentenced, jailed and fined and he contends that the only effective remedy in his case would be the reversal of all the consequences of the criminal prosecution on the basis of the leaked information.

The author reiterates his claim under article 15 that, at the time of the relevant facts, there existed no legislation in Curaçao regarding the funding of political parties. He argues that in its observations the State Party conflates the governance of a political party with influence in public office and argues that the evidence used to convict him shows that the donor in the criminal case against him did not obtain any favour in return for his donation to the creation of the Movementu Futuro Kòrsou.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State Party’s submission that the author’s claims under articles 10 and 14 (2) should be found to be inadmissible for failure to exhaust domestic remedies. It notes that the author has not refuted the State Party’s submission as concerns his claims under article 10, nor has he provided any information on any attempt to exhaust domestic remedies as concerns said claims. The Committee thus finds the author’s claims under article 10 inadmissible under article 5 (2) (b) of the Optional Protocol. The Committee notes, however, the author’s argument that he raised the claims under article 14 (2) in his appeals to the Joint Court and the Supreme Court of the Netherlands. The Committee therefore finds that it is not precluded by article 5 (2) (b) from addressing said claim.

The Committee notes the author’s claims that the State Party denied him the opportunity to call and examine a key witness at his trial, in violation of his rights under article 14 (3) (e) of the Covenant. It notes his argument that said witness could have provided information as to the reason for the initiation of the criminal investigation against him. The Committee further notes the State Party’s argument that the domestic courts found that the investigation against the author was initiated based on criminal complaints received from the public by the Public Prosecution Service. It notes the State Party’s argument that the Joint Court’s decision not to call P. as a witness was not unreasonable, as the Court gave reasons why P. could not be regarded as a relevant witness, given that his testimony could not provide any relevant information concerning the start of the criminal investigation against the author.

The Committee recalls that article 14 (3) (e) guarantees the right of accused persons to examine or have examined the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.⁸ It recalls, however, that the right of the accused to examine witnesses on his or her own behalf is not absolute. The accused only has the right to have those witnesses admitted who are relevant for the defence and the right to be given a proper opportunity to question and challenge the witnesses testifying against him or her at some stage of the proceedings.⁹ It recalls that, within these limits and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, it is primarily for the domestic legislatures of States Parties to determine the admissibility of evidence and how their courts assess it.¹⁰ The Committee notes that, in the present case, the witness requested by the author was found by the domestic courts not to be relevant, as the witness has been assessed as not able to provide relevant information as to the reasons for the initiation of the criminal investigation against the author, given the criminal complaints filed against the author with the prosecution service in Curaçao. The Committee thus finds the author’s claims under article 14 (3) (e) to be insufficiently substantiated for the purposes of admissibility and thus inadmissible under article 2 of the Optional Protocol.

8. General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 39. ↩
9. Ibid. See also, for example, Allaberdiev v. Uzbekistan (CCPR/C/119/D/2555/2015), para. 8.8; Y.M. v. Russian Federation (CCPR/C/116/D/2059/2011), para. 9.9; A.M. v. Russian Federation (CCPR/C/141/D/3068/2017), para. 6.9; and A.A. v. Russian Federation (CCPR/C/139/D/2964/2017), para. 6.9. ↩
10. General comment No. 32 (2007), para. 39. ↩

The Committee further notes the author’s claims that, at trial, the Joint Court reversed the burden of proof by requiring him to demonstrate evidence disproving the criminal charges against him, in violation of his right to presumption of innocence under article 14 (2). It also notes his claims that the State Party breached his right to equality before the courts and tribunals and to a fair and public hearing by a competent, independent and impartial tribunal, in violation of his rights under article 14 (1) of the Covenant.

The Committee takes the view that the author’s claims relate essentially to the evaluation of facts and evidence carried out by the domestic courts and the application of domestic legislation. The Committee recalls its jurisprudence in which it has repeatedly held that it is for the courts of States parties to evaluate the facts and evidence in each specific case, as well as the application of domestic legislation, unless it can be ascertained that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice.¹¹ In the present case, the Committee notes the State Party’s submission that during the domestic proceedings the author was found guilty of the charges against him based on evidence presented at trial, including financial transactions and email correspondence. It therefore considers that the author has failed to substantiate, for purposes of admissibility, that the conduct of the domestic courts was clearly arbitrary or amounted to a manifest error or denial of justice; and has not substantiated his claim that the domestic courts failed to respect his right to be presumed innocent. Accordingly, the claims under article 14 (1) and (2) are inadmissible under article 2 of the Optional Protocol.

11. See, for example, Manzano et al. v. Colombia (CCPR/C/98/D/1616/2007), para. 6.4; L.D.L.P. v. Spain (CCPR/C/102/D/1622/2007), para. 6.3; and B and C v. Czech Republic (CCPR/C/113/D/1967/2010 and CCPR/C/113/D/1967/2010/Corr.1), para. 6.5. ↩

The Committee notes the author’s claims that the State Party constructed a criminal charge against him for a crime that did not exist at the time of the acts charged. It notes, however, the State Party’s undisputed information that the author was, among other charges, convicted on charges of bribery and money-laundering, which were criminal offences under the Criminal Code of the Netherlands Antilles, in force at the time of the offences in question. The Committee therefore finds the author’s claims under article 15 to be insufficiently substantiated for the purposes of admissibility and inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claims that the State Party’s authorities arbitrarily and unlawfully interfered with his privacy, honour and reputation by leaking his confidential financial records to the public domain and using said information as the basis for instituting a criminal investigation against him, in violation of his rights under article 17 of the Covenant. The Committee notes the State Party’s argument that the Joint Court found during the criminal proceedings that it had not been substantiated that public officials had been involved in leaking the information or played any other role that would have made the use of the information by the Public Prosecution Service unlawful.

