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")
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
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
26. Pre-trial detention possible in cases of felonies in case that there
"... 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
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
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.