PHILIPSBURG--An historical event occurred yesterday in the Courthouse when the Constitutional Court of St. Maarten delivered its judgement in the first-ever case filed by Ombudsman Nilda Arduin. Arduin had filed seven complaints with respect to the Criminal Code. Four of these complaints were considered well-founded. 

The two complaints with respect to the renumbering and the ratification of the code were of a technical legal nature and have not resulted in nullification of the legislation.

 

The successful complaints concern the possibility of imposing life sentences and provisions of the Criminal Code relating to conditional release.

 

The constitutional court was founded on October 10, 2010, to test new legislation against the constitution before it is invoked. Its verdict is final and there is no option to appeal. It is the only constitutional court within the kingdom of the Netherlands.

 

The Ombudsman had requested that the Court review certain parts of the new Criminal Code for the island as to their compliance with the Constitution of St. Maarten. This type of judicial review is known as ex ante, which means a review made before the law comes into force. It was also abstract, that is without a concrete case being brought before the court.

 

The Court stated the necessity to show appropriate judicial restraint and that a review would have to be practical and effective, not just theoretical.

 

Members of the judicial panel were Common Court of Justice of Aruba, Curaçao, St. Maarten, Bonaire, St. Eustatius and Saba Judge Jan de Boer; Dutch Council of State member Ben Vermeulen; and Caribbean Court of Justice Judge Jacob "Bob" Wit, who was president of the panel and the one to hand down the verdict.

 

With regard to the possibility of imposing a life sentence, the court argued that it could not be excluded that a prisoner could be fully rehabilitated at some time in the future and that continued detention in certain cases no longer could be justified on legitimate grounds.

 

The court applied case law set by the European Court of Human Rights, and decided that even a prisoner sentenced to life must have both a possibility of review and a prospect of release. This flows from Section 3 of the Constitution of St. Maarten prohibiting cruel, inhuman and degrading treatment or punishment.

 

As the code lacks a provision for such a review and the government was not willing to undertake that in such a case a pardon might be given, the Court found itself compelled to strike down a number of provisions in the Criminal Code providing for the possibility of imposing life sentences.

 

With regard to conditional release, it was argued that the two contested provisions favoured illegal or undocumented aliens over residents of the island when sentenced to less than five years imprisonment, whereas they completely excluded conditional release for illegal or undocumented aliens when sentenced to five years or more.

 

In the case of imprisonment of less than five years, prisoners normally are released after completing two thirds of their sentences. In the new Code, the Minister of Justice can authorise earlier release for illegal or undocumented aliens, with a condition that the alien leave the island, but not with a condition not to return.

 

Illegal or undocumented aliens serving prison sentences longer than five years are not eligible for conditional early release.

The Court struck down both provisions on the basis of their arbitrariness and because they were deemed a violation of the principle of equal treatment as per section 16 of the Constitution.

 

The three complaints that were considered unfounded related to increasing the maximum sentence for theft committed against tourists, animal fights with a government permit and the possibility of organising prostitution with a permit issued by the Minister of Justice.

 

With regard to the theft issue, the judge said there was a reasonable objective for more severe sentencing when the victim was a tourist, as it was important to protect tourists who visit the island, taking into consideration the income that tourists bring to the island. The judge said this was an appropriate means to achieve this goal. However, he stressed that this legislation applied only to an offence of simple theft and did not refer to offences such as robbery and burglary.

 

With regard to animal fights, the judge stated that the Court was not in a position to strike down the legislation, but that further legislation was needed with regard to the permit required to organise such fights. The court ruled that it could not be said at this stage that the necessity of obtaining a permit did not provide a real addition to the welfare of the animals involved, but that this would depend on the conditions that would be imposed to obtain such a permit.

 

The court advised that legislation would have to be drawn up to set out the rules and regulations to which permit holders would have to adhere, and to state who exactly would be authorised to give out such a permit. Until such legislation has come into existence, the organising of animal fights will remain an offence.

 

With regard to the organisation of prostitution, the Ombudsman argued that legalising prostitution was incompatible. However, the Court ruled that legalising the sex industry would lead to better protection of the women involved and that moral considerations were a separate matter that had no bearing on whether the concept was or was not incompatible with the constitution.

 

The judge highlighted the fact that, currently, being a prostitute or using the services of a prostitute was not an offence on the island. The case related only to organising prostitution. The Court further highlighted that obtaining a permit to organise prostitution meant just that. It did not mean permit holders were allowed to break any laws or to enslave or mistreat "employees."

 

As with animal fighting, the court stressed the importance of providing clear legislation of the rules and regulations connected with obtaining such a permit.

 

Resulting from the striking down of certain parts of the Criminal Code, the St. Maarten legislature, if it so wishes, can adapt or redraft those parts of the legislation. Of course, the amendments resulting from that exercise may be referred to the Court for further review, should the Ombudsman deem this necessary.

 

Minister of Justice Dennis Richardson, who was present at the Court, referred to the laws regarding organised prostitution and animal fights, in which further legislation has to be drawn up, and praised the "adequate restraint" shown by the Court. He stated that this would allow legislators to do their jobs appropriately.

 

Minister Richardson stated that in the cases that had been struck down, there was space to adjust and make additions to fill the voids in the legislation.

 

(The Daily Herald)