1. The facts
Based on the documents and the hearing of March 20th, 2015 in this proceedings the following is assumed.
I.1) Bosman is a member of parliament for the VVD in the Netherlands. Bosman has in his portfolio the (former) Netherlands Antilles, which includes St. Maarten. Bosman is also in this case the spokesperson for the VVD.
1.2.) De Weever is a Parliamentarian (‘Member of Parliament’) in St. Maarten. Until September 24th, 2014 he was a member of the Democratic Party (DP) and up to December 19, 2014 he held the position of Minister of Health, Social Affairs and Labor.
1.3.) In a criminal case heard by the Court of First Instance of Sint Maarten (Court of First Instance of Sint Maarten, August 25, 2014, ECLI:NL:OGEAM 2014:1) the (leadership) of the UP were implicated in the buying of votes.
1.4.) At the request of Sint. Maarten, Price Waterhouse Coopers (hereinafter “PWC”) led an integrity investigation of the government of Sint Maarten. Following this study, a report was released in August 2014 entitled “Integrity Inquiry into the functioning of the Government of Sint Maarten.”
I.5) Partly as a result of the aforementioned report, which was discussed in the Second Chamber in September of 2014, the Minister of Interior and Kingdom Relations (hereinafter “The Minister”), gave the Governor of Sint Maarten the instruction to postpone the appointment of the Minister and the Prime Minister after the results of the elections of August 29, 2014 until further research was done on the appointment of the nominee ministers and candidate Prime Minister. In a letter dated October 17, 2014 the Minister in regard to the PWC report writes the following to the Second Chamber:
“The report (…) shows a major lack of integrity in the government. The research also indicates that there is integrity violations by politicians”
1.6) On September 24, 2014 De Weever left the DP and he – as independent MP – joined the United People’s Party (UP), which after the elections of August 29, 2014, led by Theo Heyliger had won 42% of the votes.
De Weever formed a coalition. De Weever was then forced to resign from the DP. This generated a lot of publicity.
1.7) On or about September 29, 2014 Bosman spoke to a journalist of ‘De Telegraaf’ newspaper. In this conversation the switch (defection) of de Weever was discussed. In ‘De Telegraaf’ of September 29, 2014 an article was published with the headlines “Corrupt Sint Maarten (Government) should be screened.” The relevant parts of the article are as follows:
“According to VVD Second Chamber member Bosman “De Weever was ‘simply paid’ by Theo Heyliger.
The liberal felt that the integrity report of the previous weekend especially revealed corruption at the harbor, where Heyliger conducts business.”
This article by ‘De Telegraaf’ with the statements of Bosman regarding De Weever was picked up on the 30th by several other newspapers, including ‘The Daily Herald’ (Sint Maarten), ‘The Today’ (Sint Maarten) and ‘Amigoe’ (Curacao).
1.8) On October 19, 2014, mr. J. G. Bloem, lawyer on Sint Maarten, on behalf of De Weever in an open letter referring to the abovementioned publications requested Mr. Bosman to let him know whether he did made those statements and pointed out to him that the accusations miss basis in fact and that they affect the honor and good name of De Weever. In this letter mr. Bloem requests Bosman to take back the statements and for him in the future to restrain himself from such statements.
1.9) On or about October 22 and November 11, 2014 in several newspapers (including ‘Amigoe’) again statements of Bosman were published. In ‘The Daily Herald’ (Sint Maarten) on November 12, 2014 these statements are quoted as follows:
“On October 22, he stated in the Ainigoe newspaper that” The fact that they wanted me to shut up is maybe an indication that I am on the right track. ”
Bosman also stated “People can get very angry when we say something in the Netherlands, it is apparently true.”
1.10) By letter dated November 22, 2014 Bosman has notified mr. Bloem the following:
“Your client feels frustrated by statements made by me which were noted by a journalist and then automatically taken over by several other newspapers. In my conversations with the relevant journalist, which casually took place, I have indicated that “to me it has all appearances that he was simply paid”. This sentence born out of concern finally ended up in a shortened version in the newspaper. I by no means had the intention to accuse or to grieve your client or as such to affect anybody’s honor or good name”.
1.11) By letter dated November 25, 2014, mr.Bloem summoned Bosman to rectify his statement that De Weever had simply been paid by Heyliger.
1.12) In an e-mail of March 18, 2015 addressed to De Weever, and with the sender being Dennis L. Richardson, Minister of Justice of Sint Maarten, it was stated that De Weever in relation to the verbal threats against his person and following his filed complaint the Police indicated to him to take heightened security measures, including having De Weever wear a bulletproof vest.
