Constitutional Court delays ruling in Ombudsman’s case

PHILIPSBURG--The Constitutional Court of St. Maarten has delayed its decision in the case of the Ombudsman against the government of St. Maarten until Friday, November 8.
The date for the ruling was initially set for Friday, October 18. A short statement, issued Wednesday by Constitutional Court Recorder Maritsa James-Christina, did not provide an explanation for the delay.
This is the second delay of the Court's judgment. The public hearing in the case, concerning six articles that the Ombudsman believes are in conflict with the Constitution, took place on July 2.
At the closing of the hearing, the Court informed parties that it would deliver its judgment on September 30. However, in view of a ruling of the Grand Chamber of the European Court of Human Rights (ECHR) of July 9, which dealt with a similar issue to the one brought before the Constitutional Court, it was decided to reopen the case where life sentences are concerned.
The new Criminal Code initially contained a Section 28, which provided that a prisoner sentenced to life could be conditionally released by the Court of Appeals after having served at least 20 years of the sentence, and if, in the Court's view, continued imprisonment would no longer serve a reasonable purpose. If the Court did not grant a conditional release, a further review should take place periodically every five years.
However, Parliament removed this section from the draft criminal code. The Ombudsman is of the opinion that the removal of this section from the original law constitutes an infringement on Section 3 of the Constitution, which prohibits "cruel, inhuman or degrading treatment or punishment."
With regard to the issue whether periodical judicial review of a life sentence would be required at some point in time after the imposition of that sentence, the Constitutional Court noted that one week after the public hearing here, ECHR had ruled in a similar issue. ECHR stated that "for a life sentence to remain compatible with Article 3 [of the European Convention on Human Rights – Ed.], there must be both a prospect of release and a possibility of review."
Given "the well-nigh similarity" of Section 3 of the Constitution and Article 3 of the European Convention, this recent judgment could be relevant for an assessment of the compatibility of Section 1:13 of the new Criminal Code with the Constitution.
Under these circumstances, the Constitutional Court considered it necessary to allow government and the Ombudsman to address the possible implications of this judgement.
To this end, the Constitutional Court requested both parties to answer several questions and file written submissions no later than September 6, after which they had the opportunity to file their written replies no later than September 27.
The possibility of imposing a life sentence in the new Criminal Code, and the withdrawal by Parliament of conditional release of prisoners after having served at least 20 years of their life sentence, were among six articles in the new Penal Code submitted by the Ombudsman to be declared null and void because these articles were considered to be in violation with the Constitution.
The Ombudsman is also seeking annulment of amendments to the penal code that would make cockfighting legal and annulment of an article that imposes higher sentences for crimes committed against tourists.
In addition, the Ombudsman is of the opinion that the early release of foreign detainees who have been sentenced for a term of less than five years and the exclusion from conditional release of foreign detainees who have been convicted for a term of over five years are not compatible with the Constitution.
The Ombudsman also requested that the Court annul the implementation of a permit system for the exploitation of prostitution.
(The Daily Herald)

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