CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Third periodic reports of States parties due in 1998
(ANTILLES AND ARUBA)*
[3 September 1998]
initial report submitted by the Government of Netherlands is contained
in document CAT/C/9/Add.1; for its consideration by the Committee,
see documents CAT/C/SR.46 and 47 and Official Records of the
General Assembly, Forty-fifth Session, Supplement No. 44 (A/45/44),
paras. 435-470. For the second periodic report, see CAT/C/25/Add.1,
2 and 5; for its consideration, see CAT/C/SR.210 and 211/Add.1
(closed) and Official Records of the General Assembly, Fiftieth
Session, Supplement No. 44 (A/50/44), paras. 111-131.
I. INFORMATION OF A GENERAL NATURE
report is submitted in accordance with article 19 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, which entered into force with respect to the Kingdom
of the Netherlands on 21 January 1989. The present periodic report
is submitted as much as possible in accordance with the general
guidelines regarding the form and contents of periodic reports.
This report deals with the period from 1 January 1994 to 1 January
third periodic report provides an update on issues covered in
the second report (CAT/C/25/Add.2). It also contains information
about new developments in legislation and policy, particularly
with reference to articles of the Convention which occasioned
additional questions by the members of the Committee against Torture
during the consideration of the previous report. Such developments
are then compared with or viewed in the context of the former
or current situation. Where the information contained in the former
report was deemed incomplete or unclear, a more detailed account
is given of how the Convention is now being implemented. Reference
is made to the previous reports in the case of articles where
no far-reaching or significant developments have taken place.
1995 the Criminal Code of the Netherlands Antilles did not explicitly
prohibit torture. It did, however, contain provisions relating
to various forms of assault (arts. 300-322). If broadly interpreted,
these articles of the Criminal Code of the Netherlands Antilles
were applicable to many forms of torture. In 1995, however, the
Government of the Netherlands Antilles decided to make the act
of torture punishable as a separate criminal offence rather than
as a form of assault or serious assault. The circumstances leading
up to this decision will be described in the section of this report
containing information on article 1.
having jurisdiction and remedies
procedure in the Netherlands Antilles is governed by what is known
as the "expediency principle". This means that for reasons of
public policy the Public Prosecution Service may decide not to
prosecute in a particular case. However, under the Revised Code
of Criminal Procedure any interested party may lodge a complaint
with the Court of Justice of the Netherlands Antilles against
such a decision. The Court then hears the interested party. If
necessary, the person whose prosecution is desired can be also
heard. The Court may then independently decide to direct the Public
Prosecution Service to prosecute.
where no complaint has been lodged the Court may direct of its
own volition that a prosecution should be brought or continued
(under article 28 of the Code of Criminal Procedure). In such
a case the provisions of articles 14-27 of the Code of Criminal
Procedure apply by analogy. It follows that before such an order
is made the Procurator-General will first be asked to report on
understand the background to the introduction of the new Code
of Criminal Procedure it is necessary to go back a long way. The
1914 Code was, in essence, based on the Dutch Code of 1838. Partial
amendments were subsequently made to the Code to update it, but
these tended if anything to make the system less clear. In view
of the specific expertise needed to draft an entirely new code,
the then Government of the Netherlands Antilles decided that this
major legislative operation should be prepared by a special committee.
As it was felt that the committee should be broadly based its
members were chosen from a variety of professions. The Committee
for the Revision of the Criminal Code and the Code of Criminal
Procedure was established by National Decree of 8 July 1985. Its
terms of reference were to advise the Government on how the two
Codes should be amended and updated. Although charged with the
revision of both codes, the committee confined its attention initially
to the Code of Criminal Procedure.
a lengthy, time-consuming and complex process the Uniform Code
of Criminal Procedure for the Netherlands Antilles entered into
force on 1 October 1997. The introduction of this Code has greatly
improved the legal position of suspects, for example in relation
to the powers of the police during the investigation of criminal
offences. These powers include arrest and detention, searches
of homes and other premises, searches of body and clothing and
seizure of objects. Under the new Code a variety of conditions
must be satisfied before the police are permitted to exercise
these "coercive" powers. These include the following general conditions:
The exercise of
the power should not be unreasonable taking into account the
interests at stake;
to exercise the power may not be used for a purpose other
than that for which it was conferred;
The power may
be exercised only if the goal cannot be achieved by other
less radical means;
of rights caused by the exercise of the power must be consistent
with the gravity of the offence.
