Opinion: A solution for suspects in Saba and Statia

POSTED: 01/11/12 12:51 PM

By Geert Hatzmann

As a result of 10-10-10 the position of suspects in criminal cases in Saba and Statia and the working of the on-call arrangement for attorneys for these islands has changed: where the Saban and Statian administration of criminal justice first resorted under St. Maarten, now Bonaire is the headquarters for the new “district BES.”
The past year – 2011 – I took part as an attorney in the on-call arrangement for Saba and Statia, and unfortunately I have to conclude that the previously mentioned change has appeared not to be an improvement.
In this treatise I will explain my points of criticism and make recommendations for the future.

Bad communication from the Prosecutor’s Office and the Judge of Instruction
It has happened more than once that suspects were transported from the police station in Saba to the station in Statia or from the station in Statia to the House of Detention in Bonaire without informing me as their attorney; I had to learn about these transfers through family members.
In my opinion this is bad: as an attorney I am entitled to know where my client is being detained, so that I know where I have to call if I want to speak with my client. This also makes a weird and bad impression on the family if they learn about the transfer before the attorney: it creates the impression that the attorney is indifferent and does not take the case seriously.
It has also not always been communicated clearly when and before the Judge of Instruction of which island territory clients were arraigned.
It can of course not be so that when you want to submit a request to end or suspend your client’s preventive custody you are completely in the dark about the question which Judge of Instruction – the one of Saba, the one of Statia or the one of Bonaire – you have to submit your request.

Method of arraignment is unfortunate
I also do not have a good word for the way arraignments are taking place. These should occur via a videoconference system, but this system does not work properly yet. Therefore we have to use email and telephone.
In my opinion this is an unfortunate situation. I am only able to explain my position about a case before the arraignment at the Judge of Instruction and I do not have the opportunity to react to what happens during an arraignment. I also have no clue about what exactly happens during the arraignment.

Problematic detention situation

Banished to Bonaire
Before 10-10-10 more serious cases were detained in St. Maarten. Now they go to the House of Detention in Bonaire. This is a highly undesirable development for several reasons.
First of all the banishment to Bonaire means effectively that Saban and Statian defendants are no longer able to receive visitors. A trip from these islands to St. Maarten was in terms of time and money within reach of many people. But a trip to Bonaire takes too much time and too much money. If you have a job you are not able to stay away from your work for two or three days – and certainly not for a visit of half an hour. A ticket of several hundreds of dollars is of course also a significant expense that the majority of the people are unable to afford regularly, and certainly not weekly.

Just like in an American movie
One could also ask the question whether such a visit is inspiring. I have seen the visitor’s room in the House of Detention in Bonaire on December 13 of last year and I was shocked. “Just like in American movies,” is probably the best description. The visitor’s room consists of a long table with a large number of chairs behind it and glass separations on top of it.
During visiting hours the detainees sit on one side of the glass, and their family members sit on the other side. It is not possible to embrace each other, and communication goes through a hole in the glass, while the whole space is filled with a cacophony of the voices of all the other detainees and their family members. In other words: there is no privacy and suspects are unable to have real conversations with their loved ones. If a detainee, understandably, has been looking forward to the visit of a lover or a family member, such a worthless visit can be experienced as a letdown and a source of frustration.

The pariahs of the prison population
Unfortunately not receiving visitors is a relatively small problem for Saban and Statian suspects who are detained in Bonaire. Do I have something to eat today? Will I be forced to get into an argument with guards or into a fight with a fellow-inmate? Or will I maybe be beaten and stabbed? These are daily and real questions for Saban and Statian suspects in the House of Detention in Bonaire. They are the pariahs of the prison population. They usually do not speak the language of local inmates and they are being treated as outcasts. Their food is thrown away; they are intimidated and ill-treated, and forced to display deviant behavior towards guards or to fight with other detainees.
Refusing or reporting an incident to prison staff is not an option: they will only be intimidated more and be ill-treated more. One of my clients told me that he fears for his life every day, and he called the House of Detention in Bonaire a hell.

The trials in Bonaire
Lastly I have some critical comments about the administration of justice to Saban and Statian suspects.
The less serious cases of suspects who are free, are tried in their own country, while the more serious cases of those who are still detained on the trial date, are tried in Bonaire. The prosecutor’s office argument is that this saves on the costly transport of suspects from the Windward to the Leeward Islands.
Euphemistically put the pragmatic solution apparently prevails over then principle. Was it not so that in Saba and Statia a Calimero-feeling took hold when their criminal cases were tried in St. Maarten and that for this reason – in any case after 10-10-10 but also before that date – Saban criminal cases were tried in Saba and Statian criminal cases in Statia?

