PHILIPSBURG--In an interim decision, Constitutional Court President Jacob "Bob" Wit announced Thursday that the Court will be reopening the hearing in the case filed by Ombudsman Nilda Arduin-Lynch against the Government of St. Maarten as it pertains to life sentences.

 

Judge Wit presented the Constitutional Court's decision from Curaçao via teleconferencing, witnessed in the Courthouse's Flamboyant Room by government's legal team headed by attorney-at-law Richard Gibson Jr. and the Ombudsman's delegation. Acting Governor Reynold Groeneveldt, President of Parliament Gracita Arrindell and Minister of Justice Dennis Richardson were among the audience.

 

The possibility of imposing a life sentence in the new Criminal Code and the withdrawal by Parliament of conditional release of prisoners after having served at least 20 years of their life sentences, were among six articles in the new Penal Code submitted by the Ombudsman to be declared null and void because they were considered to be in violation of the Constitution.

 

The Ombudsman also is seeking annulment of amendments to the penal code that would make cockfighting legal and annulment of an article that imposes higher sentences for crimes committed against tourists.

 

In addition, the Ombudsman is of the opinion that the early release of foreign detainees who have been sentenced for terms of less than five years and the exclusion from conditional release of foreign detainees who have been convicted for terms of more than five years are not compatible with the Constitution.

 

The Ombudsman also requested that the Court annul the implementation of a permit system for the exploitation of prostitution.

 

The public hearing in the entire case took place on July 2. At the closing of the hearing, the Court informed parties that it would deliver its judgment on September 30. However, in view of a ruling of the Grand Chamber of the European Court of Human Rights (ECHR) of July 9 that dealt with an issue similar to the one brought before the Constitutional Court, it was decided to reopen the case where life sentences are concerned.

 

The new Criminal Code initially contained a Section 28, which provided that a prisoner sentenced to life could be released conditionally by the Court of Appeals if at least 20 years of the sentence had been served and if, in the Court's view, continued imprisonment no longer would serve a reasonable purpose. If the Court did not grant a conditional release, a further review would take place periodically every five years.

 

However, Parliament removed this section from the draft criminal code. The Ombudsman is of the opinion that the removal of this section from the original law constitutes an infringement of Section 3 of the Constitution, which prohibits "cruel, inhumane or degrading treatment or punishment."

 

With regard to the issue of whether periodical judicial review of a life sentence would be required at some point in time after the imposition of that sentence, the Constitutional Court noted that ECHR had ruled in a similar issue one week after the public hearing here. ECHR stated, "For a life sentence to remain compatible with Article 3 (of the European Convention on Human Rights), there must be both a prospect of release and a possibility of review."

 

Although the European Court did not prescribe what form the review should take or determine when it should take place, it clearly supported "the institution of a dedicated mechanism guaranteeing a review no later than 25 years after the imposition of a life sentence, with further periodic reviews thereafter."

 

ECHR concluded, "Where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention." Moreover, the Constitutional Court quoted ECHR as saying, "The judgment clarifies that the review of a life sentence should be broader than one solely based on 'compassionate grounds.'"

 

Given "the well-nigh similarity" of Section 3 of the Constitution and Article 3 of the European Convention, this recent judgment could be relevant for an assessment of the compatibility of Section 1:13 of the new Criminal Code with the Constitution.

 

Under these circumstances, the Constitutional Court considered it necessary to allow government and the Ombudsman to address the possible implications of this judgement.

 

To this end, the Constitutional Court requested that both parties file written submissions no later than September 6, after which they will have the opportunity to file their written replies no later than September 27.

 

In particular, parties are requested to give their views on whether, and if so to what extent, ECHR's judgment should have a bearing on the interpretation of Section 3 of the Constitution, and whether there should be any consequences for the compatibility of the present provision in the new Criminal Code on life sentences with Section 3 of the Constitution.

 

In addition, the Constitutional Court requested that government answer six questions on this matter, including questions about the number of prisoners sitting out life sentences in St. Maarten and the time served by these prisoners at present.

Government was also asked whether any petitions had been filed on behalf of these prisoners, at what point in time after imposition of the sentences these had been made and what the results of these petitions had been.

 

Section 118 of the Constitution reads: "A pardon shall be granted by national decree, after an advisory opinion has been obtained from the sentencing judge, in compliance with regulations established by or under a national ordinance."

As far as the Constitutional Court is aware, no such national ordinance has been established yet. The Court wants to know whether this impression is accurate; if so, whether efforts are being made to establish the ordinance; and, if so, what the status of this piece of legislation is.

 

Judge Wit said the Constitutional Court would present its final decision on the case in its entirety on Friday, October 18.

 

(The Daily Herald)

 

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