Constitutional Court of Sint Maarten

As of January 2018, 2 cases have been brought before the court by Ombudsman Rachnilda (Nilda) J.A. Arduin, who has been ombudsman of the country since its inception.^[9]

A complete recast of the Criminal Code was approved in 2012 and the ombudsman requested evaluation of the Act in January 2013. As this was the first case of the court, in its decision ECLI:NL:OCHM:2013:3 it first laid down certain points of departure regarding its evaluation consisting of 5 points:^[10]

• The court needs to evaluate acts only on those points about which the Ombudsman raises concerns.
• The court should exercise judicial restraint, especially when multiple interpretations are concerned.
• A presumption of constitutionality exists: when the act can be interpreted in a way that is constitutional, then it will follow that interpretation.
• The court should follow a "practical" and "effective" approach.
• The provisions of the constitution should be interpreted in the light of relevant provisions of the European Convention on Human Rights that they are based on, interpreted consistently with the case law of the European Court of Human Rights (ECHR). The same goes for provisions that derive from the Constitution of the Netherlands.

The Ombudsman had made seven complaints regarding the law,^[11] which were dealt with in ECLI:NL:OCHM:2013:2

1. The promulgation date was not recorded, which made it hard to identify the start of the 6-week period that the Ombudsman has to file complaints with the court. This complaint was considered well-founded.
2. The provisions of the code were renumbered following several amendments during the legislative process without a proper mandate to do so. This complaint was held to be well-founded.
3. Animal fights. The code allowed animal fights as part of a cultural expression. The court held that such a provision was not a priori unconstitutional.
4. Higher maximum penalties for theft from tourists. The court held the complaint unfounded as legitimate reasons existed for these penalties.
5. Life without parole. The code did not provide any provision for parole for people convicted for life (Dutch: levenslange gevangenisstraf and the government explained that also no informal parole system existed.^[12] The court found such a penalty (without a "possibility for review" with a "prospect of release") inhuman in line with ECHR case law.
6. Different treatment of residents and non-residents, as the first could not qualify for release on licence. This complaint was held to be well-founded.
7. Legalization of prostitution. The court held that this was not a priori unconstitutional.

Thus the Court held complaints 1, 2, 5, and 6 to be well founded. It decided not to annul the ordinance as a whole but to annul only the provisions related to life without parole and release on licence.^[10]

The National Ordinance for the establishment of the Integrity Chamber was approved by the Parliament of Sint Maarten, after considerable pressure from the Netherlands. The Chamber was to investigate and act upon possible violations of public integrity.

The ombudsman complained that a very substantial change had not been submitted to the Council of Advice for additional advice. The court held that the change was indeed sufficiently large to require such advice. Based on fundamental problems regarding the constitutionality of the act, in part because of the changes introduced, they Court annulled the act as a whole and laid down the requirements that a possible new act would have to fulfill.^[13] These requirements included:^[14]

• Warranties for competence, independence and mandate of a supervisory organization of the integrity chamber
• Warranties for the right to be heard of people also subject to criminal investigation
• Hearing persons under oath or the possibility of a penalty payment in case of non-compliance with a request should not be possible if parallel criminal proceedings are ongoing
• Clarity should be given about the transfer of findings from the integrity chamber to criminal investigators, and about the right not to incriminate oneself
• The use of search warrants should be properly supervised

• Constitutional Court section on Ombudsman Sint Maarten website
• Case 2013/1 html and pdf
• Case 2013/1 (Intermediate decision) html and pdf
• Case 2015/1 html and pdf