On June 1, 2015 the new Penal Code (AB 2013, no. 2) came into effect in country Sint Maarten. As of that date the outdated Penal Code of the Netherlands Antilles has been revoked and thus is no longer valid. Still, to a person who already was a suspect before June 1, 2015 the most favorable provision of the two laws will apply.
The new Penal Code is published (in Dutch) on the official website of the government of Sint Maarten: www.sintmaartengov.org (go to Official Publications>2013). It should be read in conjunction with the Implementation ordinance Penal Code (AB 2015, no. 9). This is due to the fact that this implementation ordinance did some repair work on the new Penal Code as a consequence of the decision of the Constitutional Court of November 8, 2013. In this first ever decision of the Constitutional Court some provisions of the new Penal Code were deemed unconstitutional and therefore needed to be revised.
A consolidated text of the new Penal Code (i.e. as amended by the Implementation ordinance Penal Code) will soon be published in the Laws Database of Sint Maarten , which also can be found at the Government’s website mentioned above.
The coming into effect of the new Penal Code was long overdue. The Penal Code of the Netherlands Antilles was archaic and dated. The existing penalties had to be revised and adjusted to the needs of current times. New and alternative penalty modalities had to be regulated and archaic crimes had to be scrubbed. National needs and international developments and obligations made it necessary to better regulate ‘new’ crimes ‑ e.g. (financing of) terrorism and money laundering ‑ with the requisite penalties and to pay more attention to juvenile delinquency and juvenile criminal law.
Listed below are the most important changes in relation to the old law and policies:
· Capital punishment has been formally abolished. The death sentence cannot be passed on the basis of the new Penal Code.
· For serious crimes life imprisonment can be imposed. Under the new Penal Code life imprisonment means in principle imprisonment for one’s entire life. Only after having served 25 years of his life sentence the convicted person will be eligible for a first judicial review of his sentence.
· Community service has been regulated as a separate and full criminal justice sentence. Community service can consist of doing unpaid work ‑ for the public or its institutions ‑ or attending mandatory therapy sessions (e.g. anger management and drug and alcohol control) or a combination of both.
· The system of fixed fines, used in the Penal Code of the Netherlands Antilles, also has been abolished. The new Penal Code introduces six categories of fines, ranging from a maximum of ANG 500,- (category 1) to ANG 1.000.000,- (category 6).
· Not only suspects of misdemeanors, but also suspects of felonies may be offered a ‘transaction’: a term or condition proposed by the Public Prosecutor which the suspect has to fulfill in order to have his case dismissed.
· On the basis of the new Penal Code a judge may convict an offender without imposing any penalty, taking into account the nature of the offense or the offender.
· The rules on conditional release are simplified. In order to be eligible for conditional release, all detainees have to serve in principle at least two‑thirds of their jail sentence, unless that time is reduced because of a shortage of detention capacity. There are no longer special provisions for recidivists (repetitive offenders) or detainees who have no legal residence within the Kingdom. The Constitutional Court found these provisions to arbitrarily and therefore in violation of the Constitution. These new rules on conditional release are also applicable to detainees who were already incarcerated before the new Penal Code came into effect.
· The juvenile criminal law has been completely revised and is regulated separately. Titel X of the new Penal Code contains some new sanctions for juvenile delinquency (age 12 till 18) and provisions on the implementation of these sanctions. An institutional placement order (PIJ-measure) can be administered by the court if for a crime a precautionary detention is warranted and if the measure is in the best interest of the future development of the youth involved. Juvenile detention, can be administered for a maximum of 24 months, or in serious cases even up to four years, to 16 or 17 years old youth. These youths may also be sentenced according to adult criminal law taking into account a) the nature and seriousness of their crime, b) their personality and c) the circumstances under which the crime was committed. The new Penal Code opens also the possibility of a ’police transaction’ (HALT-measure) for a juvenile to have his case dismissed.
· Organizing all forms of animal fights without a permit issued by the Minister of Justice is illegal and therefore a criminal offence. (The legal framework and procedures for issuing such a permit are not yet in place.)
· Exploitation of prostitution without a permit issued by the Minister of Justice is illegal and therefore a criminal offence. (The legal framework and procedures for issuing such a permit are not yet in place.)
· As a direct consequence of the implementation of anticorruption treaties in the new Penal Code the bribing or favoring of government officials is deemed as a crime.
· Squatting of a house or building is punishable as a crime.
· Secretly filming and photographing of visitors in (inter alia) restaurants, shops and hotels is prohibited. The public must be made aware of any CCTV (surveillance) in those buildings.
· The age limit to sell alcohol to minors has been raised from 16 to 18 in the new Penal Code.