http://wwwserver.law.wits.ac.za/humanrts/cat/netherlands1998.htmlUniversity of Minnesota Human Rights
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Committee Against Torture, Consideration of reports submitted by States Parties under article 19 of the Convention, Netherlands - Antilles and Aruba - (1998).
Part Two
Aruba
I. PENAL AND PENITENTIARY SYSTEM
A. General
63. While Aruba's young and advanced constitutional system contains the main legal safeguards required by the human rights conventions, other legislation gives shape to the criminal law, the law of criminal procedure and the law governing the execution of custodial sentences. Aruban criminal and detention law thus meet the requirements of the human rights conventions. However, as this legislation is rather dated in a number of respects, it has not always fulfilled the requirements imposed by Aruba itself in its Constitution. In recent years, concentrated efforts have therefore been made to rapidly modernize this legislation where necessary, particularly in the area of criminal procedure and detention law. This has resulted in modern legislation based on the human rights conventions and also in legislative projects that are on the point of completion.
B. The Constitution of Aruba
64. When Aruba obtained its separate constitutional status in 1986, it seized the opportunity to introduce a constitution of its own - the Constitution of Aruba, based on the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the European Social Charter, the Constitution of the Kingdom of the Netherlands and the Constitution of the Netherlands Antilles. Aruba's Constitution lays down the fundamental rights of persons subject to the law of Aruba. The guiding principle in this respect is the notion that citizens should be afforded protection against and support by the authorities. What is of essential importance to the Convention is above all the right of inviolability of the person laid down in article I.3 of the Constitution. As a result, acts which in any way constitute an infringement of the physical integrity of a person are prohibited in the Constitution. Exceptions to this right are permitted only if and insofar as they are provided for by law. This is implemented, for example, by Aruba's new Code of Criminal Procedure (AB 1996 No. 75).
65. A number of the European Convention's provisions also appear almost literally in the Constitution. Examples are the principle of equality, the principle of legality, the presumption of innocence and the ban on imposing the death penalty. Article I.5 of the Constitution also contains detailed provisions governing the lawfulness of arrest, detention and imprisonment. This article, which is closely modelled on article 5 of the European Convention and the case law resulting from it, covers all cases of deprivation of liberty (art. I.7). Finally, the Constitution includes a provision on legal assistance (art. I.7) and provisions governing due process and the independence of the judiciary (chap. VI).
C. Criminal law
66. The principle of legality applies under both the criminal law and the law of criminal procedure. Under article 1, paragraph 1, of the Criminal Code of Aruba (AB 1991, No. GT 50), no offence is punishable unless it was an offence under a provision of the criminal law existing at the time it was committed (see also article I.6 of the Constitution). Under article 9 of the new Code of Criminal Procedure of Aruba which took effect on 1 October 1997, prosecutions are brought only in the cases and in the manner provided for by country ordinance (i.e. a formal statute of the Aruban legislature). This means that the substantive and procedural criminal law of Aruba always accords primacy to the principle of legal certainty. An individual may not be punished for acts that are not defined as criminal by law; every act taken by the authorities under criminal procedure should also be justified to the individual. In this way all forms of arbitrary action against the individual are in principle made impossible.
67. The Criminal Code of Aruba was inadequate in two ways in terms of the legal rights protected by the European Convention. As mentioned in the previous report, there were first of all several outdated regulations governing the execution of custodial sentences that were no longer applied in practice. For example, article 14 of the Code provides that the courts can order that a person sentenced to a term of imprisonment of more than five years should be shackled when working. Outdated regulations of this kind, which are no longer in keeping with modern views on the treatment of prisoners and the nature of custodial sentences, will be repealed when the new law on imprisonment is introduced. The new bill governing the execution of custodial sentences is presently being considered by the Advisory Council and will in due course be submitted to the Aruban parliament. If this becomes law, the Criminal Code of Aruba will cease to contain any provisions governing the execution of custodial sentences. The existence of such provisions is no longer in keeping with the idea that imprisonment should be geared to the rehabilitation of convicted prisoners (see also sect. E).
68. Second, the Aruban Criminal Code provides only indirectly that torture and other forms of inhuman or degrading treatment are punishable offences (this too was mentioned in the previous report). Although there are extensive provisions for punishing assault (arts. 313-318) and extra sentences are available for imposition on public officials convicted of assault (art. 46), torture as such is not a criminal offence under the Code. This is why the implementing legislation referred to in the previous report has now been redrafted. As a result, a bill to implement the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is now being publicly debated in the Aruban parliament. This legislation will shortly introduce the specific offence of "assault committed by a person in the course of his duties in the service of a government body against another person either with a view to obtaining information or a confession from the latter or to punishing him, intimidating him or another person or compelling him or another person to do or allow something, or out of contempt for that person's claims to human dignity". This offence carries a term of imprisonment not exceeding 15 years, or 20 years (life) if the offence results in death (see also the notes on articles 2-4 of the Convention against Torture). It is expected that the bill will become law on or around the date when this report is considered.
D. Criminal procedure
69. The constraints that can be used against a defendant in the course of criminal proceedings and how this can be done are exhaustively regulated in Aruba's Code of Criminal Procedure, to which reference has already been made. The entry into effect of this new Code was a milestone in the history of Aruba's criminal law system. The rights of suspects have been greatly improved in the new Code. Very importantly, provision is now made in many places in the law for the assignment of defence counsel. If necessary, the assistance of counsel may be free under a legal aid order. Whenever a suspect is deprived of his liberty, he is entitled to the immediate assistance of defence counsel. Indeed, counsel may be consulted even before the first interview by the police. This means that from the moment of the initial contact with the criminal justice authorities a suspect can be assisted by a lawyer, who can monitor the lawfulness of the treatment accorded to the suspect in the course of the criminal proceedings and can apply to the court in the event of any irregularities. This provides a strong safeguard against arbitrary and unlawful action by the authorities.
