~Judges rescind ministerial decision~
PHILIPSBURG--The Joint Court of Justice ordered the immediate release of two men Wednesday. They had been sentenced on appeal to five years and six months on March 24, 2011, for drugs smuggling.
Both men are foreigners and had appealed for early release. They also filed for appeal against their convictions at the High Court in The Hague, which is still to decide on their cases.
Minister of Justice Roland Duncan turned down the requests for early release, based on a policy that conditional release will not be granted to foreigners who are sitting out prison sentences of five years or longer.
The three judges of the Court of Appeals, however, came to the conclusion that the minister's policy is against the law.
Minister Duncan had introduced the new policy on 10-10-10 to combat illegal residence in St. Maarten and to curb the nuisance caused by criminal foreigners. The minister did not want to give the impression that St. Maarten is a country in which foreigners can commit serious crimes and jeopardise safety without carrying the consequences of sitting out the full length of their sentences. "St. Maarten cannot give the signal that crime pays," according to the Minister of Justice.
The Criminal Code provides in the early release of prisoners, upon the Minister of Justice's discretion. In deciding on such requests, the minister should adhere to principles of good governance.
In connection with his policy, the minister had referred to the National Ordinance Admission and Expulsion LTU and the ministerial order on electronic supervision.
The Appeals Court stated in its ruling it could not follow the minister in this standpoint, because the LTU is referring to the minister's authority on the issuance of temporary residence permits, and the expulsion and detention of illegal immigrants. The LTU does not apply to the early release of foreigners, the Joint Court stated.
The minister's authority to apply electronic supervision is also a separate and independent authority, next to his authority to decide on conditional release, the judges said.
During the April 11 closed-door hearing in this case, the minister's legal representative, attorney A.G. Baly, had submitted the Court with an undated and unsigned "internal" Ministry of Justice document, which contained criteria to assess requests for conditional release. In this document it was stated that no conditional release would be granted to foreigners who are convicted of prison sentences of five years or more.
According to information provided on behalf of the Minister of Justice this document was only distributed among the authorities concerned, among which were prison management, probation officers and the Prosecutor's Office. According to the Appeals Court it could not be ascertained whether the contents of the documents were also known among detainees and the population at large.
According to Minister Duncan the policy had been introduced on 10-10-10, and Joel J. Mark (42) of Grenada and Gerald R. Collet (44) of France had been the first to apply for early release under this scheme. This led the Appeals Court to the conclusion that it does not concern a lasting and established policy.
In the decisions to turn down the requests of early release, which were issued on January 30, and which were rescinded by the Appeals Court on February 16, it was stated the requests were denied because it would be impossible to keep requestors under supervision because they were illegal residents and would be expelled from St. Maarten.
In their decision, the Appeals Court judges also took into consideration that the prison and probation officer had given positive advice to the minister concerning the early release, and had indicated that both men's behaviour in jail had been exemplary.
The judges hereby also pointed to the fact that prison staff and probation officers had apparently not been aware of the minister's policy on early release. Therefore, the prisoners were confident their requests would not be categorically denied because they were foreigners, the Appeals Court stated.
Russell Brand Mervyn King Oscars Niclas Alexandersson Mark Bright Robert Schumann
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