The email contains – for as far of any importance here – the following:
“Filing of complaint of above mentioned threats occurred after De Weever separated himself from the Democratic Party and gave support to the United Peoples Party and he therefor was accused of being bribed, also in the Dutch press by a member or members of the ‘Staten Generaal.(Parliament)”
2. The dispute
2.1) De Weever requires – essentially – to condemn Bosman to place an ad with the in the summons mentioned rectification, or else a text proposed by the judge sitting in summary proceedings, in the summons mentioned newspapers in The Neherlands and Sint Maarten; to condemn Bosman to restrain in expressing himself publicly in word and/or in writing regarding De Weever, in a way that violates the truth and/or is injurious and/or (intentionally or unintentionally) is offensive or intentionally affects the honor and good name of De Weever to be penalized by a penalty payment and to condemn Bosman in paying to De Weever € 11,000 by way of an advance on a compensation of the by De Weever suffered material and immaterial damages, and condemnation of Bosman in the process expenses.
2.2) To this end De Weever states the following. The statements of Bosman – also in case if this only regards the by him admitted statement – are unlawful, since they are incorrect and has no base as such. The statements are defamatory and highly damaging for De Weever, especially considering statements by Bosman would be taken very seriously in Sint Maarten. Bosman has also never taken back his statements and neither nuanced them.
After the statements of Bosman a change occurred in the reactions of the public and De Weever received threats. Since then De Weever has been in consultation with the police who advised him that he should take safety precautions. Bosman is held by De Weever to damages, including travel expenses and to compensate immaterial damage to De Weever. Since the damage to De Weever still continues, he has a compelling interest in the allocation of his claim.
2.3) Bosman pleads a reasoned defense that hereafter, if necessary, will be discussed.
3. The assessment of the dispute
3.1. In this procedure must be assessed whether Bosman has to rectify his statements on a (possible) bribe of De Weever and or whether Bosman is held to pay Dc Weever € 11.000, – as an advance on compensation for by De Weever suffered damage as a result of the statement(s).
3.2. With the theorem of De Weever that he is still suffering damage by the Bosman expressed statements the for this procedure required urgent interest is given. Unlike Bosman has argued, a rectification is an interim measure can be awarded in summary proceedings.
3.3. Under Article 6: 167 BW the by De Weever claimed rectification can only be assigned in the case that Bosman because of an unlawful act is liable towards De Weever, in case of an incorrect or by incomplete malicious publication of data of factual nature The notion of publication is hereby broad and can see on any disclosure, even if it is not made in the press. In the present case it concerns the statements Bosman made to a journalist published in the in 1.7 mentioned newspapers. Although it is unclear to what extent the statements of Bosman were just cited, it is clear that Mr Bosman has said that “to me it has all appearances he was simply paid.” This by Bosman recognized statement will be taken by the court as a basis for the assessment.
3.4. Unlike Bosman argued, his statements are not covered by the immunity Article 71 of the Constitution (Gw). In that article, the immunity after all, limited to what is said in the discussions at the meetings of Parliament by Members of Parliament and other participants, while Bosman made his statements outside the meeting. This (double) limit to the immunity in the by Bosman referred judgment of the Supreme Court (Supreme Court June 28, 2002, ECLI: NL: HR 2002: AE1544) is also still considered current. The statements by Members of the Second Chamber in front of the press – even if they are done in the building of the Second Chamber – must taking into account the following be assessed against the freedom of expression and the restrictions thereon.
3.5. According to settled case-law in answering the question of whether a publication
is unlawful, in principle two, each on its own, high societal interests oppose each other. On the one hand the importance that individual citizens are not exposed to light insinuations. On the other hand it is important that not because of lack of awareness among the general public, abuses affecting society can survive. Which of these interests to add, in a given case, the deciding factor depends on the interrelationship to each other circumstances of the case. The limits of permissible criticism of a public authority as a public person are wider than in relation to a citizen as a private person. In a democratic system, public administration must indeed be closely monitored amongst others by the press and the public opinion. This means that a public authority has to put up with more intense public criticism than a civilian. The political debate should be in principle conducted on the cutting edge. To the freedom of expression also in the political debate no absolute character is defined. The court may impose certain limitations and certain penalties, but such restrictions and penalties must be applied with the biggest restraint and always (…) assessed in the sense of Art. 10, paragraph ECHR. (Supreme Court, November 11, 2011, ECLI: NL: HR: 201 1: BU3917)
3.6. In the present case it’s about the statements of a Member of the Second Chamber in The Netherlands concerning the occurrence of a Parliamentarian of Sint Maarten. On the one hand it must be acknowledged that the statements of Bosman target the actions of De Weever as Member of Parliament and not to be acting as a private individual and otherwise the parties do not participate in the same political arena. In assessing the illegality of the –established- statement the following must be weighed against each other: on the one hand the nature of the published statements and the severity of the expected impact on De Weever and on the other hand the severity – viewed from a general interest – of the abuse the statements aim to address, the extent to which at that time those statements the suspicions were backed by then available data of facts and the framing of those suspicions.