70. The new Code also provides other fundamental safeguards against unlawful action by the authorities. First of all, the application of constraints against a suspect is made the subject of precise rules. Before a constraint is employed, it will have to be clear in each case whether certain minimum conditions for the application of the measure have been fulfilled. If the police or public prosecutions service fail to fulfil these conditions, they will be sanctioned by the courts for applying the relevant constraint. In addition, article 71 of the Code provides that constraints used against a suspect (i.e. the pre-trial constraints under criminal law, including physical constraints) must not be unreasonable in the light of the different interests involved in the case and may also be used only for the purpose for which they are ultimately intended. Furthermore, it must not be possible to achieve the object of the constraint in some other less radical way. Lastly, there must be reasonable grounds for believing that the seriousness of the infringement caused by the constraint is justified by the seriousness of the offence. These general principles of due process, which were originally derived from unwritten law, are intended to help ensure that application of a custodial measure cannot degenerate into an independent punitive process.
71. Finally, articles 178 to 181 of the Code create an explicit procedure for individuals to claim compensation for the unlawful application of pre-trial constraints. If constraints are judged to be out of proportion to their lawful object they are held in law to have been an unlawful act by the authorities.
72. In summary, Aruba's system of criminal procedure is based on the principle that the legitimacy of each government act should be demonstrated to the individual concerned. If constraints are used, their application must be in accordance with various rules that can help to minimize abuse of power.
E. Detention
73. Detention is possible in Aruba only in circumstances where it has been regulated by law. Detention infringes the fundamental rights of personal liberty and safety guaranteed in the Constitution and the right to move around, reside and choose a place of residence freely in Aruba. It also follows from the Constitution that where a person is deprived of his liberty the procedural rules given by or with the authorization of parliament should be observed. The power to deprive a person of his liberty must therefore be laid down by law. Deprivation of liberty may occur only in the cases listed exhaustively in article I.5 of the Constitution. These are successively:
Lawful detention after conviction by a competent court;
Lawful arrest or detention for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
Lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence, fleeing after having done so or prejudicing a criminal investigation;
Lawful detention of a minor for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
Lawful detention of persons to prevent the spreading of infectious diseases and of persons of unsound mind, alcoholics and drug addicts;
Lawful detention of persons to prevent them entering the country illegally and of persons against whom an action is being taken with a view to deportation or extradition.
74. Once a person has been detained, the detention should be served in accordance with the principles of the rule of law. The current regulations do not provide an adequate framework for this as they date from a time when the need for offenders to be rehabilitated and for prisoners to have legal rights enforceable against the authorities had not yet been recognized. At present the regulations comprise the Prisons Act (PB 1930, No. 73) (based on article 26 of the Criminal Code of Aruba), the Prisons Order (PB 1958, No. 18) and the Prison Staff Instructions (PB 1958 No. 19). Together with Titles II and III of Book 1 of the Criminal Code of Aruba, these regulations constitute the law governing the implementation of remands in custody, custodial sentences and other forms of detention. Like Aruba's Criminal Code, the Prisons Order and the Prison Staff Instructions contain no explicit ban on torture and merely contain an instruction "to treat prisoners considerately, without fraternizing with them" (article 13 of the Prison Staff Instructions).
75. In view of the desire to modernize detention law in its entirety and strengthen the position of prisoners, a bill to regulate the execution of custodial sentences was drafted. This bill was announced during the fourteenth session of the Committee against Torture in 1995. However, the bill in its original form has been subjected to a thorough review on the recommendation of the Advisory Council of Aruba, which has led to some delay. The bill has now reached the stage where it can be presented to Aruba's parliament in the near future. The bill does not contain an explicit ban on torture. Nor would such a ban be logical since the whole purpose of the bill from the point of view of the rule of law is to emphasize the rights of prisoners and to prohibit outright any action that would limit or undermine these rights (including fundamental rights) still further. In view of this express recognition of prisoners as independent persons having rights and duties under the law, it follows that it is unnecessary to formulate a ban on torture within the prison system. Here too, however, torture is of course a criminal offence under the general provision on torture in the bill to implement the Convention against Torture.
76. All the permitted infringements of the fundamental rights of prisoners have been explicitly defined and the conditions on which the infringements are possible have been listed exhaustively. If these rights are nonetheless infringed unlawfully, for example as a result of the way in which the detention is implemented, prisoners have a lawful right to complain about this to an independent board of visitors which is responsible for checking that custodial sentences are executed lawfully. A prisoner may be assisted by counsel in a complaint procedure. The rulings of the board of visitors on a prisoner's complaint are binding on the authorities responsible for implementing the detention.
77. The bill defines precisely what infringements of the physical integrity of prisoners are permitted and on what conditions. Any search of prisoners to discover whether they have prohibited objects in their possession may not go beyond an external search of their body and clothing. Prisoners may be required to undergo medical treatment only if they have - or are thought to have - a sickness that poses a serious threat to their health or the health of other prisoners. Finally, physical coercion - including the use of force - is permissible only if and insofar as this is absolutely necessary in order to maintain order or security in the prison, carry out decisions of the authorities in relation to the sentence or prevent the prisoner from escaping. It is explicitly provided in this connection that physical coercion may never be used if the consequences (for the prisoner) would be out of proportion to the object served by the coercion. It is also provided that when coercion has to be used the authorities should choose the form that will achieve the desired effect with the minimum of harm. In addition, a doctor should always be called in to examine a prisoner within 24 hours when force is used. Prisoners may complain about the use of force to the board of visitors mentioned above.
