New penal code abolishes minimum prison sentences

POSTED: 01/26/11 1:14 PM

Higher threshold to try youngsters under adult law

St. Maarten – The new penal code for Country St. Maarten will limit the possibilities for judges to try 16 and 17-year old suspects under adult law. Only if three conditions are met youngsters will be tried as adults. Their offense must be a severe crime, they must have an adult personality and there must be aggravating circumstances.
Hans de Doelder, a professor of criminal law at the Erasmus University in Rotterdam and currently advisor to the governments in St. Maarten, Curacao and Aruba, gave a presentation in the Central Committee of the parliament about St. Maarten’s new penal code yesterday morning.
After the presentation, De Doelder told this newspaper that the articles in the code relevant to the youth are as far as he is concerned the highlights of the draft legislation.
The conditions mentioned above give judges more possibilities to stay with the youth criminal code, the professor said.
The draft legislation also foresees the establishment of HALT projects, designed to avoid that youngster’s names end up in a police report. Juvenile detention is limited to four years; the legislation gives judges also the option to place juveniles in institutions – the so-called PIJ (Placement in Institutions for Juveniles). “But those institutions still have to be built,” De Doelder said.
Another highlight in the penal code is that minimum sentences will be abolished. De Doelder is a proponent of this. In October of last year he wrote an opinion piece in the Dutch newspaper Trouw establishing his opposition to government plans to introduce minimum sentences.
The Dutch government argues that criminality is on the rise and that penalties are too low. “Both statements are untrue,” De Doelder wrote.
Because Dutch law does not regulate mitigating circumstances that could give judges the tools to judge cases on their individual merits, the introduction of minimum penalties would take away the option to take special circumstances into consideration.
De Doelder wrote that minimum penalties would violate the European Human Rights Treaty and that they would also undermine the call of society for judges to better motivate their verdicts.
St. Maarten’s penal code makes it possible for convicts to serve their prison time elsewhere in the Kingdom, for instance in Curacao or even in the Netherlands. The code does not follow the Dutch trend towards less community service and more fines, but it does contain an article that provides an ability-to-pay-principle.
The code limits circumstances whereby judges are able to take away a suspect’s active and passive voting rights.
It becomes easier for the prosecutor’s office to seize illegal assets, because the code reverses the burden of proof. Not the prosecution has to prove that an asset has been obtained illegal; defendants must prove that they obtained it legally.
A unique article regulates the right to self-defense when someone’s privacy is violated. This applies for instance to home burglaries. Residents using violence against intruders will get the benefit of the doubt and his or her acts will be considered self-defense unless later investigation shows otherwise.
“This is a regional provision, a bit like Texas-legislation,” De Doelder said. “There is more possible in this respect in St. Maarten than there is in the Netherlands. But I hear that there are people who want to introduce this into Dutch law as well.”
De Doelder dedicated some time to the special investigation methods that will be regulated in the law. “St. Maarten will have to do this together with Curacao and Aruba.
It is possible to propose changes, but these will have to be discussed with Curacao and Aruba. In the end the text of this legislation has to be identical on all three islands,” De Doelder said.
St. Maarten needs this so-called BOB-legislation to enable it to cooperate with international investigations. The abbreviation BOB stands for buitengewone opsporings bevoegdheden (special investigation authorities). Currently, investigation methods are regulated based on a law from 1926. Because the methods violate citizens’ privacy, they have to be regulated by law, De Doelder said.
The methods are allowed to investigate serious crimes and terrorist activities. They are subject to approval by the prosecutor and a judge of instruction.
When the parliament approves the legislation, the following methods will be at the disposal of investigators: systematic observation; infiltration; pseudo-purchase; systematic collection of information; entering closed premises; recording and investigating communication; bugging; demanding information; infiltration by civilians; and letting through.
The last option, letting through, applies for instance to drug transports. Investigators who want to track down other parties in a drug smuggling ring will get the possibility to let drugs enter the country, then track the shipment to others involved in the transport.
De Doelder said in answer to questions by several parliamentarians that the BOB-legislation violates privacy-rules, but that St. Maarten still has to write its own privacy legislation.

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