Bar Association wants sanctions against violation of special investigation methods

POSTED: 12/21/11 10:02 AM

No sentence reduction, but exclusion of evidence

St. Maarten – The national ordinance that regulates special investigation methods ought to contain an article that forces the court to exclude evidence obtained through a violation of these methods. Right now, the court is reluctant to do this, and it opts usually for a sentence reduction, Bert Hofman, the dean of the local Bar Association, told the Central Committee of Parliament yesterday afternoon.

Hofman pointed out that the legislation regulating these special investigation methods (like structural observation and infiltration) has to be exactly the same in St. Maarten as it is in Curacao and Aruba. “That will not be easy, because we heard that Curacao wants to go a completely different route,” he said.

The Bar Association does not have a problem with the special investigation methods. “But in a democratic society like ours, exercising these powers must be subject to stringent conditions. We need to keep an eye on possible violations that amount to an invasion of privacy. The need for the use of these methods and the right to privacy needs to be balanced.”

Hofman said that when law enforcement uses these special investigation methods, they should be carefully registered and this information must be part of the criminal dossier. He also stressed the need for law enforcement to comply with the existing legal framework.

Hofman’s main concern however is about the way the court deals with rule-violations. While the law offers three options – reduced jail sentence, exclusion of evidence and declaring the prosecution inadmissible – to deal with procedural violations, Hofman said that the court seldom goes beyond the first option.

“Violations of the use of special investigation methods should at least be punished in court with the exclusion of evidence,” Hofman said. “That has to be specifically worded in the draft ordinance.”

The dean said he is satisfied with the stipulation that citizens who become the subject of a special investigation method must be notified. He also applauded the fact that information gathered via these methods will have to be destroyed after an investigation is completed.

Hofman said that the systematic gathering of communications within dwellings, as the draft ordinance allows, is at odds with article 5 of the state regulation that guarantees the right to privacy. Violations in this respect have not been regulated in the draft, Hofman pointed out.

MP Louie Laveist, the only Member of Parliament who has personal experience with structural observation by law enforcement, said that as far as he is concerned the ordinance is “dead on arrival.” He jumped on the privacy-article in the state regulation and spoke of “tinkering with the constitution.” Laveist said that, if the public prosecutor’s office uses these far-reaching powers and it abuses them a case ought to be thrown out. “They have to play by the rules.”

Laveist is a living example of the way the court deals with special investigation methods, but in parliament he did not refer to his own case in so many words. When he was a suspect of bribery in 2008 the prosecutor’s office used with the attorney general’s permission structural observation supported by tracking equipment between April 21 and May 5.

On February 11 of last year, the appeals court ruled that the use of these methods amounted to “a more than limited violation of the defendant’s fundamental right to privacy.” The court referred to an article in the European Human Rights Treaty to support this position.

That article states that the special investigation methods must be regulated by law and this was not the case in 2008. The court noted that excluding evidence was not an effective sanction in this particular case, because the court also arrived at a guilty verdict without the information investigators obtained through structural observation. The court compensated Laveist for this violation by making the 6-month prison sentence it meted out to him fully conditional.

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