suspect has the right to remain silent and is not obliged to answer
any questions asked by the police. Prior to any interrogation
by law enforcement officers regarding a suspect's involvement
in a punishable act, the person concerned must be advised that
he or she has the right to remain silent. The officers or magistrate
conducting the interview must at all times refrain from acts designed
to extract a confession by the suspect that is not given of his
or her free will (article 50 Code of Criminal Procedure).
to interrogation the suspect also has the right to request the
assistance of a lawyer. During interrogation it may be decided
to detain the suspect in the interests of the investigation. This
is known as police custody. An order for detention in police custody
may be made for a maximum of two days. Where necessary, this may
be extended for a further eight days (articles 83-91 Code of Criminal
Procedure). Under the Code of Criminal Procedure every suspect
held in police custody is provided with a lawyer free of charge
for the duration of the custody.
Ministry of Justice
was mentioned in the previous report that the infrastructure did
not provide the Minister of Justice with a separate government
department. It was also noted that the judicial entities did not
function as a whole but largely independently. This meant that
it was not possible to make structural changes to the judicial
system. This problem was tackled in 1993 when a Ministry of Justice
was established. The Ministry is now for the most part operational.
One of the most important tasks of the Ministry is monitoring
the implementation of certain international instruments such as
the Convention against Torture and developing sustainable policies
to ensure their implementation.
of the activities of the Policy Affairs Department is to supervise
and support the reorganization of the prison system of the Netherlands
Antilles. The Legal Affairs Department plays a major role in helping
to develop criminal justice policy. It does this by giving expert
advice, creating the framework for policy and providing guidance
and support. The Department also advises on the extent to which
policy goals can be achieved by means of new or modified legislation.
for the organization of courses
country's financial situation is still very critical. Nonetheless,
the authorities continue to make every effort to provide training
for law enforcement officers. This is sometimes done in cooperation
with non-governmental organizations. Recently, for example, in-service
training was provided for prison officers, with particular emphasis
on the various parts of prison law, criminal law and criminal
procedure as contained in the Revised Code of Criminal Procedure.
II. INFORMATION RELATING TO THE ARTICLES IN PART I OF THE CONVENTION
Government of the Netherlands Antilles decided in 1995 that torture
should be made a separate offence and that it would not await
completion of the revision of the Criminal Code, which began in
1997 after the revision of the Code of Criminal Procedure was
finalized. As mentioned previously, the revision of the Code of
Criminal Procedure was a lengthy and time-consuming process. Owing
to delays in the parliamentary consideration of the legislation,
it was no longer feasible to introduce a separate offence of torture
as part of the revised Criminal Code in the short term.
to say, the acts covered by the definition of torture in article
1 of the Convention against Torture in the criminal law of the
Netherlands Antilles were already designated as criminal offences,
in particular in title XX of Book 2 of the Criminal Code of the
Netherlands Antilles. However, the Convention imposes an obligation
to take a number of measures to cover special cases where pain
or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person
acting in an official capacity. These special measures include
establishing universal jurisdiction, excluding the defence that
the acts were committed pursuant to an order from a superior officer
or public authority and ensuring that extradition to other States
parties is possible for this offence.
is therefore a logical consequence of the Convention that a separate
offence of torture be introduced rather than bringing prosecutions
under criminal provisions not specially drafted to cover the crime
of torture. It was for this reason that the Government decided
that a separate "offence of torture" should be created. Pursuant
to article 1 of the Convention, the Government chose a definition
which is in keeping with the system of criminal legislation in
the Netherlands Antilles and yet at the same time covers the different
elements that constitute this offence. The text of the Country
Ordinance on the Criminalization of Torture (PB 1995, 197) is
attached to this report as an annex.
prosecutions for torture are brought on the basis of definitions
of offences not intended for this purpose, this can mean that
not all acts meriting prosecution are covered. For example, the
definition of the offence of aggravated assault presupposes that
serious physical injury has been caused, including the form of
mental injury referred to in article 84, paragraph 2, of the Code
of Criminal Procedure. In view of the provision of the Convention
a separate paragraph has therefore been included to show that
forms of mistreatment which cause mental anguish rather than physical
pain can also constitute torture. However, there must be a situation
of great fear or other form of serious mental anguish, and the
acts responsible must be deliberate.
