Justice handicapped in fight against crime

August 11, 2010 7:33 AM

AMSTERDAM - Dutch attorney at law Gerard Spong is predicting that the Public Prosecutor's Offices in the Netherlands Antilles and Aruba will encounter great difficulties in a number of large criminal cases. This has to do with the limited legal possibilities to use extraordinary investigative methods, such as telephone tapping.

Spong stated this in a publication of the Dutch daily NRC Handelsblad on Monday. The article was headlined "Justice Antilles and Aruba handicapped in fight organised crime".

Spong, who acted as attorney for several Antillean suspects, including Anthony Godett, Derrick Holiday, Marcel Loor and the late Claude Wathey, is well acquainted with the justice system on the islands. He based his expectations on a February 2010 ruling of the Joint Court of Justice in Willemstad.

The Court in that ruling decided that there were insufficient legal provisions to deploy extraordinary investigative methods, such as telephone tapping, observation or infiltration, and, as such, these methods violated the European Treaty of Human Rights EVRM.

According to Spong, "Dark clouds are hanging above justice in the Caribbean." "Judges in Willemstad and Oranjestad have managed to cover the legal deficiency for years, using short cuts that police legislation offers for investigations. But Judges over there are also held to jurisprudence of the European Courts and the latter has become more critical about the illegal use of investigative methods. It is becoming harder to cover (these legal gaps). That can only happen when things are legally sound," said Spong in the article.

According to NRC Handelsblad, the Public Prosecutor's Offices on the islands are making use of these alternative investigative methods as little as possible since the ruling of the Court in February, to prevent that they, or their evidence, are being declared inadmissible in Court. That has already taken place in St. Maarten and Aruba.

"We are now limited in our investigative possibilities," Aruban Chief Public Prosecutor Peter Blanken stated in the article. "Politics has to make haste with the legal arrangement," he said. Ministries of Justice in Willemstad and Oranjestad apparently are working feverishly on legislation to cover the legal gap.

NRC Handelsblad wrote that the Ministry of Home Affairs and Kingdom Relations BZK in The Hague is "keeping a keen eye at the race against the clock in the Netherlands Antilles to close the legal gap before October 10, 2010" when the Antilles are being dismantled.

"In 2007, money and civil servants capacity was made available to the Antillean Government to modernise the Penal Code. The draft Penal Code has been ready for a while, but they waited too long with the production of the accompanying legislation," stated the article.

For the BES islands, Bonaire, Saba and St. Eustatius, which will become part of the Dutch Constellation per October 10, a ministerial decree will suffice.

NRC Handelsblad also quoted criminal law professor Ybo Buruma of the Radboud University Nijmegen, who also foresaw problems with current criminal cases. "It really is inconceivable that, ten years after extraordinary investigative methods were legally arranged in the Netherlands, this has not happened in the Netherlands Antilles and Aruba," he stated.

"Tapping of telephones, deploying citizen infiltrators and systematic observation are means that severely intervene in the privacy of people, even if they are suspects. It is allowed, under certain conditions, but it has to be clear that there should be a sound legal basis for that," said Buruma.

One of the criminal cases that might run into trouble, said the newspaper, is the case against Bonaire politicians Ramonsito Booi and Burney Elhage. "In this criminal investigation, Antillean and Aruban investigation services cooperate with colleagues in the Netherlands and the US. "It remains to be seen whether the collected evidence in this case will uphold in Court," the article stated.

9 August, 2010