CCPR/C/67/D/883/1999

Messrs. L. E. and J. Mansur (represented by Dr. Jan M. Sjcrona and Mr.

John H. van der Kuyp) v. the Netherlands, Communication No. 883/1999,

U.N. Doc. CCPR/C/67/D/883/1999 (9 November 1999).

Messrs. L. E. and J. Mansur (represented by Dr. Jan M. Sjcrona and Mr. John H. van

der Kuyp) v. the Netherlands, Communication No. 883/1999, U.N. Doc.

CCPR/C/67/D/883/1999 (9 November 1999).

Distr. RESTRICTED*

CCPR/C/67/D/883/1999

9 November 1999

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Sixty-seventh session

18 October - 5 November 1999

VIEWS

Submitted by: Messrs. L. E. and J. Mansur (represented by Dr. Jan M. Sjcrona and Mr. John

H. van der Kuyp)

Alleged victim: The authors

State party: The Netherlands

Date of the communication: 12 October 1999

Date of adoption of Views: 9 November 1999

On 9 November 1999, the Human Rights Committee adopted its Views under article 5,

paragraph 4, of the Optional Protocol in respect of communication No. 883/1999. The text of

the Views is appended to the present document.

[ANNEX]

ANNEX*

DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING

COMMUNICATIONS INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

-Sixty-seventh session -

concerning

Communication No. 883/1999

Submitted by: Messrs. L. E. and J. Mansur (represented by Dr. Jan M. Sjcrona and Mr. John

H. van der Kuyp)

Alleged victim: The authors

State party: The Netherlands

Date of the communication: 12 October 1999

The Human Rights Committee, established under article 28 of the International Covenant

on Civil and Political Rights,

Meeting on 5 November 1999

Adopts the following:

Decision on admissibility

1. The authors of the communication are Luis Emilio Mansur and Jossy Mehsen Mansur,

Dutch citizens who are residents of Aruba. They claim to be victims of violations by the

Kingdom of the Netherlands of their rights under articles 2 and 17 of the International

Covenant on Civil and Political Rights. The victims are represented by Dr. Jan M. Sjcrona of

The Hague, the Netherlands and Mr. John H. Van der Kuyp of Oranjestad, Aruba.

The facts as submitted by the authorsThe facts as submitted by the authors

2.1 The authors are members of the business community in Aruba. Among other enterprises

Luis Emilio Mansur is co-owner of a shipping company and Jossy Mehren Mansur is owner

and editor-in-chief of a newspaper and co-owner of a trading company.

2.2 Under a Royal Decree of 22 October 1994 the Interim Head of Aruban Security Service,

A. Koerten, was instructed to carry out an investigation into the security and integrity of

Aruba. A report on this investigation was produced on 20 April 1995, entitled Security and

Integrity of Aruba: Context and Perspective.

2.3 The report was issued as top secret and was sent to a limited number of state officials and

institutions, named in the report.

2.4 The report draws a picture of security in Aruba and mentions that foreign services

fighting crime in the region are Aalmost unanimous in their opinion that the predominant

image of the Aruban business community is one of joint services towards (laundering

specialists of) regional drug cartels.@ The report mentions the authors by name and portrays

them as criminals who were associated with criminal organizations involved in drugs

trafficking, gun trafficking and laundering money obtained from criminal activities.

2.5 Despite the fact that the report was classified as top secret it was leaked to the press and

its contents became public. It is not clear who leaked the report. An investigation of the leak

was carried out by the Dutch Internal Security Service in which it was supposedly found that

the leaked photocopy was not made from a copy in the hands of the Minister of Dutch-

Antillean and Aruban Affairs or another Dutch official. The investigation report did not state

of which copy the photocopy was made.

2.6 The authors claim that the allegations against them in the report are totally false and that

as a result of the report becoming public their reputations were severely harmed. This led to

serious damage to their business interests. They claim that by allowing the report to become

public the State party violated their rights not to be subjected to unlawful attacks on their

honour and reputation, protected under article 17 of the Covenant.

2.7 The authors requested the Minister of Dutch-Antillean and Aruban Affairs to disassociate

himself from the report. When he refused, they initiated summary proceedings in the court of

first instance in Aruba. In these proceedings they requested a declaration that the State party,

the Minister of Dutch-Antillean and Aruban Affairs and the Interim Head of the Security

Service of Aruba had no evidence that the authors were involved in laundering money or in

fraudulent actions.

2.8 The court of first instance ruled that it had no competence to peruse the claim against the

State party and that the Official Secrets Act justified refusing a remedy against the Interim

Head of Security.

2.9 The authors filed an appeal against the dismissal of their summary action with the Joint

Court of Justice of the Dutch Antilles and Aruba. Contrary to the judgment of the lower court

this court held that the courts were competent to peruse a claim against the State party.

However, the Court held that the authors had failed to demonstrate, nor make probable, that

the defendants had been negligent in allowing publication of the report and that they could

not be held responsible for acting in violation of article 17 of the Covenant.

2.10 The authors did not challenge the above decision before the Netherlands Supreme Court

as they were advised by a Dutch cassation attorney that they had no grounds for a successful

cassation appeal.

The author's claimsThe author's claims

3.1 The authors claim that by not preventing publication of the information relating to them

contained in the secret report the State party has violated their rights under article 17 of the

Covenant. They further claim that the directives of the State party regarding classification of

secret information and the requirement of the Court in the summary proceedings that the

authors prove the negligence of the State party result in a violation of the duty of the State

party, under article 2, paragraph 3, of the Covenant, to provide an effective remedy for

violation of their rights under article 17.

3.2 The authors claim that by pursuing summary proceedings they have exhausted domestic

remedies. They concede, however, that the domestic law does Aoffer the possibility of a civil

standard procedure (before the same instance as where the summary proceedings were lost),

yet going through this procedure takes up at least 4 to 6 years (in view of the existing

possibilities for appeal and cassation).

Issues and Proceeding before the Committee

4.1 Before considering any claim contained in a communication, the Human Rights

Committtee must, in accordance with rule 87 of its Rules of Procedure, decide whether or not

it is admissible under the Optional Protocol to the Covenant.

4.2 From the materials presented by the authors it is clear that within the framework of

summary proceedings the domestic courts could not examine the factual allegations of the

authors. These could only be examined in a standard civil action. The authors have conceded

that they have not commenced a standard civil procedure against the State party for a remedy

for the alleged attack on their honour and reputation in violation of article 17 of the

Covenant. In the circumstances, the Committee cannot accept the mere assertion by the

authors that the application of domestic remedies will be unreasonably prolonged.

Accordingly, the communication is inadmissible under article 5, paragraph 2 (b) of the

Optional Protocol.

5. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under article 5, paragraph 2 (b) of the Optional

Protocol;

(b) that this decision shall be communicated to the authors and, for information, to the State

party.

*Made public by decision of the Human Rights Committee.

View 883

*The following members of the Committee participated in the examination of the present

communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati,

Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Mr. Eckart Klein, Mr. David

Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hiplito

Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Maxwell Yalden.

[Adopted in English, French and Spanish, the English text being the original version.

Subsequently to be translated also in Arabic, Chinese and Russian as part of the Committee's

annual report to the General Assembly.]