SINT MAARTEN (PHILIPSBURG) – National Alliance (NA) Member of Parliament (MP) Christophe Emmanuel urges the Minister Cornelius de Weever to step down if he cannot assume his authority in his capacity as Minister of Justice, the NA parliamentary faction said in a press statement on Thursday. MP Emmanuel firmly believes that the Openbaar Ministerie (OM)/ Prosecutor’s office has been completely running the Ministry ever since Minister de Weever took office.
The Member of Parliament is seriously questioning the manner in which the OM office operates. “It can’t be that those at OM feel that they can do whatever they want, however they want with impunity. It is dangerous and unacceptable”, said MP Emmanuel. He further explained that this is the reason why he often compares this modus operandi to that of the ‘Gestapo’. “The Gestapo was the official secret political police of Nazi Germany. The alternative German title is ‘Geheime Staatspolizei’, which translates to ‘Secret State Police’ in English”, he explained.
The MP said that you can draw stork similarities from the Gestapo Criminal Organization to that of the OM in St. Maarten. The Gestapo operated without any civil restraints, had the authority of making ‘preventative arrests’ and its actions were not subject to judicial appeal, which is very much comparable to the Anti-Corruption Task Force (TBO) on St. Maarten. With that said, MP Emmanuel went on to question what legal basis the TBO has to operate and who does it answer to. He wants to know whether the TBO is held accountable by the Minister of Justice, the OM or the Dutch Minister of Justice.
MP Emmanuel stated that the Minister of Justice has given up his authority to the Prosecutor’s Office to do whatever they want to, specifically regarding the laws concerning the FATF. “What does the law on Crown Witnesses has to do with the approval of FATF? One has nothing to do with the other. However, it is a directive from the OM which gives them ultimate authority in my country, but I say NO to the Gestapo”, he said.
Lastly, MP Emmanuel seriously urges his fellow Members of Parliament to not give the OM such power because it is dangerous for the people of St. Maarten.
Below is a translated version of the Draft Code of Criminal Procedure of St. Maarten. This is provided by the NA parliamentary faction in order to give thorough insight about the law on Crown Witnesses.
Draft Code of Criminal Procedure of Sint Maarten
Fifth Section B
Commitments to witnesses
- Where the Prosecutor, with the prior written consent of the General Prosecutor, intends to make an appointment with a suspect who is prepared to give evidence in criminal proceedings against another suspect in exchange for a commitment from the Prosecutor, he shall inform the Commissioner responsible for the prosecution. The proposed appointment relates exclusively to the giving of testimony in the context of an investigation into offences as defined in Article 100, paragraph 1, that are committed in an organized context and, given their nature or their connection with other suspected offences committed by the accused, constitute a serious breach of the rule of law or to offences for which the legal description provides for a term of imprisonment of eight years or more. Under no circumstances can the Public Prosecutor promise full immunity.
- The suspect who consults with the public prosecutor about making an appointment in accordance with the first paragraph may be assisted by a lawyer. A lawyer will be awarded to the suspect who does not yet have legal aid.
- The intended appointment has been made in writing and contains as accurate a description as possible of it:
- the offences about which and, if possible, the accused against whom the accused, who is also a witness as referred to in the first paragraph, is prepared to make a statement;
- the offences for which the accused himself will be prosecuted and to which the promise relates;
- the conditions that are imposed on the accused, who is also a witness, and with which he is prepared to comply;
- the content of the public prosecutor's promise.
- The examining magistrate hears the accused, as well as a witness, about the intended agreement and then assesses the legitimacy of the agreement referred to in Article 261, paragraph 1. The Public Prosecutor shall provide the examining magistrate with the information he needs to assess it. In his assessment the examining magistrate takes into account the urgent need and the importance of obtaining the statement to be made by the accused, who is also a witness. He also gives an opinion on the reliability of the witness.
- The examining magistrate shall lay down his opinion in an order. If he judges the agreement to be lawful, it will be made. The decision of the examining magistrate shall be reasoned, dated and signed and shall immediately be notified in writing to the public prosecutor and to the accused, who shall also be a witness.
- The Public Prosecutor may appeal to the Court of Appeal against the decision of the examining magistrate in which the intended agreement is deemed not to be lawful within fourteen days after the date of the decision. The Court of Appeal will decide as soon as possible.
- The Public Prosecutor will not attach the official report and other objects from which data can be derived that have been obtained by making an appointment as referred to in Article 261f to the procedural documents until the examining magistrate has judged the appointment to be lawful.
- After the appointment has been lawfully judged, the defendant as a witness referred to in article 261f, first paragraph, shall be questioned by the judge.
