Court rules against admission by right of Slowakian citizen

POSTED: 12/18/14 11:01 PM

Great Bay – St. Maarten does not have to admit Svetlana Kostelnikova by right to its territory. That is the gist of a ruling the Common Court of Justice published on Monday. In March the Court in First Instance ruled that the Slowakian national was entitled to admission, but Minister of Justice Dennis Richardson appealed that decision.

The verdict is a disappointment for Kostelnikova and her attorney Willem Nelissen, who maintains that the court made a mistake. The court based its decision on the – according to Nelissen incorrect – assumption that the woman sought admission as an employee.

“Nobody has asked for admission as an employee; this has never been part of the dispute,” Nelissen stated in an email to this newspaper. “It was purely about discrimination based on European Union-law but the court does not address that aspect.”

A ruling in favor of Kostelnikova would have opened the door for residents of all 28 European member states to migrate to St. Maarten. Nelissen, an attorney at Lexwell, said that the case is over for his client, but that he will pursue the issue in the future.

Aernout Kraaijeveld, the attorney for the justice minister, notes that the court annulled the March-ruling from the Court in First Instance “because Ms. Kostelnikova is an employee. Because she does not want to establish herself as an independent or for the purpose of establishing and managing a company, the OCT-decree does not give her any rights.”

The ruling the Court in First Instance published on March 14 shows that Kostelnikova requested admission by law based on the fact that St. Maarten is an OCT (Overseas Country and Territory), claiming the right to establish herself in the country under the same conditions as European Dutch based on the principle of non-discrimination.

The argument referred to the Dutch-American Friendship Treaty that gives American citizens the same rights as European Dutch in St. Maarten as far as admission is concerned.

The court accepted however the minister’s argument that Kostelnikova had asked admission as an employee. This status also appears from the documents she filed with her request for admission on September 12, 2012. Apart from copies of her valid passport, birth certificate and proof of good behavior, Kostelnikova also submitted a statement from her employer.

Nelissen notes in his comment on the ruling however that his client never sought admission as an employee, but that she based her request on the principle of non-discrimination.

This argument is based on aritcle 45 of the decree of the European Commission that regulates the association of the Overseas Countries and Territories (OCT) with the European community. That article states that the OCTs “treat companies and residents from member states not less favorable than companies and citizens from third countries and do not apply discrimination to companies and citizens from the member states.”

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