A Minister should not interfere in a criminal investigation

On 25 April 2012 the Curacao Minister of Justice (‘MofJ‘) Elmer ‘Kadè’ Wilsoe submitted an official request in a letter to the American Minister of Foreign Affairs Hillary Clinton to raise the attachment of the bank balances of lottery owner Dos Santos in the United States. Those attachments were made at the request of the Public Prosecutions Department (‘PPD‘) in Curacao in connection with a current criminal investigation (the ‘Bientu investigation‘).

However, a Minister should not interfere in a criminal investigation. Strict rules apply to this. And once a criminal case has been filed in court, neither should he interfere in the course of the proceedings. A request as formulated in the letter dated 25 April 2012 by the MofJ, is at odds with the law. The Minister has completely different – dissenting – ideas about this as appears from the report of the MofJ to the States of Curacao (the parliament) dated 11 May 2012.

What is most striking is that the MofJ is fishing opportunistically and therefore selectively in a lucky dip of arguments. For instance on the one hand he relies on a judgment of the court to justify his actions (GEA 4 April 2012, unlawful attachment), and on the other hand he complains that as a democrat “on behalf of the people of Curacao” he needs the consent of the non-democratically elected court before giving directions to the PPD. He even thinks that the consensus Kingdom Act concerning the Public Prosecutions Department (‘c-KA PPD‘) must – as the source of all evil – be amended, because the specific direction to be given by him to the PPD first has to be reviewed by the Joint Court of Appeal (Section 13 c-KA PPD).

Because his report to the States of Curacao concludes with the announcement that the legislation will have to be amended in that respect, he makes the issue with regard to Dos Santos a Kingdom problem and therefore he is heading for a direct collision with the Netherlands, which after all wants to supervise law enforcement in the Caribbean (from having quite a suspicious attitude with regard to politics here). Therefore the Netherlands will not soon agree to an amendment of a Kingdom Act in this respect (review by the court of ministerial direction).

Moreover, the MofJ is also mistaken in another area. Even without this Kingdom Act he will often need the intervention of the court. After all, in the conventions on mutual assistance (including with the US) the provision has invariably been included that the request for assistance must comply with the national legislation and this regularly prescribes authorization of the court in connection with the application of means of coercion in the other country. This is even explicitly provided for in the Agreement between the Kingdom and the US with regard to seizures and confiscation of (in short) criminal proceeds (1992; see Section 2 subsection 2 and Section 3). So sometimes the MofJ will be faced twice with a review by the court: in connection with the review with regard to a political direction, and in connection with the review with regard to the prosecution demand of the Public Prosecutor.

The MofJ is correct in saying that as MofJ he has been appointed as the competent authority in mutual assistance matters (with the US). But he is not correct if from this he draws the conclusion that the power of prosecution of the PPD, which must be executed in the other country, belongs to “a personal authority or competence of” the MofJ, in other words that the MofJ himself would have authority and would therefore have his own legal title to request attachment (etc.) in the other country. This constitutes absorption of a PPD power (with authorization by the court).

The only authority the MofJ has – and this only has he delegated to the Procurator General – is the power to pass on (in the past: via diplomatic mail) the request of the PPD (or another judicial authority within the sense of the convention) to the requested country. This is also evident from a diplomatic memo to the US Embassy in The Hague (1983) in which Article 14 of the Mutual Assistance Convention is further explained with regard to the concept of ‘competent authority’: the requests for assistance submitted in accordance with national legislation, usually originate from the PPD or the court but will be “passed on” by the MofJ.

This does not alter the fact that the MofJ is and remains politically responsible for mutual assistance matters. This responsibility entails that he can give ‘general‘ directions about the manner in which the international contacts must be conducted. The MofJ can even give a ‘specific‘ direction, but he should first have this direction reviewed by the Joint Court of Appeal as to whether this direction is in accordance with ‘the law’, according to Section 13 subsection 2 of c-KA PPD.

Any other intervention by the Minister of Justice which prevents the Procurator General from executing legal provisions with regard to international mutual assistance matters is prohibited by criminal law (Section 2:344 Curacao Penal Code).

The objection of the MofJ against this ‘undemocratic’ judicial review is based on the argument that this review does not exist in the Netherlands (and in Aruba). That too is not correct, at any rate not completely correct. If the MofJ gives a specific direction in the Netherlands – which until now only happened once (in a euthanasia case) – it must be included in the criminal file so that the court is able to take note of it. If this is a direction not to prosecute, parliament must be informed of it (Section 128, subsections 5 and 6, of the Dutch Judiciary Organization Act).

Because the MofJ considers this obligation of judicial review inconvenient, he tries to circumvent this by describing his intervention invariably as a ‘general instruction‘ (for which no judicial review within the sense of the c-KA PPD is required). This play on words is very transparent. The MofJ can hardly claim that correcting an act of the PPD – in his opinion based on ignoring a judgment in a concrete case – can be considered equivalent to the ‘general instruction that the PPD must abide by the law‘. That appears to me the statement of the year.

It is also rather questionable whether the reference to the Curacao Code of Criminal Procedure corresponds with regard to the requirement of a ministerial authorization in assistance matters involving political and fiscal offences: the respective Section 560 of the Code of Criminal Procedure only relates to requests from another country. For that reason in any event the ‘illegality’ of the prosecution of ‘one single lottery holder’ cannot be justified.

In short, for the time being everything points to the fact that the MofJ is abusing his powers by actually appropriating a prosecution power of the PPD and thereby putting the Procurator General under heavy political pressure. Formally he is acting in an inappropriate manner legally – the way in which the PPD executes a judgment is a matter between the judicial authorities of both countries – and in addition contrary to the political custom (that a MofJ should refrain from becoming involved in an individual criminal case unless he has very strong arguments). He should in any event avoid the appearance of entanglement of personal or as the case may be party-political interests. Why is the MofJ so worried about that ‘one lottery holder’?

What would be wise in the deadlock now created? Formally the PPD could apply to the Joint Court of Appeal for a ‘judicial provision due to urgent necessity’ (Section 43 subsections 1 and 2 of the Curacao Code of Criminal Procedure). The application could entail that the MofJ – without very good reasons – should refrain from intervening in an individual case with regard to the law on mutual assistance in such a way that the international progress of prosecution procedures of the PPD are prejudiced by this. Because although the PPD is obliged to comply with the orders of the government, the PPD can indeed review such an order against the law. In a case in Aruba in 1996 the opposite situation occurred: the refusal of the Procurator General to prosecute in Aruba in accordance with a ministerial order; the Procurator General indeed could not refuse to submit a request for assistance to the US in order to obtain incriminating evidence against X. In the present Bientu case the MofJ is trying to achieve the opposite.

The PPD can obviously adopt a wait-and-see attitude and wait until the MofJ submits his intention to give a special direction for review to the Joint Court of Appeal. Both parties would then be able to put forward all their arguments to the Court of Appeal.

Karel Frielink
Attorney (Lawyer) / Partner

(16 May 2012)

Click here for the Dutch text of this posting

See US Court order dated May 17th, 2012


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