Opinion: A painful observation

POSTED: 06/18/12 1:03 PM

Last week Wednesday this newspaper published a story about a Saban woman who filed a complaint about the theft of $5,000 by someone who used her deceased mother’s bank card. While the complaint was filed almost nine months ago, no action has been taken yet, even though the plaintiff has identified the thief from video footage. The public prosecutor’s office told this newspaper that understaffing and the necessary prioritizing that follow from it are the reasons that the woman will have to have some more patience. Her attorney mr. Geert Hatzmann explains in this op-ed why those arguments don’t make sense.

A committee of criminal law experts led by Professor Hans de Doelder of the Erasmus University in Rotterdam is currently working hard on a new code of criminal procedures for Aruba, Curacao and St. Maarten. Based on the Dutch example, this new code will offer a more prominent place for victims. The core of this innovative approach appears from the new article 70a paragraph 2 Sv (Dutch abbreviation for code of criminal procedures – ed.) that reads as follows: “The public prosecutor takes care of a correct treatment of the victim.”
Specifically this means the following:
– If she/he appreciates this the victim is kept informed about the progress of the case by the Public Prosecutor’s Office.
– The victim is allowed to peruse documents from the case file that could be of importance to her/him.
– In serious cases (that carry a penalty of 8 years or more) the victim is entitled to address the court.
In other words, under the inspiring supervision of the public prosecutor the victim obtains certain rights and she/he will be more actively involved in the progress of the case.
I admit: these are big words. Flowers and applause seem to be called for.
Unfortunately, based on a recent lamentable case from my practice I have to note that the Public Prosecutor’s Office in St. Maarten does not seem to be completely ready for the new role it will get.
Last week Wednesday you may have read in this newspaper the story about my Saban client who had filed a complaint about the theft of her deceased mother’s bankcard and $5, 000 that has been taken from ATMs in Saba and St. Maarten with this card. Said complaint was filed in Saba on September 23, 2011 – by now almost nine months ago. In February of this year – by now four months ago – my client identified the person who committed the transactions with her mother’s bank card at the police station in Saba from video footage released by the Windward Islands Bank. It is remarkable that up to this moment this person, who lives in St. Maarten, has not been arrested.
For months the judicial authorities have wasted their time on the question whether the case would be dealt with by the BES in Saba or that St. Maarten would take it over. When my client asked about the progress in the case she was fobbed off with meaningless replies.
Finally, on May 3, my client and I learned that the Public Prosecutor in the BES had transferred the case to the Public Prosecutor’s Office in St. Maarten. It took another month, until June 4, before I received the message that the case had been officially “put out” to the detective department.
After I had communicated this to my client, she let me know that she was not able to do much with that beautiful judicial word and that she would like to meet with the public prosecutor to hear in more concrete terms what she could expect from the investigation and when.
My client indicated that the case is strongly on her mind every day, that she is unable to let it go and that she is unable to function normally. She is therefore under serious psychological duress.
Because I knew that the case officer is on vacation and will not return to work before the beginning of July, I asked the Chief Public Prosecutor to at least receive my client. On that occasion I expressed the hope that the case would now finally be dealt with.
In vain, I have to conclude. The Chief Prosecutor told me that I and my client will have to wait until the case officer has returned from vacation in the beginning of July. And at that moment we should not expect too much either because the police are heavily understaffed and violent crimes have priority. Right. The eternal mantra of understaffing and prioritizing. Let me not beat about the bush: that is plain hogwash. I will explain why.
For months the judicial authorities in Saba and St. Maarten have discussed the question who was going to handle this case. Was it going to be Saba, where the theft of a chocolate bar at the grocer on the corner is almost world news, or St. Maarten, where armed robberies are the order of the day and where a large number of murder investigations are underway? In the end the choice fell on St. Maarten. Johan Cruyff would probably have said: “But that is logical.” I would not want to go that far. I do find however that it is a display of guts if you dare to use understaffing as an argument after such decision making to explain why a case is not getting underway or why it is getting stuck. Some people might say that under these circumstances you are talking to a brick wall. I will not contradict them.
The second argument the Chief Prosecutor has fielded is prioritizing. This argument is closely linked to the first one. The reasoning is that if you are understaffed you will have to make choices about the question which cases you label as urgent and which cases can wait a little bit or have to be written off entirely. I have understood that the Chief Prosecutor has given violent crimes the label priority. I am not entirely convinced of that criterion. Is taking a solid hit during a pub fight while you are under the influence – alcohol numbs – really a more lugubrious experience than when miscreants turn your whole house upside down and rob it empty or when somebody plunders the bank account of your deceased mother with a stolen bank card? I dare to doubt that.
Apart from this I am unable to get away from the impression that no priority is a Pavlov-reaction. It is not a violent crime and therefore it is not a priority. Conveniently, it completely bypasses the fact that this is a ready-made case that can be dealt with in no-time. If such a case is not dealt with for the sole reason of rigid schematic thinking then that is very frustrating for the victim. It sounds like a good idea to me to profoundly rethink the signal no priority sends. Crudely said no priority is a euphemism for don’t whine like that or you figure it out.
As far as I am concerned that is a very wrong message that is fatal for people’s belief in the constitutional state. They have the feeling that the police and prosecutor’s office leave them out in the cold. For some it will indeed mean that they will figure it out by themselves and turn to vigilante justice. Ironically, if such vigilante justice involves violence – and that will be so in nine out of ten cases – there suddenly is a priority case according to the Public Prosecutor’s Office’s criterion.
Lastly I want to remark that my client experiences the Public Prosecutor’s Office’s indifferent attitude as a slap in the face. She feels that she is not taken seriously at all. This has fueled her feelings of outrage and disappointment about the situation even stronger. It also makes it more difficult for her to let go of it.
This is a case of secondary victimization, meaning that someone as it were becomes victim of the same crime for a second time because she/he is confronted with negative social reactions, (unwilling) functionaries and instances that do not want or are unable to help, and with exhausting lengthy, bureaucratic and expensive legal procedures.
That the Public Prosecutor’s Office does not shine in this case seems to me clear as glass. If somebody has filed a complaint already nine months ago about the theft of $5,000 and in the meantime four months ago has identified the person who stole the money based on video footage you cannot come with clichéd non-arguments of understaffing and prioritizing to justify that during all this time no action has been undertaken. My client feels abandoned by the police and the prosecutor’s office and she has lost her confidence in the judicial system.
Looking at the near future, wherein the public prosecutor emphatically gets the task to take care of a correct treatment of victims, this is a painful observation.
I hope that this case will become an eye opener. For my part I promise that I will remain on top of it.

Geert Hatzmann.
The author is a criminal defense attorney in St. Maarten.

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