- This witness cannot be questioned in application of articles 261 to 261e.
- As soon as the interest of the investigation so permits, the examining magistrate will notify the accused, at whose expense the statement was made, of the conclusion of the agreement and its contents, on the understanding that no notification of the measures, as referred to in article 261k, is required.
- In the interests of the investigation, the examining magistrate may, on his own behest, at the request of the Public Prosecutor or at the request of the witness, order that the identity of the witness be concealed from the accused for a specified period. The order shall be lifted by the examining magistrate before the completion of the investigation.
- Articles 261f to 261h shall apply mutatis mutandis where a convicted person is prepared to give a witness statement, in return for a commitment from the Public Prosecutor.
- The requirement of Article 261f, paragraph 3, section b, is not applicable when the intended appointment is made in writing.
By or pursuant to a National decree containing general measures, further rules may be laid down regarding the manner in which this section is to be implemented.
From the explanatory memorandum:
The scheme does not have an exhaustive system of commitments. Further details can be provided by national decree containing general measures. It is important that there is a direct link between the performance of one party and the consideration of the other party. It must also be a verifiable witness statement and the information to be obtained must be essential for the investigation and the evidence in the case.
A quid pro quo could be, for example:
– demanding a lower capital punishment, with the public prosecutor reporting this in his indictment;
- remission of part of the principal penalty imposed by means of pardon;
- the replacement of the custodial sentence by a community service sentence;
- Detention under a different regime.
Less obvious and also undesirable are, for example, the following promises:
- commitments regarding the content of the indictment;
- criminal immunity;
- commitments with regard to abandoning the active investigation or prosecution of criminal offences, contrary to the current investigation and prosecution policy;
- the granting of a financial reward;
- the total or partial omission of the execution of a judicial decision;
- favoring others than the witness, such as his life partner.
(Emphasis added for clarification)
The proposed scheme follows the Dutch (art. 226g/226k Sv) in a fairly strong degree. The main exceptions are in art. 261f paragraph 1 (vgl. NL Art. 226g paragraph 1).
In the Netherlands, the exclusion of a custodial sentence, duty penalty or fine, up to a maximum of half (art. 226g paragraph 1 Sv jo. 44a Sr) may be pledged. This means that no immunity should be afforded, nor a monetary reward (premium).
Nor should any commitment be made with regard to additional penalties, such as confiscation, or measures such as the TBS or the deprivation of a part of the benefits.
The system now proposed would abandon these restrictions. It is sufficient to state in the explanatory memorandum that certain undertakings are undesirable: immunity, financial reward (a premium) or the non-implementation of penalties imposed by the court. It could be deduced from the announcement that the Minister may lay down 'additional rules' by National decree, that the designers wished to place the legislative power with respect to the limitation in the hands of the Minister. In this way, the draft regulation is stripped of its essence in relation to the Dutch regulation: only procedural rules remain, and what really matters is: what promises may be made remains unregulated.
Yet it is not for nothing that the Dutch law does express itself on this subject. After all, promising criminals a reduction in their sentences affects justice: they are not given the punishment which they deserve, and what they have done remains wholly or partially unpunished. This is particularly evident in the deprivation of benefits: the criminal not only avoids (part of) his punishment, he is also allowed to keep the loot he has gained. This may be acceptable in order to prevent even bigger criminals from going unpunished for lack of evidence (small fish, big fish) - but in any case it seems necessary to set limits, and to mark them clearly. Such a far-reaching power should not be left to a Minister - who will probably be guided by the wishes of the police and the Public Prosecution Office. Moreover, practice has shown that the crown witnesses are generally not small fish at all.
There's another side to the case. The more attractive the reward promised, the more likely it is that false statements will be made in order to win that attractive prize. The court in particular must guard against this, but the Dutch legislator's idea that a legal restriction will also be beneficial in this case seems reasonable. The temptation must not become too great!
The fact that the proposed system is too broad is further illustrated by the finding that it even leaves room for the non-enforcement of judicial decisions; according to the explanatory memorandum, this is undesirable, but apparently not inadmissible. The Supreme Court, on the other hand, finds this so directly contrary to the principles of due process that it must lead to inadmissibility of the Public Prosecution Service in the prosecution - and with good reason, because this undermines the authority of the judge and leaves the decision as to which punishment must actually be served to the Public Prosecution Office. Then, for the same reason, the sentencing itself can be handed over to that body!
In short: a regulation such as the one proposed does not belong in a constitutional state! It is therefore highly questionable whether it is EHRM-resistant. But before we would find that out, the damage would have already been done.