II. INFORMATION RELATING TO ARTICLES OF THE CONVENTION
Article 2
Paragraph 1
78. The measures to prevent the possibility of torture in Aruba take two forms. First of all, the possibility of torture is precluded by law in Aruba. The right of every individual to inviolability of the person is enshrined in article I.3 of the Constitution of Aruba (AB 1987 No. GT 1). Under this article, the fundamental right of inviolability of the person may be limited only by or pursuant to country ordinance, in other words by Aruban legislation. The provision has therefore been elaborated in various items of legislation. The most important of them are the Criminal Code of Aruba (AB 1991, No. GT 50) and the bill to implement the Convention against Torture, which is expected to be passed by the Aruban parliament and become law in the near future. Under this bill, torture will be an offence not in the Criminal Code but in a special ordinance. The definition of the offence of torture has been closely modelled on article 1 (1) of the Convention, and the offence carries very heavy custodial sentences (varying from 15 years' imprisonment to life). For a detailed description of the content of the Code and the bill, reference should be made to the notes on article 4 of the Convention below.
79. Second, the possibility of torture is avoided by a system of preventive supervision and regular checks on the treatment of prisoners. The supervision and checks are presently arranged in three ways. First of all, the Aruban Correctional Institute has a board of visitors. This board has been instituted on the basis of the Board of Visitors (Prisons and Remand Centres) Order (AB 1995 No. GT 25) and is charged - in essence - with supervising the way in which custodial sentences and non-punitive orders are executed. Under article 4, opening words and (a), of the Order referred to above, the board is responsible in particular for "supervision of all matters relating to the institution, especially the treatment of prisoners and the observance of the regulations". For this purpose, the members of the board are entitled to gain access at all times to all parts of an institution and to all places where prisoners are kept (art. 5 (1)). Under article 6 of the Order the board is empowered to ascertain the wishes and feelings of the prisoners by personal contact with them and the prisoners can communicate with the board free of censorship. In this way, irregularities in the treatment of prisoners can be made public. The board is required to report before 1 March of each year to the minister responsible for the prison system on its work in the past year.
80. The board of visitors will also acquire a judicial role when the bill governing the execution of custodial sentences becomes law. Under this bill the rights and duties of prisoners are defined in detail. Prisoners will be entitled to complain to the board of visitors about limitations on the rights to which they are entitled and about violations of their rights. The board acts in this respect as a complaints court that is independent of the criminal justice authorities and gives judgements binding on the prison administration. The chairman of the board of visitors is a member of the Aruban judiciary.
81. The second guarantee of the supervision and checks to ensure the proper treatment of prisoners is provided by the new Aruban Code of Criminal Procedure. This Code first of all implements article I.5, paragraph 3 (a), of the Constitution, under which a prisoner may apply to the courts for a quick decision on the lawfulness or otherwise of his detention. Under the Code a suspect has the right to be brought before a judge within three days of his arrest (art. 89, para. 1). This right applies while the suspect is still in police custody. Even afterwards, however, the lawfulness of the detention is checked at regular intervals (during remand in custody). Although the purpose of the courts' involvement is primarily to ensure that the conditions for the application of detention have been fulfilled, the Code does not prevent the subject of practices contrary to the Convention being raised during the hearing. There is therefore judicial supervision of detention both in police cells and in a remand centre.
82. A provision that is of exceptional importance in relation to the treatment of prisoners, particularly those in police custody, is article 90 of the Aruban Code of Criminal Procedure. This article defines the measures, including coercion, that can be taken against a prisoner during pre-trial detention. The constraints that can be employed against a prisoner under this article and that involve an infringement of the fundamental right of inviolability of the person may be ordered only by the public prosecutor, who must first obtain the authorization of the examining magistrate (a member of the judiciary). A special form of redress for such an infringement exists under the above-mentioned article 90, paragraph 7, in the form of an action to the Joint Court of Justice of the Netherlands Antilles and Aruba.
83. Lastly, the Code of Criminal Procedure gives prisoners the right to be assisted by counsel. Counsel may be involved at a very early stage - even before the start of the first police interviews - and is always assigned free of charge during police custody. This means that the way in which prisoners are treated is always monitored at first hand by a lawyer representing the prisoner, who can intervene immediately if his client is treated in a manner contrary to the Convention.
84. The statutory system also provides various ways in which prisoners can, in appropriate cases, obtain compensation through the courts for unlawful treatment or seek an injunction to restrain any future acts constituting unlawful treatment. These claims can be based on the Aruban Code of Criminal Procedure or instituted as a purely civil action. In addition, where there has been an unlawful and serious infringement of the fundamental rights of a person in pre-trial detention, the case law shows that the courts may in practice rule that the demand by the public prosecutor for a custodial sentence or constraint is not admissible and immediately release the prisoner.
Paragraph 2
85. Aruba's legal system contains a number of special items of legislation that cover emergencies of the kind referred to in article 2, paragraph 2, of the Convention. However, the basic requirement that action by the authorities should be lawful and in accordance with the rule of law continues to apply in full in this legislation.
Paragraph 3
86. Paragraph 3 of article 2 of the Convention stipulates that an order from a superior officer or public authority may not be invoked as a justification of torture. Articles 44 and 45 of Aruba's Code of Criminal Procedure contain specific provisions governing observance of statutory regulations and orders given by a superior. Under these articles a person who commits a criminal offence in the course of implementing a statutory regulation or obeying orders given by a competent authority is not punishable. However, a public servant invoking this defence must show that the relevant order was given by the competent authority or that he obeyed the order believing in good faith that it had been given by the competent authority.
87. In order to rule out any possibility that an order by a superior may be invoked as a defence to a charge of torture, the bill to implement the Convention against Torture explicitly provides that such a defence is excluded (article 3 of the bill). This means that there can be no discussion whatever about the question of whether a public servant may avoid conviction for torture by invoking the defence of an order given by his superior. Article 3 of the bill also explicitly excludes the possibility that a public servant can raise the defence that he was implementing a statutory regulation.
Article 3
88. Aruba's immigration policy involves the restrictive application of the scope provided by the Admission and Expulsion Ordinance (AB 1993 No. GT 33). A major consideration is the small size of the country: it would not be feasible to allow people to enter Aruba without restriction in order to settle and work there. This would make excessive demands on the available infrastructure and lead to undesirable situations. In view of this limited capacity to absorb foreigners, aliens can be admitted only if this would be in the real interests of Aruba or if there are pressing reasons of a humanitarian nature.
