Judge orders immediate release two foreign drug smugglers

POSTED: 04/23/12 1:57 PM

Court slams Duncan’s early release policy

St. Maarten – The Common Court of Justice made mince meat of Justice Minister Roland Duncan’s early release policy by ordering the immediate release of Joel Mark and Gerald René Collet on Wednesday. The two men were serving a 5.5 year sentence for the 2008 Nisa Bula drug smuggling case. After serving one third of their sentence, they were eligible for conditional early release, but Duncan refused to let them go. Attorney Mr. Shaira Bommel filed a request with the Common Court of Justice in March to obtain early release for her clients.

The Common Court sentenced both Collet and Mark on March 24 of last year to 5.5 years. Both defendants went in cassation to the Supreme Court, but this court has not yet heard the case.

Mark and Joel were arrested on June 2, 2008, when the Nisa Bula anchored in Great Bay with engine trouble. When the Coast Guard inspected the vessel, officers found 483 kilos of cocaine. The ship’s captain, 53-year old Dutchman Rudolf Spees, was sentenced to 8 years; he is serving his time in the Netherlands.

On January 30, Minister Duncan turned down Mark and Collet’s request for early release. They appealed to the common Court which voided the refusal and ordered the Minister on February 16 to take a new decision before March 15.

In his initial refusal, Minister Duncan’s argument was that he would be unable to monitor whether the petitioners would stick to the conditions set for early release, because they would be deported to their native countries. Collet is a restaurateur from France, and Mark is a fisherman from Grenada.

“It has not been established that he has made this policy publicly known; therefore it has no external effect,” the court ruled.

“Insofar he means to state that he has a consistent course of action that foreigners are not granted conditional release, he has substantiated this position insufficiently,” the Common Court ruled in February.

On March 13, Minister Duncan again denied the two inmates their early release. This time, the motivation was different: the minister stated in his decree that his policy is that foreign criminal convicts that are sentenced to more than five years do not qualify for early release.

The court conceded in its ruling that the decision to grant early release is the Minister’s discretionary authority and that it has to respect this. Only the lawfulness of the policy is subject to the court’s scrutiny. But the Common Court did not judge this aspect.

Instead, it looked at the Minister’s position that he has made his policy towards foreigners publicly known. To substantiate this position, the minister referred to articles in the LTU, the national ordinance admission and expulsion.

“The court is unable to follow the minister’s position. The articles in the ordinance are about the authority to refuse a temporary residence permit and to deport or detain a foreigner. These articles are not a policy and certainly not a policy that foreign criminal convicts with a sentence higher than five years will not be granted early release.”

Duncan’s policy does appear in writing in an internal document. It is undated and not signed; according to the attorney for Minister Duncan, Mr. A.G. Baly it was distributed to the prison, the Rehabilitation Bureau and the prosecutor’s office. The court was unable to establish whether the document’s content was earlier known to inmates at the House of detention and to St. Maarten’s population.

Duncan informed the court that his ministry follows since 10-10-10 a “steady line of approach” that has been started “by the relatively young country St. Maarten.”

But the court noted that Collet and Mark were the first to be denied their early release.

“The court cannot conclude that there is already a steady line of approach.”

The court ruled that Minister Duncan is not bound by his policy and that the minister cannot refer to this policy to justify his refusal.

Duncan told the court that St. Maarten has a vested interest in effective crime-fighting.

“The policy is to decisively tackle illegal residence and nuisance caused by criminal foreigners. St. Maarten must not become a country where foreigners have the impression that they are able to commit serious crimes and affect the society’s security, without having to take the full consequences by not serving their full sentence. St Maarten must not indicate that crime pays,” the minister stated.

The court noted that the prison and the rehabilitation Bureau did not follow the minister’s policy, because they issued a positive advice about both requests for early release.

“If the request for early release by the petitioners would have been categorically refused because they are foreigners, there would have been no need for advice about their behavior.”

The court noted that the Rehabilitation Bureau and the prison apparently were unaware of the ministry’s policy. This strengthened Mark and Collet’s belief that their request would not be turned down categorically, simply because they are foreigners.

Because the Rehabilitation Bureau and the prison gave a positive advice about the inmates, the court also saw no reason to assume that they would again commit serious crimes after their early release.

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