Bar Association comments on ditching article 28 from Criminal Code

POSTED: 05/29/12 1:26 PM

“Review after thirty years is a good compromise”

St. Maarten / By Hilbert Haar – The parliament’s decision to take article 28 out of the new Criminal Code drew a “no comment” from the draft law’s architect, prof. Hans de Doelder. “I am not in a position to criticize the democratic outcome of the legislative process,” he wrote in an email to this newspaper.
The St. Maarten Bar Association respects De Doelder’s position. “He is quite right not to react. He has been hired as a criminal law expert and he has proposed this article in good conscience,” criminal law attorney mr. Geert Hatzmann said on behalf of the association. “He has elaborated on the proposal and after that his role is over.”

Hatzmann has his doubts about the parliament’s decision to drop the article that would have created the option of a review of life sentences after twenty years. “I don’t think it makes sense to ignore international standards. International law says that you have to offer so sort of perspective. And a life sentence is in principle without perspective. It’s the same with prisons: inmates must have at least the idea that there is a possibility to escape.”
Hatzmann said that he understands that people have trouble with offering that perspective to convicts with a life sentence. “I have a good compromise,” he added. “I think it would have been best to link the first review with the maximum temporary punishment of 30 years. Think about one of the gypsy-convicts; he is only 20 years now. He could be a completely different person 30 years from now.”
Hatzmann stresses that a review of a life sentence does not automatically lead to someone’s release. “A review after thirty years does justice to all involved,” he says. “But the emphasis should be on the judgment of the behavioral expert, not on the public sentiment. It is a more objective standard. Is someone still a danger to the society – that has to be in the forefront.”

Four years ago, in August 2008, De Doelder and his colleague J. Verbaan at the Erasmus University in Rotterdam wrote an opinion piece in the Dutch daily Trouw that politicians in The Hague ought to look at what was then still the Netherlands Antilles as an example for the treatment of convicts with a life sentence.
De Doelder and Verbaan are both members of the Committee that reviewed the Antillean Criminal Code. This committee noted that sentences in the Antilles were becoming more severe and that this was reason to reconsider the treatment and the humane aspects of convicts with a life sentence.
This is why the committee wrote a draft proposal designed to prevent that a life sentence turns into degrading situations. The draft, worded in article 28, stated that the court is obliged to check the position of convicts with a life sentence after twenty years. If necessary, the check has to be repeated thereafter every five years.
De Doelder and Verbaan wrote in their opinion piece in Trouw that the article’s primary objective was to prevent that the execution of a life sentence “automatically or based on improper motives results in an existence without perspective for the prisoner.”

Both De Doelder and Verbaan stressed that for every consideration about a convict with a life sentence, the interests of the victims or their next of kin have to be taken into account.
Justice Minister Duncan stressed last week in the parliament that the decision to take article 28 out of the draft legislation is in line with the policy in the Netherlands and that it does not violate the European Human Rights Treaty.
That last conclusion is debatable. The forum Humane Execution Life Sentences, established by attorney Wiene van Hintum, noted already four years ago that the number of life sentences in the Netherlands is increasing. Van Hintum pleaded for a way to offer these lifers at least some perspective, by reviewing their status after fifteen years.

De Doelder and Verbaan pointed out at the time that such a periodical review seems to be in line with the approach of the European Human Rights Court. This court is of the opinion that in certain cases a periodical review by the court is necessary.
Most political parties in the Dutch Second Chamber rejected the forum’s ideas for a more humane treatment of lifers. In that sense, the political sentiment in Philipsburg is on a par with that in The Hague. Only D66-leader Alexander Pechtold supported the idea, saying that re-socialization of convicts belongs to a civilization.
Prof. De Doelder wrote to this newspaper yesterday that Kingdom legislation does not require that the criminal codes in the Kingdom countries to be identical.

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