89. In order to stay in Aruba, an alien must have a valid residence permit. Anyone found in Aruba without a valid residence permit may be removed by the Minister of Justice under article 19 of the Admission and Expulsion Ordinance or by the Procurator-General under article 15. Appeal lies against a decision of the Minister of Justice pursuant to the Administrative Decisions Appeals Ordinance (AB 1993 No. 45).
90. In accordance with article 2 of the Charter of the Kingdom of the Netherlands and the Admission and Expulsion Ordinance, requests for asylum in Aruba that are made in Aruba are dealt with by the Aruban authorities. Requests for asylum in the Netherlands that are made in Aruba are dealt with by the Netherlands mission. The 1967 Protocol relating to the Status of Refugees took effect in Aruba on 1 January 1986. The term "refugee" is limited in both the 1951 Geneva Convention and the Protocol to persons who have a well-founded fear of persecution. The right of the State to decide who should be treated as a refugee is preserved. If someone is treated as a refugee the parties to the Protocol may not expel or return such a person. Since Aruba has no statutory procedure for dealing with asylum requests, each request has to be dealt with on an ad hoc basis. This is because there have hitherto been scarcely any requests for political asylum. Although there are therefore no official procedures, the authorities concerned work together as closely as possible in order to determine whether there is a well-founded fear of persecution (this fear must be supported by facts) and, if there is, to provide adequate protection for the person concerned. Consultation also takes place with the Ministry of Foreign Affairs in The Hague, the missions of the Kingdom abroad and the relevant international organizations. The final decision on a request for asylum is taken by the Minister of Justice.
Article 4
91. Criminal liability for torture is regulated in the bill to implement the Convention against Torture. Other forms of physical violence are offences under Aruba's Criminal Code.
92. The perpetrator should in principle be a government official or other person acting in an official capacity. This action may consist of physical acts, attempts to commit such acts or procuring, permitting or tolerating such acts. As the forms of assault that qualify as torture constitute aggravated forms of assault, attempts too are offences.
93. Articles 313-318 of the Criminal Code of Aruba provide that the offence of assault and the aggravated forms of assault carry penalties. The sentences for the commission of such offences are included in these articles: the maximum sentences range from 2 years' imprisonment for assault (art. 313, para. 1) to 15 years' imprisonment for serious assault committed with premeditation (art. 316, para. 2). The sentences may be increased by a third for officials who commit the offence in the course of their duties (art. 46), where such officials breach a special legal duty or, in committing the offence, abuse a power, opportunity or means given to them by virtue of their office. The maximum sentence for serious assault committed by an official in the course of his duties is therefore 16 years (art. 316, para. 1, in conjunction with art. 46), but 20 years if the victim dies (art. 316, para. 2, in conjunction with art. 46). These are very much in line with the sentences contained in the bill to implement the Convention against Torture.
94. As regards the difference between the offences of torture and assault, it should be noted for the sake of clarity that under the terminology of Aruban criminal law only very serious forms of assault are eligible to be treated as torture. To treat torture as serious assault within the specific meaning of articles 315 and 316 of the Criminal Code would not, however, do justice to the purpose of the provisions of the Convention. Serious assault presupposes the causing of serious physical injury, including the mental injury referred to in article 84, paragraph 2, of the Code. Torture could, however, assume forms that involve severe pain or suffering but leave no physical or mental traces. This is why it would not be sufficient to use the term "serious assault" in the Ordinance implementing the Convention. Although reference is made to assault rather than serious assault in the definition of torture, it should nonetheless not be inferred from this that the definition does not extend to forms of assault that are less serious in terms of the pain and suffering caused than a serious assault occasioning physical injury.
95. The maximum term of imprisonment that can be imposed in Aruba is life (art. 11, para. 1). Article 14 of Aruba's Constitution also provides that the death penalty may not be imposed. It follows that this penalty no longer appears in Aruba's Criminal Code. It should also be noted that the maximum sentences do not apply merely to the perpetrator of the offence but also to those who arrange for or intentionally procure the commission of the offence or participate in it (art. 49).
Article 5
96. Articles 2-8 of Aruba's Criminal Code regulate jurisdiction. Articles 2, 3 and 8 of the Code are important in relation to the Convention. Under these articles the criminal law of Aruba is applicable to any person who commits torture either in Aruba or on board an Aruban aircraft or vessel, insofar as this jurisdiction is not precluded by international law. Aruban legislation therefore complies with the requirement of article 5, paragraph 1 (a), of the Convention.
97. In order to comply in full with the obligations formulated in article 5, paragraph 1 (b) and (c), and paragraph 2, of the Convention, article 5 of the bill to implement the Convention against Torture contains a universal jurisdiction clause. Under this provision, any person who commits torture outside the territory of Aruba commits an offence as defined in articles 1 and 2 of the bill. Although article 5, paragraph 2, of the Criminal Code of Aruba already partially provided for Aruba to have jurisdiction in the cases referred to in article 5, paragraph 1 (b), of the Convention, it was not possible to bring a prosecution in all cases.
Article 6
Officials responsible for investigating offences
98. Under the Code of Criminal Procedure (art. 184) the persons charged with investigating offences are police officers and special police officers, insofar as the latter have been appointed by or on behalf of the Minister of Justice. Others persons charged with investigating offences are those who have been designated in special statutory regulations as being responsible for enforcing the provisions of the regulations, for ensuring their observance or for investigating the offences defined in them (art. 185). Persons who are competent to investigate are the procurators general, the public prosecutors and the local police chiefs. If they exercise this power, they are designated as investigating officials for the purposes of the Code of Criminal Procedure (art. 1). The change in the situation whereby the public prosecutor is no longer charged with investigating but is merely competent to investigate reflects the fact that investigations are the specific responsibility of the criminal investigations department of the police.
