More leeway for prosecutor’s office to investigate politiciansPOSTED: 03/21/16 7:09 PM
St. Maarten News – The Common Court of Justice has relaxed the rules for the prosecution of politicians in considerations it laid down in a decree about the order to prosecute independent MP Silvio Matser.
The court finds that for investigative methods that due to their nature should be done unannounced – like tapping data traffic and house searches – do not require an order from the Common Court to prosecute. Up to now, the opinion was that the prosecutor’s office needed the approval of the Common Court to investigate politicians. But the court says now that such an order is not needed either for the start of an investigation.
With its opinion, the court has brought the possible prosecution of politicians more in line with the rules that apply to other citizens.
During the verbal hearing about the Matser-case the court indicated that it would present further considerations about the question whether an order from the Common Court was required for a legal house search.
For its opinion, the court examined the constitution and the national ordinance that regulates the prosecution of politicians.
The key issue is the definition of the term prosecution. That is, in the opinion of the court a situation whereby the prosecutor’s office involves the judge in a case. Acts of prosecution are for instance the demand for police custody (voorlopige hechtenis), summoning the suspect and the demand for a judicial preliminary investigation. This means in the opinion of the court that a criminal investigation into suspicions against a politician does not require an order to prosecute from the Common Court, because there is no judge involved in this stage of the process.
When the situation requires it, such an order is issued upon a request by the attorney-general. This order gives no guarantees for pre-trial detention, because that decision remains the domain of the Judge of Instruction.
The Common Court notes that politicians enjoy the same protection against criminal prosecution as other citizens do and that they have additional protection based on the constitution and the ordinance that regulates the prosecution of politicians.
“It is however not justified that a politician enjoys a further-reaching protection against prosecution than from what follows from the constitution and the national ordinance,” the opinion states. “The intent of the articles in the constitution and the national ordinance is to guarantee that a politician does not lose his political function or is suspended from this function based on insufficient grounds.”
This means that the prosecution is inadmissible if it summons a politician, or if it puts him in pretrial detention, without an order from the Common Court.
The Common Court defines the order to prosecute not so much as an order but as a mandate to the Public Prosecutor’s Office to execute its intention to prosecute.
“Once the prosecutor’s office has obtained an order to prosecute against a politician, it does not need another order to demand the pretrial detention or to summon the suspect to court.”
At the same time, the order to prosecute does not include the order to demand pretrial detention or to summon the politician, the Common Court said in its opinion.