Country Ordinance (Official Bulletin 1995, 197) introduces sanctions
for all acts of torture prohibited under the Convention. It also
introduces the principle of universal jurisdiction, and provides
that an order from a superior officer or a public authority may
not be invoked as a justification of torture. Attempted torture
is also an offence.
mentioned before in section I of the report (Information of a
general nature), the Ministry of Justice has - since its recent
establishment - played an important coordinating role in the implementation
of the Convention and also in the reorganization of the police
force. The police force is still in the process of being reorganized.
A Police Branch is currently being set up within the Ministry
to assist the Minister of Justice in his management duties, for
example human resource development. The Police Branch will also
help the Minister to implement the Convention. As such it will
form part of the official machinery that carries out the supervisory
duties of the Minister of Justice.
complaints committee on police brutality and ill-treatment was
established in 1994. This consists of a physician, a law lecturer
of the University of the Netherlands Antilles and a former public
prosecutor. The committee has been authorized to conduct investigations
independently. Anyone who has a complaint can contact the committee.
The committee will then proceed to investigate the complaint and
report its findings and recommendations to the Minister of Justice.
The Minister of Justice decides on the appropriate action to be
taken in each case. Parliament is informed of the results of the
investigation and the decision taken by the Minister.
May 1994 a bill was also passed which establishes and regulates
the functioning of a National Investigation Department (NID).
The NID became operational in 1997 and falls directly under the
jurisdiction of the Procurator-General. This department has a
staff of only three, and operates as an independent investigation
agency with regard to criminal cases against civil servants and
authorities, among others the police and prison personnel. At
the moment the NID is engaged in several ongoing investigations.
It is worthwhile mentioning that the NID is very understaffed
in view of the current workload. This is why the existing police
force's own Bureau of Internal Affairs deals with matters of a
Netherlands Antilles has obligations under both the Convention
against Torture and the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment. With
reference to the latter Convention and in view of recent events
in the remand centre in Willemstad, Curaçao, it is important that
the Committee should have the following information.
1994 the European Committee for the Prevention of Torture and
Inhuman or Degrading Punishment (CPT) visited the Netherlands
Antilles. Part of the CPT's published report contained serious
criticism of conditions in the prison and remand centre at Koraal
Specht. The main criticism was of the physical conditions in which
the prisoners were kept. However, the physical violence that occurred
was only on a very limited scale. This was viewed as a positive
its reaction the Government of the Netherlands Antilles discussed
the measures that had been taken in the short term in response
to the remarks and recommendations of the CPT. It should be emphasized
that the Government is very concerned about the conditions in
Koraal Specht, particularly the overcrowding and its consequences.
A very high priority is therefore still given to a thorough overhaul
of the prison system. Various measures have already been taken
to tackle this undesirable situation and others are under consideration.
reorganization activities are based on several reports prepared
at the request of the Government (e.g. Di Korekshon pa Korekshon
- Problems of the prison system in the Netherlands Antilles) and
on the CPT's report following its inspection visit in 1994, in
which it made several recommendations for improvements.
November 1996 a new director of the prison system was appointed.
A master plan for implementation was presented to the Council
of Ministers, where it was debated and approved. This has also
led to the conclusion of a cooperation agreement between the Netherlands
Antilles and the Netherlands. The latter will assist in the reorganization
process, which will be lengthy, time-consuming and costly. A mixed
working group has been given the task of overseeing and speeding
up implementation of the reorganization process. It is also expected
to produce proposals for the recruitment and selection of prison
personnel and expansion of the capacity of the prison.
the meantime some short-term modifications have been made. These
include: expansion of the capacity for holding illegal aliens;
refurbishment of police cells that could not be used because they
did not comply with such basic conditions as proper lighting and
ventilation; appointment of more prison personnel; construction
and use of classrooms; maintenance of buildings in 1995 and 1996;
implementation of security procedures in 1997; introduction of
new posts such as a public relations officer and the Internal
Affairs Bureau, appointment of a management team and expansion
of personnel affairs; courses for middle management; implementation
of new and improved selection standards to attract better educated
personnel; refresher courses for personnel; implementation of
new induction programmes for recruits; reactivation of the internal
support team; commissioning of the semi-open prison.