99. The public prosecutor or Chief Public Prosecutor supervises the investigation and may issue orders to persons charged with investigating or competent to investigate offences (art. 183, para. 1). As regards general supervision, however, the Chief Public Prosecutor is bound by any instructions given by the Procurator General (art. 4, para. 2, Judiciary Organization Ordinance; see also art. 14, Code of Criminal Procedure). This means that the Procurator General, as head of the Public Prosecutions Service, can issue guidelines concerning investigations and sentencing demands. Only on appeal can the Procurator General give direct instructions for a further investigation (art. 183, para. 3). The public prosecutor has control of the entire preparatory investigation, subject to the provisions in the new Code of Criminal Procedure regarding the intervention of the examining magistrate (art. 183, para. 2).
Consequences of norm violations
100. As a result of the provisions of the conventions relating to human rights and the principles of due process, the courts have gradually acquired a greater freedom to weigh all the interests in an action. This jurisdiction to consider the different interests has supplemented their jurisdiction to apply the law. Inspired by the human rights conventions the courts have in recent decades developed their own "extra-legislative" system of sanctions. If the Public Prosecutions Service infringes the principles of criminal procedure, the courts may rule that its case is inadmissible or, where the infringement is less serious, that its evidence is not admissible. The requirement in each case is that the norm that has been violated is intended for the protection of the suspect and that the interests of the suspect have indeed been prejudiced by the violation.
101. The suspect or his counsel may also refer the question of a norm violation to the courts. Depending on the stage which the proceedings have reached, the judge who hears such an application will be the trial judge, the judge in chambers or the examining magistrate. It should be noted incidentally that the courts may themselves decide of their own volition to consider a norm violation (art. 413, para. 1). The main rule is that the judge examines whether the norm that has been breached can be rectified in a way that is in keeping with the nature and scope of the norm. He may issue the necessary instructions for this purpose (art. 413, para. 1). According to paragraph 2 of article 413, there will be no rectification if:
(a) This is no longer possible in practice;
(b) The Code has made a different provision for the relevant case; or
(c) The interests of the defence or the prosecution would be disproportionately harmed by rectification.
102. Separate provision is made for cases where the period allowed for deprivation of liberty has been exceeded. Under article 413, paragraph 3, this period may be extended in exceptional circumstances. However, this is possible only if the release from custody would undermine faith in the legal system to such an extent that it is definitely in the public interest that the prisoner should continue to be deprived of his liberty. Where this is the case the judge may, at the request of the public prosecutor, fix a new period of detention within not more than 24 hours of the expiry of the original period. In addition, it is necessary that the Code should fix a new period and that the statutory requirements should be fulfilled.
103. When rectification as referred to in paragraphs 1, 2 and 3 of article 413 is not possible, the norm violation does not as a rule have any consequences (art. 413, para. 4). Under paragraph 5 of article 413 there are two exceptions to this rule:
(a) Where a special statutory provision already stipulates the consequences of a norm violation (in other words, the act is a procedural nullity);
(b) In the event of infringement of norms essential to the proceedings the judge may decide in his final judgement to impose a procedural sanction, either of his own volition or at the request of the Public Prosecution Service or the defendant (or his counsel).
104. In the latter case (infringement of norms essential to the proceedings) the law provides the following sanctions:
(a) Reduction of sentence (art. 413, para. 5 (a));
(b) Exclusion of evidence (art. 413, para. 5 (b));
(c) Non-admissibility of the case of the public prosecutions service (art. 413, para. 5 (c));
(d) Compensation in addition to or instead of the above-mentioned sanctions (art. 413, para. 6).
105. If the sentence is to be reduced, there must be reasonable grounds for believing that the prejudice caused by the norm violation can be compensated. Evidence may be excluded only if the results of the investigation have been obtained directly by the irregularity and it is also reasonable to assume that the defence has been seriously prejudiced by the use of these results of the investigation. The Public Prosecutions Service's case will be held to be inadmissible only if the way in which the case has been handled has deprived the defendant of a fair trial.
106. The seventh and last paragraph of article 413 refers to all the previous paragraphs: when assessing a norm violation and considering what consequences should be attached to it and when weighing the various interests in a case, the judge must take special account first of all of the nature, importance and scope of the norm that has been violated, second of the seriousness of the violation and third of the degree of culpability of the person who violated the norm.
Pre-trial constraints - general
107. Book 3 of the Code starts with a general provision that codifies some general principles of due process (art. 71). The consent of a judge is required for the application of very far-reaching pre-trial constraints. Three new pre-trial measures are searches in the body (art. 78, para. 3), DNA testing (art. 79) and the tapping of data communications (arts. 167-174).
108. Article 71 sets out the general conditions that apply to the use of every form of pre-trial constraint. It does not alter the specific statutory requirements that govern the application of particular pre-trial constraints. The general conditions of article 71 are a codification of the most common unwritten principles of due process. These principles serve as general guidelines in determining the scope for discretion left by the application criteria (e.g. suspicion, serious objections and interests of the investigation).
109. The application of every form of pre-trial constraint is subject to the following general conditions:
(a) The use of the constraint must not be unreasonable, taking account of the different interests in the case (application must not be arbitrary);
(b) The power to apply a constraint must not be exercised for a purpose other than that for which it was granted (application must not be an abuse of power);
(c) The object of the constraint cannot be achieved in a different, more efficient and less radical way (subsidiarity);
(d) The seriousness of the infringement that will be caused by the constraint is justified by the seriousness of the offence (proportionality).
110. The codification of these principles does not mean that other (unwritten) principles cannot be invoked. This is evident even from the fact that article 413 deals with the consequences of violations of "norms", which are defined in paragraph 1 as being both regulations and rules of unwritten law.
