OVERVIEW
Aruba criminal system is mirrored after the Dutch criminal justice system. It traditionally distinguishes itself from other criminal justice systems including the U.S. on many aspects including the severity of sanctions imposed.
Basic two categories of criminal offenses: (i) felonies equivalent (“misdrijf”) and (ii) misdemeanor (“overtreding”)
ATTORNEYS
Appointed by the State or privately engaged.
Admitted to the Bar of the Netherlands Antilles and Aruba.
DUTIES AND POWERS OF THE PROSECUTOR
Limited & specific powers:
Denominated as chief of investigation by law. Rarely directly involved in the investigation, usually provides general instructions and police in charge of investigative activities.
Prosecutorial decisions:
Monopoly on which cases go to court. If prosecutor chooses to dismiss a case, that decision can be appealed to the Appellate Court, in which case an order to prosecute could follow. Government/executive branch does not have the power to take prosecutorial decisions.
Prosecuting attorney at trial.
Execution of any sentence imposed.
Police investigation is under supervision of prosecutor. Suspect must be informed of his rights.
Suspect has the right to an attorney and not to incriminate himself. Hours of investigation limited. No investigation between 22:00 and 08:00 hours.
Written record is made of all interrogations, not a complete transcript, which will go on file.
COURTS AND JUDGES
All judges appointed by the Queen. Not through elections or political appointments. Appointed for life. Judges must follow special, rigorous training of six years to qualify for appointment. Alternate judges can be appointed based on trial experience and specific expertise.
Trial by one judge in Court of First Instance of Aruba. Appeals handled by three judges of the Common Courts of Appeals of the Netherlands Antilles and Aruba. Appeals at the Supreme Court in the Hague, Netherlands.
Decisions of the Supreme Court do no constitute legally binding precedent. There is no official stare decisis although lower courts tend to follow Supreme Court views.
Role of the examining judge: (i) during pre-trial to independently examine the legality of procedural aspects and well-being of suspects; (ii) upon instruction of the trialing judge to examine or cross-examine witnesses at request of defense; cannot take the role of a trial judge.
Examining judge as a rule not the same individual as trialing judge, to ensure objectivity and impartiality.
PRE-TRIAL
Pre-trial detention possible in cases of felonies in case that there are:
“... facts and/or circumstances that can justify a reasonable suspicion of involvement in a(ny) criminal act ...”
VARIOUS PHASES OF DETENTION
- Detention (“aanhouding”): detention for up to six (6) hours; followed by release or
- Arrest/detention (“inverzekeringstelling”): per order of the prosecutor plus 2 x 48 hours
- Examining-judge review of the procedural legality of the first 72 hours of detention
- Detention (“bewaring”): extension of 8 days (so far total 10 days)
- Detention (“gevangenhouding”): extensions and subsequent extensions, possibly leading up to the date of the trial
During this phase, the defense has remedies to file for suspension of detention and/or other injunctive measures.
Place of detention: first 10 days usually a police station; after that to the correction facility.
TRIAL
Suspects have right to trial within a reasonable period of time.
Public hearing
No trial by jury, but by a professional judge
No plea-bargaining
No death penalty
No permission required by the prosecutor from the court to go to trial
Indictment presented, at the prerogative of the prosecutor, after investigations have taken place
Defense will have chance to cross-examine witnesses before an examining judge.
Maximum sentences: (i) Life imprisonment; or (ii) limited time. Section 11 Criminal Code
Maximum sentence of limited time sentence is 20 years i.e. 15 plus 5.
Life sentencing has been issued in the past by the Courts.
Death sentence abolished since late 1800's and since then no serious attempts to re-instate same.
PRINCIPLES OF LEGALITY (NULLA POENA)
No conduct can be characterized as criminal, unless defined by a specific statute
All legal statutes are subject no very strict interpretation
Newly imposed (heavier sanctioning) cannot be imposed on a suspect retroactively.
Only penalties imposed by statutes may be applied.
Requirements of criminal act in general
(a) conduct by a person; (b) which falls under the definition of an offense; (c) is unlawful; and (4) for which the perpetrator must be held guilty
Justification grounds for criminal acts
(a) self defense (“noodweer”); (b) official orders by an authorized person (”ambtelijk bevel”); (c) hardship/necessity (“noodtoestand”)
Access to information in pre-trial stage
No obligation by the prosecutor a/o investigating officers to disclose details of investigation to third parties, including the media.
Press conferences held by prosecution not customary
Prosecutor's office has limited authority to disclose details of the investigation to the suspects.
Legal age and prosecution
Below 18 years is considered a minor
In principle no jail time, but if convicted of a felony, placed at disposal of the Government a/o equivalent to “juvenile hall” a/o in combination with half of an adult sentence. In case of life sentence, maximum of 10 years.
NOTE:
Although this article has been prepared carefully, it may only serve as a summary of the facts presented and its contents should not be relied upon blindly. The text is intended only as an overview of fundamental regulations of the subject and as such may contain inaccuracies and simplifications in its description of the applicable laws, regulations and case law. Application of rules and regulations in each case are on account of special circumstances and it is recommended that advice of counsel be sought in dealing with the application of the law.