Constitutional Court Of Sint Maarten
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The Constitutional Court of Sint Maarten ( nl, Constitutioneel hof van Sint Maarten) is a court of
Sint Maarten Sint Maarten () is a constituent country of the Kingdom of the Netherlands in the Caribbean. With a population of 41,486 as of January 2019 on an area of , it encompasses the southern 44% of the divided island of Saint Martin, while the north ...
. As a
constitutional court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
it evaluates the constitutionality of the provisions of legislation which is approved by the
Estates of Sint Maarten The Parliament of Sint Maarten ( nl, Staten van Sint Maarten) is a unicameral legislature that consists of 15 members, each elected for a four-year term in a general election. The first parliament was installed on 10 October 2010, the date of the ...
and signed into law, but which has not entered into force. Procedures by the court may be initiated only by the
ombudsman An ombudsman (, also ,), ombud, ombuds, ombudswoman, ombudsperson or public advocate is an official who is usually appointed by the government or by parliament (usually with a significant degree of independence) to investigate complaints and at ...
of Sint Maarten. As of July 2016, the court has decided two cases. Sint Maarten is the only country in the
Kingdom of the Netherlands , national_anthem = ) , image_map = Kingdom of the Netherlands (orthographic projection).svg , map_width = 250px , image_map2 = File:KonDerNed-10-10-10.png , map_caption2 = Map of the four constituent countries shown to scale , capital = ...
with a constitutional court.


Legal basis

The National ordinance Constitutional Court ( nl, Landsverordening Constitutioneel Hof) forms the legal basis for the constitutional court. It was approved by the Island Council of Sint Maarten before Sint Maarten obtained the status of country within the Kingdom as part of the
dissolution of the Netherlands Antilles The Netherlands Antilles was an autonomous Caribbean country within the Kingdom of the Netherlands. It was dissolved on 10 October 2010. After dissolution, the "BES islands" of the Dutch Caribbean—Bonaire, Sint Eustatius, and Saba—became th ...
and entered into force when Sint Maarten obtained that status on 10 October 2010.


Judges

The court consists of 3 judges (and 3 deputy judges) which are appointed for a 10-year term, which may be renewed once. Membership of the court also ends in the month after reaching the age of 70. The Council of State of the Kingdom of the Netherlands, the Common Court of Justice of Aruba, Curaçao, Sint Maarten, and of Bonaire, Saint Eustatius and Saba each nominate one of their judges as a member and deputy member of the court. The third member and deputy member is appointed after hearing the Constitutional Court. Members of the court are:


Cases

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.


Case 2013/1: Criminal Code

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 it first laid down certain points of departure regarding its evaluation consisting of 5 points: *The court needs to evaluate acts only on those points about which the Ombudsman raises concerns. *The court should exercise
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities; it is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis (that new decisions s ...
, 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
that they are based on, interpreted consistently with the case law of the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
(ECHR). The same goes for provisions that derive from the
Constitution of the Netherlands The Constitution for the Kingdom of the Netherlands ( nl, Grondwet voor het Koninkrijk der Nederlanden) is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the ...
. The Ombudsman had made seven complaints regarding the law, which were dealt with in #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. #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. #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. #Higher maximum penalties for theft from tourists. The court held the complaint unfounded as legitimate reasons existed for these penalties. #Life without parole. The code did not provide any provision for parole for people convicted for life ( nl, levenslange gevangenisstraf and the government explained that also no informal parole system existed. The court found such a penalty (without a "possibility for review" with a "prospect of release") inhuman in line with ECHR case law. #Different treatment of residents and non-residents, as the first could not qualify for
release on licence Release on licence in England and Wales can refer to * Release from prison on temporary licence, followed by return to prison. * Release from prison on parole Parole (also known as provisional release or supervised release) is a form of earl ...
. This complaint was held to be well-founded. #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.


Case 2015/1: Integrity Chambre Ordinance

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 Chambre 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. These requirements included: *Warranties for competence, independence and mandate of a supervisory organization of the integrity chambre *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 chambre to criminal investigators, and about the right not to incriminate oneself *The use of search warrants should be properly supervised


References

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External links


Constitutional Court section
on Ombudsman Sint Maarten website *Case 2013/
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*Case 2013/1 (Intermediate decision
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*Case 2015/
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2010 establishments in Sint Maarten Constitutional courts Government of Sint Maarten Courts in the Netherlands Designated Monuments in Sint Maarten Courts and tribunals established in 2010