Constraints involving deprivation of liberty: interview, police custody and pre-trial detention
Interview
111. It follows from article 73 that a suspect who has been arrested must be taken to a place of interview. Before the interview starts the suspect is advised of his rights (art. 82). In addition, article 48 provides that a suspect must be given the opportunity to exercise his right to legal assistance. Thereafter there are four possibilities:
(a) The interview starts immediately;
(b) The suspect is immediately detained in police custody;
(c) The suspect is brought before the examining magistrate to be remanded in custody;
(d) The public prosecutor or Chief Public Prosecutor releases the suspect.
112. It follows that an investigating official is not obliged to use all or part of the period of six hours which is allocated for the interview under article 80. Whether the official does so depends entirely on the circumstances. The period of six hours is intended as a maximum; if the interview can be completed more quickly, the suspect may not be forced to "serve out" the six-hour period. Under article 80, paragraph 2, the period starts at the moment when the suspect arrives at the place of interview. If, however, the suspect is not in a proper state to be interviewed, the period starts when he is.
113. In principle, the period between 10 p.m. and 8 a.m. is not counted in determining the maximum period. However, the Chief Public Prosecutor may direct that an interview started before 10 p.m. will continue thereafter if this in the interests of the investigation. The period of the interview after 10 p.m. is deducted from the six hours (art. 80, para. 1).
Detention in police custody
114. The public prosecutor or Chief Public Prosecutor before whom the suspect is brought or who has himself arrested the suspect may order after the interview that the suspect be detained in police custody in the interests of the investigation (art. 83, para. 1). Before the order is made the suspect is questioned by the public prosecutor or Chief Public Prosecutor. He is also informed that he will be assigned legal counsel free of charge for the duration of the police custody (art. 83, para. 2).
115. Under article 86 detention in police custody is possible only in the event of an offence for which pre-trial detention is permitted. If the trial has started, such an order may no longer be made for the same offence.
116. Article 87 specifies the periods. The order for detention in police custody remains in force for a maximum of two days. Only the public prosecutor is empowered to extend this order and may do this once for a maximum of eight days in the interests of the examination. An extension is permissible only in the event of urgent necessity. In keeping with the Brogan judgement of the European Court of Human Rights, the new Code provides that a suspect must be brought before the examining magistrate as quickly as possible, but in any event no later than 24 hours after the public prosecutor has ordered an extension of police custody. The maximum period that may elapse between the arrest of the suspect and his appearance before the examining magistrate is 3 days and 16 hours.
Pre-trial detention
117. Title VIII of Book 3 deals with pre-trial detention (remand in custody by order of the examining magistrate, further remand in custody by order of the district court and arrest by order of the district court). Article 100 specifies the cases in which pre-trial detention may be ordered:
"1. An order for pre-trial detention may be made where there is a suspicion of:
"(a) an indictable offence which, according to the statutory definition, carries a term of imprisonment of four years or more, or
"(b) one of the indictable offences described in article 204, paragraphs 1 and 2, articles 236, 245, paragraph 3, 259, 266 and 298, paragraph 1, articles 321a, 334, 339, 339a and 366, paragraph 1, and articles 368, 404, 405, 410 and 431 of the Criminal Code.
"2. The order may also be made if the suspect has no fixed address or place of residence in Aruba and he is suspected of an indictable offence that carries a term of imprisonment."
118. An order as referred to in article 100 may be made under article 101 only if there are "serious objections" against the suspect. In addition there should be a real risk that he will abscond or a belief that he constitutes a real threat to society (art. 101, para. 1). Article 101, paragraph 2, gives an exhaustive list of the grounds for a belief that a suspect constitutes a real threat to society. In brief, there must have been a serious breach of the legal order or a danger of recidivism or perversion of the course of justice.
119. An order for remand in custody is valid for a maximum of eight days and may be extended once for a maximum of eight days. The orders are always made by the examining magistrate on the application of the public prosecutor (arts. 92 and 93). The examining magistrate hears the suspect either before making the first order or at the earliest opportunity thereafter (art. 92, para. 3). Where application is made for the remand in custody to be extended, the examining magistrate should question the suspect if he believes there are grounds for doing so (art. 93, para. 3).
120. Before the start of the trial, an order for further remand in custody (art. 95) or arrest and remand in custody (art. 96) is made by the examining magistrate on the application of the public prosecutor. Under article 98, paragraph 1, an order for further remand in custody or for arrest and remand in custody by the examining magistrate remains in force for a period to be specified by the examining magistrate but not exceeding 60 days (art. 98, para. 3). In principle, the trial should therefore start within 90 days of the date on which the order for pre-trial detention takes effect. In special cases, however, the order may be extended once for a maximum of 30 days (art. 98, para. 4).
121. If the order for further remand in custody or for arrest and remand in custody has been made at the trial, it remains in force for an indefinite period and until it is cancelled. The same applies if the trial has started within the period of 60 days referred to in article 98, paragraph 1 (art. 98, para. 2).
122. An order for pre-trial detention may be cancelled at any time. This is done either by the examining magistrate or by the court depending on the stage of the investigation (art. 103, para. 1). A suspect who applies for the first time for the remand to be cancelled is given the opportunity to be heard about the application. Thereafter the judge is no longer obliged to hear the suspect on such an application. Appeal too lies only once against an order for pre-trial detention. By way of compensation, article 98, paragraph 5, provides that the suspect is given the opportunity to be heard on each application under article 98 (art. 98, para. 5).
123. The Code also provides for the possibility of suspending and postponing pre-trial detention (arts. 111-118). Depending on the stage of the proceedings, either the judge who ordered the pre-trial detention or the court that tries (or last tried) the case is competent to hear such an application (art. 114).
124. Part 7, Title VIII, Book 3 of the Code deals with pre-trial detention in the case of final judgements. Paragraphs 1 and 2 of article 105 are intended, in brief, to prevent a situation in which the duration of the pre-trial detention exceeds the duration of any non-suspended custodial sentence that is imposed. In the event of a constraint measure which entails - or may entail -deprivation of liberty the pre-trial detention therefore continues. If the notice of summons and accusation is quashed (art. 105, para. 5) or if appeal is lodged against acquittal on the facts or on a point of law (art. 105, para. 6), the trial (at first instance or on appeal) should start within three weeks of the final judgement.