is regrettable that despite the efforts to improve conditions
within the prison system a prison riot could not be averted. The
riot lasted for three days (7-10 August 1997) and was occasioned
by an announcement by the governor that visiting hours would be
changed. The inmates took advantage of the abnormally low staffing
levels. Cell doors were lifted off their hinges and the prisoners
went on the rampage causing serious damage to the premises. After
consulting with the Minister of Justice and the police, the prison
governor decided not to use force to quell the riot since he wished
to avoid casualties.
Parliament of the Netherlands Antilles was very concerned about
these events and urged the Minister of Justice to investigate
the matter. The Minister of Justice set up an independent committee
to investigate the causes of the riot and also the allegations
that prison personnel assaulted inmates and that fellow inmates
assaulted each other both during and after the riot. The committee,
known as the Paula Committee after its chairman, was established
on 4 September 1997 and was given one month to present its findings
to the Minister. A copy of its findings is attached to the present
report. It should be noted that the annexes to which the Paula
Report itself refers have not been included here.
completing its investigation the Committee concluded that the
basic causes of the August riot were as follows:
The change in the prison visiting rules;
The way in which this was communicated to the inmates;
The management's refusal to discuss the changes with the inmates;
The alleged sabotage by prison personnel;
The abnormally low staffing level on the day in question.
regards the allegation of assault by the prison personnel, the
Committee could find no evidence that prison personnel had assaulted
inmates during the disturbances. However, the Committee did find
that incidents had occurred on 11 and 18 August which needed to
be investigated by the National Investigation Department. It was
clear from the statements by inmates, which were substantiated
by some of the prison staff, that irregularities had indeed taken
place on the dates mentioned. The Committee found evidence of
assaults on some inmates, some committed by prison guards and
others by fellow inmates.
Committee considered the situation in the prison to be dangerous
and explosive and presented a list of recommendations for improving
the safety of both inmates and prison guards. It made the following
The cells that were destroyed should be restored as soon as possible;
Consideration should be given to the idea of transporting the
most dangerous criminals to high security facilities in the Netherlands;
Alternatively, such prisoners should be incarcerated in emergency
Regime differentiation should be reintroduced;
Qualified personnel should be appointed without delay to assist
the prison governor;
The problem of the abnormally high level of sick leave should
New internal rules should be introduced;
The Minister should urge the National Investigation Department
to finish its investigation into the irregularities as soon as
Rehabilitation programmes should be improved.
after the publication of the Paula Committee's Report, the Minister
of Justice announced that:
A Dutch project manager had arrived in September 1997 to take
charge of the reorganization of the prison system and that this
had now reached the stage at which preparations for structural
measures could start in accordance with the Master Plan and the
A second project manager had also been appointed to supervise
the preparations for the infrastructural side of the process;
Building work to repair the damage was in progress;
Transferring the most dangerous criminals to the Netherlands was
not an option because the Netherlands too had overcrowding problems
in its prisons;
Efforts were being made to tackle the issue of overcrowding, for
example by considering alternative ways of punishing offenders;
a working group had recently been established to look into this
The Netherlands had made funds available for the construction
of a new prison;
Technical support would be provided by the Netherlands for the
reorganization of the prison system.
should also be noted that the Prison System Ordinance has been
approved by Parliament (PB 1996, 73). A copy is attached to this
report. This new ordinance will greatly improve the position of
prisoners by serving as a safeguard of their rights. Among the
items it covers are the classification of the penal establishments,
the different types of prison regime, management and supervision,
work arrangements, the mental and spiritual welfare of the prisoners
and complaint schemes. However, the ordinance has not yet taken
effect because the requisite supplementary legislation to implement
the new provisions is still being prepared. Draft texts of the
ordinance are already available. The Government intends the ordinance
to take effect as soon as possible.
Netherlands Antilles has committed itself to observing and respecting
the laws and standards of war and to render their violation punishable.
