PHILIPSBURG--The new Penal Code can be published soon and go into effect with the adoption of several amendments by Parliament on Tuesday afternoon. The amendments, which required at least a two-thirds majority to pass, were passed unanimously by Parliament.

The quota was required due to the technical change to the Constitution.

 

Amendments to the new Penal Code reflect the first-ever ruling of the Constitutional Court in November 2013. The Justice Ministry has been working with other government departments since then to formulate the changes.

 

Justice Minister Dennis Richardson tabled the amendments in Parliament's plenary session Tuesday. That meeting came as a result of a Central Committee meeting two weeks ago in which the amendments were discussed by Members of Parliament (MPs).

 

The technical amendment to the Constitution, changes to 180 national ordinances and the direct amendments to the new Penal Code were covered in the approval.

 

St. Maarten is the last country in the Dutch Caribbean to implement the modernised Penal Code. The Code originally was adopted by Parliament in May 2012 and was ratified by the Governor in December 2012. It was published in The National Gazette in January 2013 and several parts were submitted for testing to the Constitutional Court based on the Ombudsman's prerogative to review the law.

 

The Constitutional Court issued its decision in November 2013, which led to the revisions. The Court found four of the Ombudsman's seven complaints were well-founded. Two of the four led to this partial amendment of the Penal Code with changes to articles on life sentences and early release of foreign (non­Dutch) detainees who do not have legal residency in St. Maarten.

 

The Court decided that Article 1:13 of the new Penal Code dealing with imposing life sentences was not compatible with Article 3 of the Constitution which prohibits torture and cruel, inhuman and humiliating treatment or punishment. The Court referred to the decision of the European Court of Human Rights of July 9, 2013, (Vinter case) and quashed Article 1:13 and related provisions due to an unjustifiable lack of a review mechanism.

 

The European Court advised in its case that review takes place at the latest after 25 years.

 

The amendment to the Penal Code re­regulates the imposing of life sentences with the possibility for a review of such a sentence after 20 years. This review period was originally in the modernised Penal Code, but was removed during the legislation process. The new provision of Article 1:30 of the new Penal Code makes the review of a life sentence possible again after 25 years.

 

This is a different term than in Curaçao and Aruba where the review is after 20 years.

 

On the early release of detainees, Article 1:37 stipulated that detainees with no legal residency in the Dutch Kingdom who have served sentences of less than five years were eligible for early release when they had served one-third of their sentence. Detainees (foreign or domestic) with a sentence of more than five years with no place to live in St. Maarten were deemed ineligible for conditional release.

 

The Court found those provisions too arbitrary, thus in violation of the principle of equality and non-discrimination as stipulated in Article 16 of the Constitution. Due to the annulment of these provisions Article 1:37 of the code had to be technically amended (read renumbered).

 

The amendment to the Constitution is only "technical," Richardson told Parliament. It entails substituting "a few references" to the relevant articles in the new Penal Code with new articles to be inserted in the code.

Government has opted to make the technical amendment of the Constitution by a national ordinance. In this way all provisions necessary for a just implementation of the new Penal Code will be bundled in one legal instrument, according to the minister.

 

The Daily Herald

 

Related article:

- Amendments to Penal Code set for Parliament approval