125. If appeal is lodged after the final judgement at first instance, the orders referred to in articles 96 to 103 are made by the Joint Court of Justice (art. 108, para. 1). An order for further remand in custody or for arrest and remand in custody is valid for a period not exceeding five months and may be extended by the Joint Court of Justice once for a period not exceeding 30 days if there are good reasons for doing so. However, the Joint Court of Justice should assess within 30 days of appeal being lodged whether the cases and the grounds referred to in articles 100 and 101 are still present (art. 108, para. 3).
126. Article 108, paragraph 4, provides that an order for further remand in custody or for arrest and remand in custody applies for an indefinite period (until no appeal is possible) if it has been made during or after the trial or if the trial has started within the period specified in article 108, paragraph 3. This also applies if appeal in cassation has been lodged against the final judgement or if the Supreme Court has referred the case to the Joint Court of Justice in accordance with article 14 of the Cassation Regulations of the Netherlands Antilles and Aruba.
Preliminary judicial investigation
The structure of the preliminary judicial investigation
127. The Code is intended to reduce the role played by the examining magistrate as an extension of the investigating authorities. In fact, the examining magistrate has a passive role that consists of monitoring and checking. It is the public prosecutor who has complete charge of the preliminary investigation as a fully fledged dominus litis. At decisive moments his acts are checked or legitimated by the examining magistrate. This principle is reflected in article 155, paragraph 2; the public prosecutor has control of the entire preliminary investigation, without prejudice to the provisions concerning the intervention of the examining magistrate.
128. The passive function of the examining magistrate is evident, among other things, in relation to the use of pre-trial constraints. In principle, the examining magistrate cannot apply a constraint of his own volition either in the course of the preliminary investigation or otherwise; as a rule, he is dependent on an application by the public prosecutor. However, there are the following exceptions to this principle:
(a) The seizure of all objects liable to seizure (art. 130);
(b) An order for the surrender or transfer of any object liable to seizure (art. 131);
(c) An order for the surrender of "items of mail" insofar as they are obviously intended for or sent by the suspect (art. 140 in conjunction with arts. 127-129).
129. After the completion of the preliminary judicial investigation the examining magistrate may exercise his powers (including the power to impose constraints) of his own volition during any investigation order by the trial judge or the court sitting in chambers. In such circumstances there is no objection since the examining magistrate is acting as on the instructions of an independent court. The Code specifies four cases in which further investigation may be required:
(a) Further investigation after completion of the preliminary judicial investigation but before the trial starts (art. 274);
(b) Further investigation to determine whether a notice of summons and accusation is well-founded (art. 359);
(c) Referral back to the examining magistrate during the trial (art. 359);
(d) Referral back to the examining magistrate after resumption of the trial where the investigation has proved to be incomplete after due deliberation (arts. 390-391 in conjunction with art. 359).
130. The passive position of the examining magistrate is also apparent in relation to the application of constraints. An order for detention in police custody is made by the public prosecutor or Chief Public Prosecutor. Any extension is ordered by the public prosecutor. This extension is reviewed by the examining magistrate within 24 hours (art. 89, para. 1). The orders for pre-trial detention are always made by the examining magistrate on the application of the public prosecutor, but they are in the nature of an authorization. The public prosecutor does not have a duty to make use of this procedure.
131. Further evidence that the public prosecutor is in charge of the entire preliminary investigation is the fact that the use of a special constraint (see Book 3) is never dependent on the condition that a preliminary judicial investigation has been or will be instituted. Naturally, however, the authorization of the examining magistrate is always required for the application of very far-reaching constraints.
132. The examining magistrate still plays the pivotal role in interviewing and examining suspects, witnesses and experts. Only in the context of a preliminary judicial investigation can a suspect who is at liberty and any witnesses and experts be summoned to appear before the examining magistrate. Although the public prosecutor can appoint experts under article 190, only the examining magistrate can swear them in (art. 263), compel them to appear (art. 262, in conjunction with art. 247, para. 2) and impose a duty of secrecy on them (art. 271).
133. The scaled-down role of the examining magistrate in the investigation means that in his review role he can act as the appeal body for those cases in which the suspect wishes to challenge the actions of the public prosecutor.
The course of the preliminary judicial investigation: application and termination
134. If the public prosecutor considers that a preliminary judicial investigation is necessary in connection with an offence in accordance with the provisions of article 187, he applies to the examining magistrate for an investigation to be instituted immediately (art. 221). The suspect too can try to have an investigation started if he is in pre-trial detention and has not yet been committed for trial (art. 224, para. 2).
135. The termination of a preliminary judicial investigation is irrevocable (art. 272). Further investigation by the examining magistrate is possible only if he is so instructed by the court sitting in chambers or the trial judge.
136. The termination of a preliminary judicial investigation (in conjunction with the decision on whether or not to continue the prosecution) is regulated as follows. The examining magistrate terminates an investigation in two cases (art. 272). First of all, he terminates it if he believes that the investigation has been completed or there are no grounds for continuing it. In such cases the public prosecutor arranges within a month of the decision to terminate the investigation for the suspect to be committed for trial (art. 275 in conjunction with art. 279, para. 1) or to be sent a notice of discontinuation of prosecution (art. 279, para. 1). In the latter case the prosecution is terminated. Unless new evidence becomes known, the suspect can no longer be prosecuted in law for that offence (art. 179, para. 1, in conjunction with art. 282). In addition, every pre-trial detention order is cancelled by such notice (art. 283).
