Attorney Cor Merx’ impression of the new criminal code: “A paste and copy exercise”POSTED: 07/21/15 6:46 PM
Attorney Cor Merx shows the new criminal code (left) and the previous one at his Front Street office. Photo Today / Hilbert Haar
St. Maarten / By Hilbert Haar – The new criminal code for St. Maarten went into effect per June 1. It is a modernized version of the previous code that dated back for the most part to the nineteenth century. The new code contains improvements and adjustments, but attorney Cor Merx is not at all happy with the result: “This is a paste and copy exercise, taken from the Dutch criminal code. This has nothing to do with St. Maarten.”
Merx notes that criminal law is always lagging behind what is happening in the community but that the new criminal code contains a number of measures nobody in St. Maarten has asked for. “If the community is not ready for a measure, you should not impose it either,” he says.
As an example, he mentions the legal age of consent for sexual intercourse. “That went from 15 to 16 years and I find that patronizing. How do you distinguish the curves of a 14-year-old from those of a 16-year-old? Who asked for this? Was there a call from the community? The answer is no – there was not.”
The question is of course whether the legislator increased the age limit to protect children against sexual predators. Merx does not doubt the good intentions, but he questions the measure’s usefulness.
As an avid reader of the Czech writer Franz Kafka, Merx uses his Brief an den Vater (Letter to the father) to illustrate his point. “Kafka had at a young age a predisposition for bronchitis. The love of his parents kept him inside the house for fear of him catching pneumonia. But in Brief an den Vater he writes that he experienced this as paternalistic. That shows how love and protection are very close to each other.”
Copies of the new criminal code, with a happily colored cover depicting the courthouse in Philipsburg, are on the attorney’s desk. He has not gone through it all yet and what irritates him is that the code was published without an index. That makes searching the pages on keywords impossible. “You have to go by the table of contents and the chapters to find what you are looking for,” Merx said. “I consider asking the Bar Association to produce this index ourselves.”
Nevertheless, there are a few issues that stand out in the new rulebook for the underworld – some good, some the subject of Merx’ criticism.
To begin with the latter, the attorney wonders why the maximum penalty for money laundering has dropped from 12 to 6 years. “Where does that come from?” he wonders. “In the Netherlands the average penalty is a prison term, but with a large part conditional, combined with community service.”
The new code makes smoking aboard airplanes a crime. “Is that necessary?” Merx wonders. “Are we really going to prosecute that? Will the police come when an airline calls that it has a smoker on board? We have no capacity for that at the prosecutor’s office, or at the court, but introducing such an article creates expectations in the community. And besides, how often does something like this happen?”
Other new punishable acts are making amok in an airplane and reporting a false alarm. The latter applies for instance to the bomb alert against a KLM flight at Princess Juliana International Airport on July 2. Previously the code did not offer options to prosecute false alarms. This may have been the reason why the authorities in St. Maarten left prosecuting a female crewmember of the cruise vessel Celebrity Reflection – who joked on January 7 that she carried a bomb when she returned to the ship – to American authorities.
The investigation into the latest bomb alert is still ongoing and the prosecutor’s office is not giving anything away about the state of affairs.
The measure of executing conditional sentences – know under the Dutch acronym TUL – has undergone a change as well. Previously, when the court sentenced suspects for a crime while they were still on probation (meaning that a conditional part of a previous verdict is still open), it was up to the prosecutor’s office to take the suspect to court for a separate conviction. Based on the new criminal code, the court has the authority to add the conditional part of a previous sentence immediately to the new sentence. What is more, suspects facing a TUL could be arrested for it.
“Under the new rules a suspect can be arrested for a TUL,” Merx says. “This is however not pre-trial custody that is subject to review by the Judge of Instruction. It is simple custody under the authority of the prosecutor’s office. After such an arrest, you are behind bars until the trial. So the prosecutor’s office could order an arrest and leave someone locked up until trial and as an attorney there is nothing you can do against it. And it takes always three to four months before a case goes to trial.”
Merx also spotted some improvements. “Causing someone’s death in traffic by driving recklessly now carries 4 to 6 years. Previously that was 2 years and that is not enough to keep someone in pre-trial custody. This is a good measure for the community,” Merx says with a reference to the driver of a runaway truck that killed 12-year-old Sylvia Lynch in May 2011. “Under the law at the time, he could not be locked up. They could take him in for interrogation, but after six hours, they had to let him go.”
The court later sentenced the driver to a 9-month conditional prison sentence and 240 hours of community service and conditionally revoked his driver’s license for two years.
Merx notes however that proving “reckless driving” is a huge challenge. In a recent court ruling in the Netherlands the Supreme Court ruled that there was no evidence for reckless driving against a man who had seven times the legal alcohol level in his blood when he caused a serious accident.
Closer to home, the Court in First Instance ruled in the case against Alexander Dwarkasing, who killed David Charles with his car on Bishop Hill road while he was bone tired and under the influence of alcohol, that there was “insufficient evidence for reckless driving” even though the defendant had a blood-alcohol level of 0.0233 percent – and was therefore blind drunk.
The court referred to the high demands the Supreme Court has set for reckless driving and noted that there is no evidence that Dwarkasing was driving too fast when he caused the fatal accident. The court qualified Dwarkasing’s driving skills at the time of the accident as “highly careless and inattentive.”
That the criminal code makes “driving under the influence of alcohol and mind-expanding substances” punishable is something that also drew Merx’s attention. “This is subjective, because there is no limit for the amount of alcohol you are allowed to drink before you get in your car. I associate the term mind-expanding substances with pep pills. But the explanatory notes speak of narcotics.”
Breathalyzer tests are not useful to address these issues, Merx said. “Why would you do that? We live in a country where people have been drinking their beers for decades and afterwards they drive home without causing accidents. How many fatal accidents do we have that are caused by alcohol? Most of the accidents are one-sided. We have a capacity problem and if you introduce this and you are going to control it, you will suddenly be faced with a large number of punishable acts. Again, if the community is not ready for it, you should not impose such measures.”