3.7. Same as the (then) Court at The Hague in the case that was sanctified by the Higher Court in the cited judgment (Court of The Hague, March 16, 2010, ECLI: NL: GHSGR: 2010: BL7588), the judge sitting in summary proceedings considers that a publication in which a politician is associated with bribery may have very serious consequences and that it was foreseeable at the time of the statement of Bosman that De Weever would be affected by the specific accusation in his good name. In this context De Weever unchallenged stated that the statements made by Bosman in St. Maarten are taken very seriously. In view of this restraint was necessary and could be expected of Bosman that he would only express such an accusation publicly when the seriousness of the abuse being raised justified this and that expressed suspicions at the time of publication found sufficient support at that moment available data of facts.
3.8. Bosman has put forward in his defense that he had and has serious suspicions of corruption
on the side of De Weever and Heyliger. In this context, he referred to the number one in 1.3 cited judgment of the Court of First Instance of St. Maarten, where (the leadership of) the UP – the party with which De Weever, has formed a coalition – is associated with vote buying and to the in 1.4 stated report of PWC that according to the Minister shows a major lack of integrity of Sint Maarten’s government. Besides that Bosman emphasized that the switch of De Weever from the DP to (cooperation with) the UP can be called remarkable. In the opinion of the judge sitting in summary proceedings all of this, taken into consideration with each other, gives insufficient (fact based) support to the by Bosman expressed serious accusation to the address of De Weever. The Bosman recognized statement has a certainty that does not match with the available data of facts, since nothing shows that a link must be established between the concerns about the integrity of the government of Sint Maarten and the switch of De Weever. By that the statement of Bosman towards De Weever “that it has all appearances De Weever is bought” must be considered unlawful.
3.9. Although the statement of Bosnian must be regarded as unlawful and Bosman according to the publications mentioned in 1.8 did not nuanced them, the judge sitting in summary proceedings considers that due to the time course since the offending statement – which must have been made on or about September 29, 2014 and published in the following days – rectification no longer is appropriate. Not haven been proved or that the statements of Bosman – besides the announcement of this procedure – are still repeated in the press and it is impossible to see what (justified) interest Dc Weever still has to the rectification claimed by him.
3.10. De Weever has not bring forward facts or circumstances on the basis of which must be feared that Bosman will again make statements that damage the honor and good name of De Weever. The very general formulated ban against future statements of Bosman must there for also be rejected.
3:11. With regard to the compensation of the damages claimed by De Weever the judge sitting in summary proceedings considers that in accordance with established jurisprudence regarding monetary claims in summary proceedings restraint is advised. So not only will need to be examined whether the existence of the claim in question is sufficiently plausible – which means that with a high degree of expected probability must be that the court in a standard court case will assign it – but also, or additionally, the existence of facts and circumstances which entail that under emergency immediate provision is required, while in balancing the interests of the parties the restitution risk should be involved.
3.12. Although, as indicated above, the statements of Bosman towards De Weever are unlawful, it cannot be determined in this limited procedure that De Weever, thereby suffered damage alleged by him. The sole theorem that he had to take security measures and he made travel expenses is for that purpose insufficient. Furthermore, insufficient plausible that the turnaround in public opinion asked by De Weever and the expressed threat (s) are related to the production of the statements of Bosman and not to the high profile switch of De Weever.
This means that the claimed advance – leaving aside the urgent interest and the possible restitution risk on the part of De Weever – must be rejected.
3:13. Now that the claims of De Weever, in this procedure must be rejected, he shall as the predominantly unsuccessful party be ordered to pay the costs of these proceedings.
4. The decision
The judge sitting in summary proceedings:
– Rejects the advance;
– Condemns De Weever in the costs of these proceedings, on the side of Bosman hitherto budgeted at € 1692, – of which € 816, – in attorney fees and € 876, – in court registry fee.
This judgment was rendered by mr. M. E. Groeneveld-Stubbe and publicly pronounced on 3 april2015.
FULL COURT VERDICT BOSMAN VS DE WEEVER DUTCH ENGLISH TRANSLATION…. HOW CORNELIUS DE WEEVER