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Sint Maarten: New Criminal Code

(June 18, 2015) Effective June 1, 2015, Sint Maarten has a new Criminal Code, replacing the Code of the Netherlands Antilles that had formerly been in force in the island nation. (New Penal Code for Sint Maarten per 1 June, DUTCH CARIBBEAN LEGAL PORTAL (June 1, 2015); Landsverordening van de 13e december 2012 houdende vaststelling van een nieuw Wetboek van Strafrecht [Ordinance of 13 December 2012 Establishing a New Criminal Code], AFKONDIGINGSBLAD VAN SINT MAARTEN (2013), AB 2013, No. 2.) Sint Maarten, which shares a Caribbean island with the French overseas collectivity Saint-Martin, became a self-governing country within the Kingdom of the Netherlands as of October 10, 2010, when the Netherlands Antilles was dissolved. (Sint Maarten: Country Profile, GRID (page last reviewed Aug. 6, 2014), Central America and Caribbean: Sint Maarten, WORLD FACTBOOK, (last updated June 11, 2015).)

The text of the Code had been adopted in December 2012, but it was necessary for a Constitutional Court of Sint Maarten review of certain Code provisions to take place, at the request of the fledgling country’s Ombudsman, and for an implementation ordinance amending the Constitution, the Code, and other ordinances to be adopted before the new law could enter into effect. (Life Sentences and Conditional Release Found Unconstitutional, DUTCH CARIBBEAN LEGAL PORTAL (Nov. 9, 2013).)

Most significantly, the Court had found, in its first-ever decision, issued on November 8, 2013, that the Code’s provisions on life imprisonment and conditional release, among certain other provisions, were unconstitutional. The now effective Code must be read in conjunction with the implementation ordinance, issued on April 21, 2015, which incorporated changes mandated by the Court. (Id.; Ordinance of 21 April 2015 Amending the Constitution and Other National Ordinances Because of the Introduction of the Criminal Code and Amending the Code Following the Ruling of the Constitutional Court (Penal Code Implementation Ordinance), AFKONDIGINGSBLAD VAN SINT MAARTEN [OFFICIAL GAZETTE OF SINT MAARTEN] 2015, AB 2015, no. 9 (in Dutch).)

Some highlights of the new law are:

• abolition of the death penalty;

• life imprisonment imposable for serious crimes, but with eligibility for a first judicial review of the sentence after 25 years. As a result, the sentence of life imprisonment without the possibility of parole has been abolished;

• inclusion of hacking, “gaining unauthorized entry to the information of third parties on automated systems or parts thereof,” among crimes committed with a computer;

• dramatic increase in penalties for pornography and for child pornography in particular;

• for a number of types of abuse, including by relatives, empowerment of a judge to rule that the convicted person must not come within a certain distance of the accuser;

• possibility of imposition of heavy sentences, as both a corrective and a preventative measure, for offenses against personal freedom, specifically human trafficking;

• possibility of applying sentencing such as juvenile detention, community service, or a fine to young people who commit a misdemeanor and community service or a fine to the young who commit a more serious offense;

• inclusion of community service as a separate type of sentence, to consist, for example, of performance of unpaid work for the public or its institutions, attendance at mandatory therapy sessions (e.g., for drug abuse or anger management), or a combination of both; and

• abolition of the system of fixed fines that had been used in the Criminal Code of the Netherlands Antilles and introduction of six categories of fines, ranging from a maximum of ANG500 (category 1) to ANG1,000,000 (category 6). (New Penal Code for Sint Maarten per 1 June, supra; New Penal Code in Affect [sic] for St. Maarten, 721 NEWS (June 2, 2015).)

In addition, the new Code includes a specific regime applicable to offenders who have reached 16 years of age but not 18 when convicted of a crime. The maximum penalty for these offenders is generally two years in a youth detention facility, but if the sentence that could be imposed for an adult is up to 24 years or life, a young person can be given a sentence of up to four years. (New Penal Code in Affect [sic] for St. Maarten, supra.) A judge has the option of not implementing specific punishments when sentencing a young offender, of placing the person in an institution as part of the sanction, and/or of taking into account the circumstances of the crime when there may be grounds to do so. In addition, youth under the age of 16 are eligible for a sentence of a minimum of one day and a maximum of 12 months. (Id.)

Reportedly, a consolidated text of the new Code, incorporating the amendments set forth in the implementation ordinance, will be published in the near future in the Laws Database of Sint Maarten. (New Penal Code for Sint Maarten per 1 June, supra.)