PHILIPSBURG--Amendments to the new Penal Code to reflect the first ever ruling of the Constitutional Court are now ready for adoption by Parliament.

 

Justice Minister Dennis Richardson tabled the amendments in a Central Committee meeting of Parliament on Wednesday for discussion. With the session completed, the technical amendment to the Constitution, changes to 180 national ordinances and the direct amendments to the new Penal Code are now ready for final approval.

 

Members of Parliament (MPs) did not have any amendments to the proposal of the minister. They did make inquiries about the method of the changes and on other related topics.

 

The Constitutional Court on the request of the Ombudsman tested several parts/aspects of the new Penal Code against the Constitution in 2013. The Court found four of the Ombudsman's seven complaints were well-founded. Two of the four well-founded complaints led to this partial amendment of the Penal Code with reparation to articles on life sentence and early release of foreign (non-Dutch) detainees who do not have legal residency on St. Maarten.

 

The Court decided that Article 1:13 of the new Penal Code dealing with imposing life sentences was not compatible with Article 3 of the Constitution which prohibits torture and cruel, inhuman and humiliating treatment or punishment. The Court referred to the decision of the European Court of Human Rights of July 9, 2013 (Vinter case) and quashed Article 1:13 and related provisions due to an unjustifiable lack of a review mechanism. The European Court advised in its case that review takes place at the latest after 25 years.

 

The amendment to the Penal Code re-regulates the imposing of life sentences with the possibility for a review of such a sentence after 20 years. This review period was originally in the modernised Penal Code, but was taken out in the legislation process. The new provision of Article 1:30 of the new Penal Code makes the review of a life sentence possible again after 25 years. This is a different term than in Curaçao and Aruba where the review is after 20 years.

 

On the early release of detainees, Article 1:37 stipulated that detainees with no legal residency in the Dutch Kingdom who served a sentence of less than five years were eligible for early release when they have served one-third of their sentence. Detainees (foreign or domestic) with a sentence of more than five years with no place to live on St. Maarten were deemed not eligible for conditional release.

 

The Court found those provisions too arbitrary thus in violation of the principle of equality and non-discrimination as stipulated in Article 16 of the Constitution. Due to the annulment of these provisions Article 1:37 of the code has to be technically amended (read renumbered).

 

The amendment to the Constitution is only "technical," Richardson told Parliament. It entails substituting "a few references" to the relevant articles in the new Penal Code with new articles to be inserted in the code.

 

Government has opted to make the technical amendment of the Constitution by a national ordinance. In this way all provisions necessary for a just implementation of the new Penal Code will be bundled in one legal instrument, according to the minister.

 

The Daily Herald