The Committee further notes the State Party’s information that the domestic courts found, however, that the leaking of a memo containing information about the author in the context of security screening could be imputed to the State, but that the author had been unable to demonstrate a causal link between the leaking of said memo and the alleged damage suffered, that is, the criminal conviction. It notes the author’s argument that the fact that responsibility for the leak of the security screening memo in the civil proceedings was acknowledged does not detract from the fact that he was prosecuted and convicted, and that the only effective remedy in his case would therefore be the reversal of all the consequences of the criminal prosecution on the basis of the leaked information. In that connection, the Committee notes however the State Party’s argument that it was established in the domestic proceedings that the criminal investigation against the author was instituted not on the basis of leaked documents, but on the basis of substantiated criminal complaints lodged against the author with the Public Prosecution Service, and that the domestic courts found that it had not been substantiated by way of any evidence of facts or circumstance that public officials had been involved in deliberately leaking the information or played any other role that would have made the use of the information by the Public Prosecution Service unlawful (see para. 4.9 above). Taking the above into account, and in the absence of any further specific information or argumentation by the author as to the claims raised under article 17, the Committee considers that the author has failed to substantiate, for purposes of admissibility, that the conduct of the domestic courts was clearly arbitrary or amounted to a manifest error or denial of justice. Accordingly, it finds his claims under article 17 to be inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claims that the revocation of his parliamentary mandate, his ban from holding elected office for a period of five years, and his ban from holding a position as Cabinet minister following his criminal convictions was in violation of his rights under article 25, read alone and in conjunction with article 2 (3). It notes his claims that the revocation and ban were not established by law and were grossly disproportionate to the offences of which he had been convicted. It notes the author’s argument that the national ordinance on parliamentary disqualification had not entered into effect at the time of his conviction and his argument that as his parliamentary mandate had been cancelled pursuant to said ordinance, the revocation had no legal basis. The Committee notes the State Party’s argument that the infringement of the author’s right to hold elected office was in accordance with the law and met the requirements of objectivity and reasonableness. It notes the State Party’s argument that the Joint Court ruled that, pursuant to article 60 b (1) of the Charter for the Kingdom of the Netherlands and its legislative history, the national ordinance on parliamentary disqualification had entered into force on 10 October 2010 and applied to the country of Curaçao from that date.

The Committee thus notes the author’s argument that, as the national ordinance on parliamentary disqualification had not entered into effect at the time of his conviction, the revocation of his mandate was not established by law. The Committee observes that the question on when the national ordinance on parliamentary disqualification entered into force is clearly a question on the application and interpretation of domestic legislation. As noted above, it recalls that it is for the courts of States parties to evaluate the facts and evidence in each specific case, as well as the application of domestic legislation, unless it can be ascertained that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice.¹² In the present case, the author has not substantiated that the interpretation by the domestic courts was clearly arbitrary or amounted to a manifest error or denial of justice. The Committee thus finds that the author has not substantiated that the revocation of his parliamentary mandate and his removal from office were not established by law.

12. See, for example, Manzano et al. v. Colombia (CCPR/C/98/D/1616/2007), para. 6.4; L.D.L.P. v. Spain (CCPR/C/102/D/1622/2007), para. 6.3; and B and C v. Czech Republic (CCPR/C/113/D/1967/2010 and CCPR/C/113/D/1967/2010/Corr.1), para. 6.5. ↩

The Committee further notes the author’s claim that the interference with his right to hold elected office was disproportionate to the offences for which he had been convicted. The Committee notes that the author was sentenced to three years’ imprisonment on charges of bribery, money-laundering and forgery and that said charges were related to his position as a public official. In that connection, the Committee recalls its jurisprudence that crimes related to such offences as campaign finance, bribery or other offences that may target elections and the democratic order are to be taken into account in assessing the reasonable restrictions on article 25 rights.¹³ The Committee notes that, in the author’s case, his conviction was related to that category of offences and it therefore finds that the author has failed to substantiate his claims that the interference with his right to hold elected office was unreasonable or disproportionate in the circumstances of his case. The Committee therefore finds the author’s claims under article 25, read alone and in conjunction with article 2 (3), to be insufficiently substantiated and therefore inadmissible under article 2 of the Optional Protocol.

13. Taylor et al. v. New Zealand (CCPR/C/138/D/3666/2019), para. 7.5; and Kim et al. v. Republic of Korea (CCPR/C/143/D/3660/2019), para. 7.6. ↩

The Committee notes the author’s claim that the State Party infringed on his right to non-discrimination based on political opinion and membership, and his claim that there is an unjustified distinction as to the requirements for criminal prosecution of members of the Curaçao Council of Ministers and Parliament, on the one hand, and members of the Netherlands government and Parliament, on the other. It notes the State Party’s argument that the countries of Aruba, Curaçao, Sint Maarten and the Netherlands apply different rules as to prosecution of abuse-of-office offences and that consequently the ministers of Curaçao, on the one hand, and the ministers of the Netherlands, on the other, are not in an equivalent functional legal position given the large degree of autonomy that all the four countries of the Kingdom enjoy. The Committee notes that the author’s conviction and subsequent ban on holding office was in accordance with applicable domestic legislation in Curaçao and it finds his claims under article 26 to be insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee therefore decides: (a) That the communication is inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol;