PHILIPSBURG – What bothered Bada Bing owner Jaap van den Heuvel most about his conviction in the Court in First Instance was the charge of trafficking in women. The appeals court acquitted Van den Heuvel, Lunteren NV, and Bada Bing manager Krijn van den Brug this week of trafficking in women. The relief for Van den Heuvel is enormous. “This has been hanging over my head for five years; I have children and this blemish of trafficking in women hurts very much,” he informed
stmaartennews.com
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The conviction for other charges – forgery, tax fraud and bribery - still stand, but Van den Heuvel’s attorney Cor Merx filed for cassation at the Supreme Court on Friday. In this sense, the case is not over yet.
Merx notes that it is ironic that the solicitor-general asked Van den Heuvel after the trial whether he is prepared to testify about the video footage that showed how he paid former parliamentarian Patrick Illidge an amount of money. Van den Heuvel has said in the past that he made the video at the request of United People’s party leader Theo Heyliger. The idea was to blackmail Patrick Illidge into leaving the coalition and helping the UP return to a position in government.
Reportedly, the prosecutor’s office wants to hear Van den Heuvel in the context of an investigation into construction fraud for which the former director of the Standard Trust Company, Corinne de Tullio was arrested last week Sunday. This investigation focuses on possible irregularities with the construction of the causeway bridge. Merx and Van den Heuvel are considering the solicitor-general’s request but have not taken a decision yet.
Merx says that he is unable to explain the Bada Bing court ruling. In terms of the sentence – for Van den Heuvel 32 months with 12 months suspended – does not make a lot of sense compared to verdicts in other cases with similar charges of bribery, forgery and tax fraud. It is also remarkable that the appeals court opted to present an elaborate motivation for its decision to acquit Van den Heuvel, Van den Brug and Lunteren NV – the legal entity that operated Bada Bing (
the club closed down after Hurrcane Irma) - of trafficking in women.
The ruling should also have an impact on the role of the government as the facilitator for work permits and the affiliated residence permits for prostitutes. In 2015, the government abruptly stopped issuing work permits after a ruling in the Casa Blanca case suggested that the government facilitated trafficking in women by granting these work permits. The government decided to issue only work permits for ‘exotic dancers’ and to close its eyes to prostitution activities. With the Bada Bing ruling from the appeals court in hand, the government does not have to stick to that policy anymore.
The appeals court says in its motivation of the acquittal, contrary to the opinion of the Court in First Instance, that exploitation is a requirement for proving trafficking in woman. The lower court had no evidence that the prostitutes at Bada Bing were being exploited, but it still concluded that Van den Heuvel and Van den Brug were guilty of trafficking. Not so, the appeals court ruled.
The ruling also disagrees with the Court in First Instance about using the definition from the Treaty of May 4, 1910, as the foundation for its conclusions. The International Treaty of Geneva of 1933 gave the term trafficking in women a wider scope, because it narrowed the definition of the term recruitment. The Paris Treaty took out the phrase “through deceit of with the assistance of violence, threatening with violence, abuse of power or any other means of coercion” and replaced it with “even with her approval.”
Based on this change, the Supreme Court ruled in 2000 that the term recruitment applies to every action undertaken to recruit someone for prostitution in another country; moreover, there does not have to be evidence that the means of recruitment limited the freedom of choice.
Jurisprudence furthermore defined that actions can only be labeled as trafficking in women if they have been committed ‘under circumstances whereby exploitation can be assumed.” In other words, the appeals court pointed out, exploitation is an implicit component of trafficking.
The women who worked at Bada Bing were earlier working in prostitution in the Dominican Republic and they took the initiative to get in touch with Bada Bing for a job in St. Maarten.
The appeals court ruled that the women had been recruited, because manager Van den Brug asked the applicants to provide relevant documents, requested work permits, paid administrative fees, had them sign an IOU, booked plane tickets and arranged medical insurance. But Van den Brug did not transport the women, the court ruled: there is no evidence that the women were transported under supervision after their arrival at the airport.
Van den Heuvel and Van den Brug successfully denied that they had exploited the women. The court ruled that there is no evidence to prove this or that there were circumstances whereby exploitation could be assumed.
The court ruled that the women were not forced to work at Bada Bing, that they had come voluntarily to St. Maarten and that their freedom had not been limited.
The women were in a vulnerable position; two of them declared that they were indebted in the Dominican Republic; a third women said she wanted to earn money to buy an apartment in her own country. Says Merx: “They do not come here to repay a debt to Bada Bing, they come here because they make more money and that way, they are able to pay off their debts at home faster.”
The sole fact that the women lived in poverty in the Dominican Republic is insufficient to assume exploitation, the court ruled. According to manager Van den Brug, the women earned on average $1,500 per week.
That the women had to pay the cost of their ticket and an amount for housing and food is not unreasonable, the court ruled, noting that the women realized “a significant economic benefit” form their work at Bada Bing. The club did not confiscate their passports and the women were all positive about the quality of their housing.
The appeals court concludes that the women were recruited for a job in the prostitution, but that there is no evidence that they were exploited. For these reason, the court acquitted the defendants of the charge of trafficking in women.