These commitments have been entered into in various conventions
that apply to the Netherlands Antilles. The implementing legislation
is the Order of 16 June 1954. The conventions can also be implemented
by means of the ordinance of 2 February 1993 implementing the
Convention on the Prevention and Punishment of the Crime of Genocide
and by means of the Criminal Code (Book 2, Titles 1 and 11). The
bill that regulates implementation of the Convention against Torture
does not explicitly specify that war and political instability
are not circumstances warranting exemption from the provisions
governing torture. However, this can be inferred from article
4, which states that an order from a superior officer or a public
authority or a statutory provision (articles 44 and 45 of the
Criminal Code) does not constitute a ground for immunity from
criminal liability in the case of the criminal offence of torture.
This article also corresponds to article 3 of the ordinance implementing
the Genocide Convention. Although it is naturally inconceivable
that any statutory provision of the Netherlands Antilles could
be invoked as a justification of torture, it should be remembered
that in view of the far-reaching form of extraterritorial jurisdiction
to which this offence is subject provisions of foreign law could
also be invoked. This is why mention of article 44 of the Criminal
Code is essential.
and expulsion of illegal aliens
aliens who have been arrested pending their expulsion are no longer
housed in police premises but are kept instead in purpose-built
premises. The complex can accommodate around 100 illegal aliens.
In other respects reference should be made to previous reports.
before torture was made a separate offence, it was possible, as
mentioned previously in this report, to prosecute it under other
existing offences of the Criminal Code if these were broadly interpreted.
However, such an interpretation did not properly fulfil the requirements
of the treaty provisions. This was one reason why it was decided
to introduce a separate offence of torture.
follows from article 1 of the Convention that even in the case
of an attempt to commit torture or acts constituting complicity
or participation in torture, the official capacity of the person
concerned remains an element of the offence. In such cases, the
actual perpetrator of the offence need not act in this capacity.
The first part of the article of the implementing ordinance implements
the treaty obligation in such a way that an official who is an
accomplice or participant in torture commits an offence. The second
part covers the position of a person who is not himself a public
official or person acting in an official capacity, but is induced
by an official to commit torture or commits torture with the consent
or acquiescence of a public official.
to commit a criminal offence and acts constituting complicity
or participation in offences are criminalized in articles 47,
49 and 50 of the Criminal Code. Article 47 provides that an attempt
to commit an offence is itself an offence if the intention has
been revealed by the offender's starting to carry it out and if
completion of the act was prevented purely by circumstances independent
of the offender's will. This principle is repeated in article
5 with regard to the criminalization of torture.
separate Ordinance to implement the Convention on Torture, which
has been presented to Parliament and debated and approved, establishes
universal jurisdiction for the criminal offence of torture. This
is regulated in article 6.
is no obvious reason why there should be an obligation to establish
this far-reaching form of extraterritorial jurisdiction. The offence
of torture does not have any intrinsically cross-border characteristics.
In practice the offender and victim often have the same nationality
and the offence is usually committed in the territory of the State
of which the offender and victim are nationals. It should also
be noted that as long as offenders have the support of the social
or political circle in which they move they will have no reason
to flee. The mere fact that torture is a very serious offence
which arouses widespread indignation and concern is not in itself
a sufficient justification for application of the principle of
rules of the Code of Criminal Procedure of the Netherlands Antilles
are applicable to offences falling within the jurisdiction of
the courts of the Netherlands Antilles. The courts have the power
to direct that a suspect be taken into custody or other measures
taken to ensure his or her presence, provided that the normal
conditions applying to such measures are fulfilled. Under the
Extradition Act these measures may also be taken in connection
with extradition, even before a request for extradition has been
articles 187 and 221 of the new revised Code of Criminal Procedure,
a preliminary investigation must take place as soon as there is
reason to believe that an offence has been committed.
is made in this respect to the previous reports.
Code of Criminal Procedure now contains a new part concerning
international judicial assistance. This specifies the grounds
for refusing a request for judicial assistance and includes a
special rule governing interviews by foreign police officers (arts.
555 et seq.).
such a request is based on a convention, it will be granted wherever
possible. Even if it is not based on a convention it will still
be granted if it is reasonable and provided that it is not contrary
to a statutory regulation or a direction of the Minister of Justice.
Article 559 lists the grounds on which a request may be refused.
