Overview: Aruba's Judicial System.

1. Aruba Criminal system is mirrored after the Dutch criminal justice system

2. Traditionally distinguishes itself from other criminal justice systems including the U.S. on many aspects including the severity of sanctions imposed

3. Basic 2 categories of criminal offenses: (i) felonies equivalent

("misdrijf") and (ii) misdemeanor ("overtreding")

Attorneys

4. Appointed by the State or privately engaged

5. Admitted to the bar of the Netherlands Antilles and Aruba

Duties and powers of the Prosecutor

6. Limited & specific powers:

7. Denominated as chief of investigation by law. Rarely directly involved in the investigation, usually provides general instructions and police in charge of investigative activities.

8. 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 desicions.

9. Prosecuting attorney at trial

10. Execution of any sentence imposed

Police investigation

11. Under supervision of prosecutor

12. Suspect must be informed of his rights

13. Suspect has the right to an attorney and not to incriminate himself

14. Hours of investigation limited. No investigation b/w 22:00 and 08:00

15. Written record is made of all interrogations, not a complete transcript, which will go on file

Courts & judges

16. All judges appointed by the Queen. Not through elections or political appointments.

17. Appointed for life.

18. Judges must follow special, rigorous training of 6 years, to qualify for appointment.

19. Alternate judges can be appointed based on trial experience & specific expertise

20. Trial by 1 judge in Court of First Instance of Aruba

21. Appeals handled by 3 judges of the Common Courts of Appeals of the Netherlands Antilles and Aruba

22. Appeals at the Supreme Court in the Hague, Netherlands

23. Decision of the supreme court do no constitute legally binding precedent, there's no official stare decisis. Although lower courts tend to follow supreme court views.

24. Role of the examining judge: (i) during pre-trial to independently examine the legality of procedural aspects & well-being of suspects; (ii) upon instruction of the trialing judge to examine or cross-examine witnesses at request of defense; can't take the role of a trial judge.

25. Examining judge as a rule not the same individual as trialing judge, to ensure objectivity and impartialness

Pre-trial

26. 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 ..."

27. 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

28. During this phase the defense has remedies to file for suspension of detention and/or other injunctive measures

29. Place of detention. First 10 days usually a police station, after that to the correction facility

Trial

30. Suspects have right to trial within a reasonable period of time

31. Public hearing

32. No trial by jury, but by a professional judge

33. No plea-bargaining

34. No death penalty

35. No permission required by the prosecutor from the court to go to trial

36. Indictment presented, at the prerogative of the prosecutor, after investigations have taken place

37. Defense will have chance to cross-examine witnesses before an examining judge

38. Maximum sentences: (i) Life imprisonment; or (ii) limited time. Section

11 Criminal Code

39. Maximum sentence of limited time sentence is 20 years i.e. 15 plus 5

40. Life sentencing has been issued in the past by the Courts.

41. Death sentence abolished since late 1800's and since then no serious attempts to re-instate same.

Principles of legality (nulla poena)

42. no conduct can be characterized as criminal, unless defined by a specific statute

43. all legal statutes are subject no very strict interpretation

44. newly imposed (heavier sanctioning) can't be imposed on a suspect retroactively

45. only penalties imposed by statutes may be applied.

Requirements of criminal act in general

46. (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

47. (a) self defennce ("noodweer"); (b) official orders by an authorized person ("ambtelijk bevel"); (c) hardship/necessity ("noodtoestand")

Access to information in pre-trial stage

48. No obligation by the prosecutor a/o investigating officers to disclose details of investigation to third parties, incl. the media

49. Press conferences held by prosecution not customary

50. Prosecutor's office has limited authority to disclose details of the investigation to the suspects

Legal age & prosecution

51. Below 18 years is considered a minor

52. 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.

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