Put more pointedly one could argue that the good distribution of justice is being frittered away; apparently the right of the Saban and Statian community to try their suspects on their own island does not carry much weight, and apparently it does not matter too much that those who want to attend the trial of their loved ones and offer moral support are saddled with expenses. It also does not matter that much that an attorney from St. Maarten is not available for his clients in St. Maarten for two to three days.
And what to make of the plaintiffs or victims who would like to see what happens with – I’ll take it from their perspective here – the brute who ill-treated them, robbed them, raped them, or took the life of their loved one? If these people want to attend the trial their travel and accommodation expenses are not compensated beforehand, and it is questionable whether they will be able to get that compensation later on from the convict.

Recommendations

So far my complaints. What should happen to make sure that the administration of justice in Saba and Statia goes properly in the future?

Moving on-call duty to Bonaire?
The attentive reader will have notices that the 10-10-10 dogma is not applied consistently. On the one hand it is an absolute no-no that Saban and Statian criminal trials take place in St. Maarten, but on the other hand attorneys in St. Maarten are good enough to travel to Bonaire for a Saban or a Statian client.
If Saba and Statia suddenly have nothing to do anymore with St. Maarten, and that they fall under Bonaire now, it would be more logical to charge the Bonairean advocacy with the on-call duty for Saba and Statia.
For the early stage of a case it does not make any difference: when a suspect is detained in Saba or Statia, an attorney from St. Maarten will in principle not travel over there; the contact between attorney and client goes via telephone, and it makes no difference whether he gets legal assistance from someone in St. Maarten or from someone in Bonaire.
But for the next stage, due to the current detention and trial-practice, it is a big advantage for an attorney to be established in Bonaire. In more serious cases suspects spend the better part of their pre-trial detention in Bonaire. A local attorney is able to visit and discuss the case face to face; that is much more agreeable than doing this via telephone.
The trials for more serious cases also take place in Bonaire. It is much more convenient when the attorney is already in Bonaire and does not have to come all the way from St. Maarten.

Bonaire is not the solution
The downside is that Bonairean attorneys will have to travel to Saba or Statia for even the most insignificant cases. It would happen to you that you have to lose three days on a fifteen minute court hearing about simple ill-treatment in a pub of about the theft of candy at a grocer. To make it worse, suppose that the client does not show up for the hearing, while it also appeals that the summons has not been served correctly. Indeed: in that case the attorney showed up for nothing.

Do I maybe exaggerate the logistic problem? Possibly. I can well imagine that Bonairean attorneys would transfer minor cases to colleagues in St. Maarten. At least they are able to go up and down to the islands within a day. On the other hand it does not make that much sense either for an attorney in St. Maarten to spend a whole day on a$500 case just to do a colleague in Bonaire a favor.
Cases would have to be “saved” to make it somewhat profitable for an attorney in St. Maarten,. The question remains up to what point the court and the prosecutor’s office are prepared to take this into account in their planning. After all, they have nothing to do with the livelihood of attorneys.

Another question is whether it is fair towards attorneys in Bonaire: they receive $170 for a consult via telephone and the arraignment at the Judge of Instruction, while the attorney in St. Maarten gets $500 for the trial. Lastly, working with different attorneys it is not comfortable for clients.
Moving the on-call duty from St. Maarten to Bonaire is therefore, also out of practical considerations, not the ideal solution.
Principally it is no option at all. For the communities of Saba and Statia it is precious that their suspects are tried on their own island. In fact, trying these suspects in Bonaire is contempt for the Saban and Statian communities, and a violation of the good distribution of justice.
And we have not even talked about the misery that is the result of the detention of Saban and Statian suspects in Bonaire. This is a highly undesirable situation that has to end as soon as possible.

Good news: a practical and principled solution
Let me not keep the good news to myself any longer: there is a solution possible that is practical and principled at the same time.
The attorney in St. Maarten remains in charge and the Bonaire-story has to end immediately. Historically and geographically Saba and Statia have much stronger ties with St. Maarten than with Bonaire. In practice we see that the prosecutor charged with the BES has her main office in St. Maarten, a judge from St. Maarten deals with the minor cases and the local attorneys are charged with executing the on-call duty.
If it is possible for a judge in St. Maarten to handle the minor cases from Saba and Statia, this is also possible for the more serious cases. This will not give logistic problems, because Saban and Statian suspects in more serious cases could be placed, just like before, in the House of Detention in St. Maarten.
The Minister of Justice in St. Maarten must realize a significant expansion of the capacity in the House of Detention. He could realize an x-amount of places for suspects from Saban and Statian suspects and the islands could pay St. Maarten for the construction or for the lease of cell-space. Currently Belgium is leasing cells in the Netherlands and there are Belgian detainees in Dutch prisons.
The advantages of my proposal are obvious. It does justice to the principle of the good distribution of justice, the logistical problems are limited significantly, and the unacceptable detention situation for Saban and Statian detainees comes to an end,.
If the video-conference system will be brought up to par for the first phase of a case when the suspect is brought before the Judge of Instruction in Saba or in Statia, attorneys in St. Maarten have little left to complain about.

The author is an attorney with Berman Law Offices and Legislative Services in St. Maarten.

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