137. Second, the examining magistrate terminates a preliminary judicial investigation if the public prosecutor informs him in writing that the prosecution will be dropped. In such a case article 276 provides that the public prosecutor must inform the suspect immediately that he will not be prosecuted further in respect of the offence to which the investigation related (para. 1). In addition, every pre-trial detention order is cancelled at the moment of the decision to terminate the investigation (para. 2).
138. Under article 274, further investigation may be carried out by the examining magistrate after the termination of the preliminary judicial investigation and before the start of the trial.
The trial
Instituting proceedings
139. Usually proceedings are instituted by the service on the suspect of a notice of summons and accusation issued by the public prosecutor. The proceedings start at the moment of service (art. 284). Article 285 lists the requirements which the notice of summons must satisfy. The general requirement is that the suspect must reasonably be deemed capable of understanding the charge against him. Article 290 specifies that the period of the notice of summons should be seven days in normal cases. Until the trial has started, the public prosecutor can cancel the notice of summons (art. 291). Articles 299-301, which are in a separate part, deal with the institution of appeal proceedings.
Judicial measures in cases of urgency
140. What is of special significance is that the public prosecutor has the power in criminal proceedings to apply to the court on the basis of considerations relating to criminal procedure for measures that are not regulated by law. In this way the public prosecutor is able to respond adequately in the pre-trial period to a breach of the legal relationship between the parties concerned caused by the offence. For example, in some circumstances it may not be possible to arrange for the immediate termination of the situation constituting the offence or to exclude the possibility of a repetition of the offence (by pre-trial detention or by conditions imposed on suspension of such detention). The public prosecutor can also act more effectively to deal with acts of the suspect which improperly disrupt the balance of the procedural system of checks and balances (e.g. by unlawful influencing of the parties to the proceedings). Examples of measures for which application may be made by the public prosecutor, as cited in the explanatory memorandum to the bill, are a ban on committing any further offence and, in special cases, house arrest.
Article 7
141. Under articles 2 to 8 of Aruba's Criminal Code and article 5 of the bill to implement the Convention against Torture, Aruba has jurisdiction over crimes of torture no matter where and by whom they are committed. This means that the criminal justice authorities can prosecute the perpetrator even if the offence has been committed elsewhere, provided that the perpetrator is in Aruba. The obligation to prosecute in such cases - an obligation which follows directly from article 7 of the Convention - can therefore be fulfilled.
142. In such a case the ordinary rules of criminal procedure that are applicable under Aruba's Code of Criminal Procedure apply. It should be noted with regard to article 7, paragraph 3, of the Convention that the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms are - in any event insofar as they are relevant - directly applicable.
Article 8
143. Under article 3, paragraph 1 (h), of the Charter for the Kingdom of the Netherlands extradition is a Kingdom matter. This means that Aruba and the Netherlands Antilles cannot regulate the subject of extradition independently. The existing legislation on extradition consists of the Netherlands-Antilles Extradition Order (published in the Official Bulletin of the Netherlands Antilles, 1983 volume, No. 84), i.e. an Order in Council of the Kingdom. The surrender of war criminals is another subject that is regulated in the case of Aruba and the Netherlands Antilles by an Order in Council adopted by the Government of the Kingdom, namely the Surrender of War Criminals (Netherlands Antilles and Aruba) Order (published in the Official Bulletin of the Netherlands Antilles, 1954 volume, No. 115). It would be advisable to include the Convention against Torture in the list of conventions given in article 1 of the Order that can serve as a ground for extradition.
144. The Netherlands Antilles Extradition Order is also due for review, and discussions on this subject are currently in progress between the parties. Although this Order does not expressly provide that extradition can take place only pursuant to a convention, it follows from article 2, paragraph 3, of the Constitution of the Kingdom of the Netherlands that extradition should be based on a convention. Since this requirement is not elaborated in the Netherlands Antilles Extradition Order, this order - unlike the Netherlands Extradition Act - does not contain a summary of conventions that can serve as a basis for extradition.
Article 10
145. Since obtaining its separate constitutional status in 1986 Aruba has regulated independently all matters relating to the police and the prison system. One result of this has been increased emphasis on the correct treatment of prisoners and arrested persons in accordance with the provisions of the Constitution of Aruba safeguarding human rights.
Aruba's police force
146. Police training from the basic level upwards deals with the subject of universal human rights, including the rights of suspects and persons under arrest. The training course for police certificate I includes lessons on the theme of human rights and police ethics. This is also a compulsory subject at levels II, III and IV.
147. As regards in-service training for the police, the subject of human rights will also be covered in a basic skills course due to start shortly. This will take the form of workshops on the treatment of persons under arrest, and will be given on the spot by various bodies including the Aruban branch of Amnesty International. The police force thinks it important that the course should be tailored as far as possible to meet the practical requirements of the job. The basic skills course is intended to provide training for the police in those areas not otherwise covered in police training.
148. The guidelines relating to police treatment of persons under arrest are laid down in the Code of Criminal Procedure and, more specifically, in police orders. These guidelines describe in some detail the procedures for arrest, custody, interrogation and treatment of prisoners.
Aruban Correctional Institution (KIA)
149. During their training the staff of the KIA are taught about the rights of prisoners and human rights in general. Among the subjects dealt with are criminal law, the law of criminal procedure, introduction to law, prison law, first aid, conflict resolution, use of firearms, internal prison rules, social skills, human rights and ethics, sport and self-defence. It is intended in the future to alter the KIA training decree so that the staff receive retraining and further training. The KIA currently employs two social workers to assist and counsel the inmates, and also to train the staff.
150. It is planned to change the training in the near future to provide separate courses for two distinct jobs, namely a course for prison officers whose duties will consist of guarding, looking after and counselling the prisoners and another for prison guards who will be explicitly responsible for the security of the building or the staff and for the transport of prisoners. In anticipation of an amendment to the training decree, 23 people are now being trained as prison officers.
Articles 11 and 15
151. The general rule of conduct is that prisoners should be treated with the utmost care. A police officer is obliged to advise a suspect of his rights both at the time of the arrest for a cr
