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Supreme Court Rules: Conviction for violation of official secrecy by member of the state of Curaçao remains intact.  

The Hague, 01 October 2019

The conviction of a member of the MFF of Curaçao for breaching the duty of confidentiality remains in force. The Supreme Court ruled that today.

The Common Court of Justice found that in September 2014, as a member of the Standing Committee on Finance of the States of Curaçao, the suspect made statements about the content of a closed meeting. He did that during an interview on Radio Mas and later during a press conference. In doing so, according to the Court, he violated his official secrecy that is regulated in the Rules of Order of the States of Curaçao. The member of the States was awarded a conditional fine of 1400 Antillean guilders with a probationary period of 2 years.

The suspect appealed in cassation against this judgment to the Supreme Court. The proceedings before the Supreme Court concerned, among other things, the question whether the duty of confidentiality laid down in the Rules of Procedure is based on ‘a legal provision’ and whether that duty of confidentiality is in accordance with freedom of expression. The Court answered these questions in the affirmative. In the opinion of the Supreme Court that is correct.

All other complaints about cassation do not lead to the judgment being set aside. The conviction therefore remains intact.

Antillean case. Deliberate violation of official secrecy (art. 2: 232 SrC) by parliamentarian of Curaçao by telling during radio broadcast and press conference what has been discussed in a closed committee meeting. 1. Is art. 59 Rules of Procedure (RvO) ‘legal regulation’ abi art. 2: 232 SrC? 2. Must art. 59 RvO are not applicable because of incompatibility with, among other things, the right to freedom of expression ex art. 9 Constitution? 3. Forms in art. 59 Non-disclosure obligation of the RvO inadmissible violation of art. 10 ECHR?

Re 1. Having regard to art. 62 Constitution and taking into account that members of the States (and other organs of the States) are bound by regulations contained in the RvO, has an obligation of confidentiality in art. 59 RvO to apply as an obligation under the ‘statutory regulation’ ex art. 2: 232 SrC.

Re 2. In art. The rules of confidentiality contained in the Rules of Order can be seen as a restriction on freedom of expression. Intentional violation of this confidentiality obligation is in art. 2: 232 Criminal Code. Exercise of freedom of expression can be done on the basis of art. 10 ECHR are subject to restrictions that, in short, are provided for by law and that are necessary in democratic society to prevent the spread of confidential communications. Also in art. 9.3 Constitution guaranteed freedom of expression and the words “except everyone’s responsibility under national ordinance” are also intended to determine that this freedom is not unlimited. Therefore and in connection with art. 62 State regulation must be in art. 9.

Re 3. V.zv. plea alleges that confidentiality pursuant to art. 59 RvO constitutes an unacceptable violation of art. 10 ECHR, and that information that the suspect brought out was already in the public domain, it is important that the Court considers that to that extent it is irrelevant whether meeting participants make statements they make during a meeting earlier and in public because “the obligation of confidentiality of Article 59 of the Regulations serves as a guarantee for the participants to be able to speak freely during the meeting”. It concluded that the Court of Appeal – without demonstrating an error of law and not incomprehensible – ruled that for breach of secrecy ex art. 59 Supervisory Board not zm.

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