Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, NETHERLANDS (KINGDOM OF THE); [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-13046 (E) 061025 071025
Human Rights Committee
Decision adopted by the Committee under the Optional
Protocol, concerning communication No. 3650/2019*, **
Communication submitted by:
G.F.S. (represented by counsels, Rutsel Silvestre
J. Martha, Geert-Jan Alexander Knoops and Sara
Pedroso)
Alleged victim:
The author
State Party:
Kingdom of the Netherlands
Date of communication:
2 May 2019 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to the
State Party on 27 August 2019 (not issued in
document form)
Date of adoption of decision:
17 July 2025
Subject matter:
Fair trial; right to hold elected office
Procedural issues:
Exhaustion of domestic remedies; level of
substantiation of claims
Substantive issues:
Conditions of detention; right to fair trial;
retroactive application of criminal law; right to
privacy;
right
to
hold
elected
office;
non-discrimination
Articles of the Covenant:
2 (3), 10, 14, 15, 17, 25 and 26
Articles of the Optional Protocol:
2 and 5 (2) (b)
1.
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.
* Adopted by the Committee at its 144th session (23 June–17 July 2025).
** The following members of the Committee participated in the examination of the communication:
Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Carlos Ramón Fernández Liesa,
Laurence R. Helfer, Konstantin Korkelia, Dalia Leinarte, Bacre Waly Ndiaye,
Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh Changrok, Teraya Koji,
Hélène Tigroudja and Imeru Tamerat Yigezu. Pursuant to rule 108 (1) (a) of the Committee’s rules of
procedure, Yvonne Donders did not participate in the examination of the communication.
United Nations
CCPR/C/144/D/3650/2019
International Covenant on
Civil and Political Rights
Distr.: General
7 October 2025
Original: English
CCPR/C/144/D/3650/2019
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Facts as submitted by the author
2.1
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.
2.2
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.
2.3
The author was arrested in Curaçao in May 2014 on charges of bribery,
money-laundering 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.
2.4
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.
2.5
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
money-laundering, 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.
2.6
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
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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.
2.7
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.
Complaint
Article 10
3.1
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.
Article 14 (1), (2) and (3) (e)
3.2
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.
3.3
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
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demonstrate that the funds received did not represent a gift in exchange for favourable
treatment of the donor.
3.4
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.
Article 15
3.5
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.
Article 17
3.6
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.
Article 25, read alone and in conjunction with article 2 (3)
3.7
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.
3.8
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.1 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
1 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”.
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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.
Article 26
3.9
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.
3.10
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.
State Party’s observations on admissibility and the merits
4.1
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.
4.2
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.
4.3
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
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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.
4.4
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.2 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.
4.5
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.
4.6
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.
4.7
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
2 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
(money-laundering), 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.
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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.
4.8
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.
4.9
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.
4.10
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
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case of the author. Consequently, the author no longer has any interest in obtaining a ruling
from the Committee on that point.
4.11
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.
4.12
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.
4.13
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,3 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.
4.14
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
3 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.
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GE.25-13046
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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. 4 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.5
4.15
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.
Author’s comments on the State Party’s observations on admissibility and the merits
5.1
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.
5.2
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.
5.3
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
4 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.
5 Paksas v. Lithuania, Application No. 34932/04, Judgment, 6 January 2011, para. 96.
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GE.25-13046
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.
5.4
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.
5.5
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.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
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.
6.2
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.
6.3
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.
Article 14 (1), (2) and (3) (e)
6.4
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.
6.5
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.6 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
6 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial,
para. 39.
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11
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.7
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.8 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.
6.6
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.
6.7
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.9 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.
Article 15
6.8
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.
Article 17
6.9
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.
7 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.
8 General comment No. 32 (2007), para. 39.
9 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.
CCPR/C/144/D/3650/2019
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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.
6.10
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.
Article 25, read alone in conjunction with article 2 (3)
6.11
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.
6.12
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.10 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
10 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.
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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.
6.13
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. 11 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.
Article 26
6.14
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.
7.
The Committee therefore decides:
(a)
That the communication is inadmissible under articles 2 and 5 (2) (b) of the
Optional Protocol;
(b)
That the present decision shall be communicated to the State Party and to the
author.
11 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.