Governor signs penal code into law

POSTED: 01/11/13 12:24 PM

St. Maarten – Governor Eugene Holiday confirmed yesterday to this newspaper that he signed the new penal code into law in the middle of December. The office of the Ombudsman received the legislation yesterday and it has now six weeks to decide whether it is necessary to submit it for review to the Constitutional Court.

The parliament approved the penal code on May 25 of last year amidst controversy over two changes. The parliament took article 28 out of the draft. This article gave convicts with a life sentence the right to a review of their sentence after 20 years.

In an apparent reaction to this decision, the Common Court of Justice overturned the life sentences of Curtley Allison Richardson and Sherwan Roberts last year in September and converted them into 30-year prison terms. “It cannot be said that currently in Sint Maarten the social or political will exists to take the right to a pardon as point of departure for very serious crimes,” the court stated in its ruling.

“The question arises whether the proven facts and their consequences are so serious that imposing a temporary prison sentence is insufficient and that therefore life imprisonment must be imposed in accordance with the demand by the solicitor-general,” the judges wrote in both rulings in favor of Roberts and Richards.

The judges referred to a ruling by the European Human Rights Court that says that “imposing life imprisonment is “irreducible” and therefore has to be considered as incompatible with article 3 of the Human Rights Treaty if the convict is reprieved of any perspective for release. Life imprisonment means in fact that the convict in principle remains detained until his death and that he will not return to society.”

The judges acknowledged that lifers have the option to ask for a pardon. “That cannot be excluded, but the court considers the chance (that such a request will be honored – ed.) extremely slim, given the fact that lifers are rarely granted a pardon and that the court does not know of any case wherein a request for a pardon by a convict who is sentenced to life imprisonment has been granted.”

However, in November Judge Rick Smid went against the ruling of the Common Court when he sentenced Omar Jones and Carlos Richardson to life imprisonment. mr. Smid denounced the notion that a life sentence violates the European Human Rights treaty. “For the purpose of article 3 it is sufficient that the duration of the punishment can be shortened de iure and de facto (in law and in fact – ed.).”

The Jones and Richardson ruling states that jurisprudence from the European Human Rights Court does not indicate that a provision for shortening a life sentence has to consist of a statutory regulated recurrent review of the sentence by a judge. Judge Smid noted that such a provision in St. Maarten’s new criminal code is the subject of debate “because a recurrent review during a public hearing of the Common Court brings too much social unrest and opening of wounds for survivors, as recently happened in the first review case in Curacao.”

In St. Maarten the possibility exists to pardon a convict who is serving a life sentence, the ruling states. In cases of urgent necessity convicts also have the option to call on article 43 of the code of criminal procedures and ask the court for a provision.

Judge Smid ruled in November, based on the position that no prior life sentences have been imposed in the country.

The second controversy in the penal code is about the fact that the parliament forced an amendment to article 539 that prohibits cruelty against animals. “Cultural, organized and structural activities” are now exempt from this ban, making it possible to legally organize cock fights. Animals R Friends President Monique Hofman announced in May of last year that she would ask the Ombudsman to look at the legislation and to take it to the Constitutional Court for review.

Justice Minister Duncan said when parliament passed the penal code that incidental cockfighting in backyards keeps falling under article 539” and that people who set up “organized events” need a business license for their activity.

A petition against the amendment to article 539 gathered thousands of signatures that were presented to the governor last year.


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