Article 560 provides that requests for mutual assistance in connection
with offences of a political nature may not be granted without
an authorization by the Minister of Justice. This authorization
may be given only for requests based on a convention and after
consultation with the Minister of General Affairs. Articles 561
to 565 set out the procedure to be followed.
of the conclusions in the previous report was that the training
given to police officers, prison officers and forensic instructors
in prisons (FOBA) was insufficient. The management of the remand
centre introduced a new training programme in 1992 as part of
the reorganization process and is constantly engaged in upgrading
the training programmes.
training programmes have been introduced for police officers too
as part of the reorganization process. New recruits now go through
an induction programme known as "Police 2000" at the Police Academy.
This concentrates on teaching social skills. In this connection
the police management have developed a policy on interpreting
the tasks of the police force and its officers throughout the
1990s. The induction programme also provides both professional
and non-vocational on-the-job-training to ensure that police officers
have the right attitudes and skills to enable them to cope with
the rapid changes that are taking place in society.
of suspects and other related matters is regulated in the Code
of Criminal Procedure. The general instructions on how to perform
interrogations are given to the police in the Code of Criminal
Procedure. A judge will not use any evidence which has been obtained
through improper use of police powers under the law. If no other
evidence can be adduced, it will not be possible to prove that
the accused committed the offence and he or she will have to be
the evidence has been obtained directly by means of a breach of
fundamental principles and this has seriously prejudiced the defence's
case, it may not be admitted in court. A breach of this kind will
be deemed to have occurred where statutory rules or rules of unwritten
law have been infringed.
mentioned under article 2 of this report, the NID is the independent
entity under direct supervision of the Procurator-General which
is responsible for investigating cases involving public officials,
police officers or prison officers. Since 1995 the NID has been
charged with supervising the functioning of the public officials
referred to above.
is an independent board of visitors for the prisons and remand
centres (established by National Decree of 14 December 1962, Official
Bulletin 1962, No. 160). The function of this board is to supervise
and assist the governor of such institutions and the Minister
of Justice. Because the inmates are in a position of dependency,
there should be a completely independent body which they can approach
if they so wish. The members of the board of visitors are appointed
by the Minister of Justice and they report to the Minister. Since
it is essential that the board has regular and systematic contact
with both management and inmates, monthly meetings are held. The
members of the board are authorized to enter and inspect any parts
of the prisons at any time. The board has the obligation to monitor
and report any abuse of power. It has become very efficient in
carrying out its supervisory duties.
courts can also play a supervisory role if inmates apply to them.
Prisoners may require that their case be handled in accordance
with the legal provisions of the Convention. Proceedings before
the courts are usually brought by way of application for an interim
public prosecutor may initiate a criminal investigation and the
Procurator-General has the responsibility to ensure the proper
prosecution of a criminal case. Furthermore, the Procurator-General
may give the public prosecutor instructions about how to conduct
article 15 of the Revised Code of Criminal Procedure the right
of complaint entitles the prisoner to file a complaint with the
relevant judicial authorities. The right is modelled on the modified
right of complaint introduced in the Netherlands in 1984. The
right of complaint also applies where the police or criminal justice
authorities are dilatory; after a reasonable period the prisoner
may file a complaint for non-prosecution. This applies even where
no decision has been taken not to prosecute.
NID falls directly under the jurisdiction of the Procurator-General
and offers a greater guarantee of an independent and objective
investigation where a complaint is filed about police brutality.
This is an improvement on the previous situation where complaints
about ill-treatment were investigated by colleagues of the accused
Prison System Ordinance makes provision for the establishment
of a complaints committee for the remand centre/prison. The draft
ordinance has been debated and approved by Parliament, but has
not yet become law for the reasons mentioned previously.
law of the Netherlands Antilles provides several means by which
victims of crimes of violence may obtain compensation. Both the
Civil Code (arts. 1382-1397 d, for damage caused to others) and
the Revised Code of Criminal Procedure (art. 206, for damage caused
by the offender) of the Netherlands Antilles contain provisions
governing compensation and damages that ensure that the victim
of an act of torture obtains redress.
position of the injured party too is greatly improved under the
new Code of Criminal Procedure. During the trial the victim may
apply for compensation not exceeding ANG 10,000. But the victim
may also obtain support and assistance during the investigation.
For example, the police may arrange a simple compensation scheme
with the offender, after which the prosecution is discontinued.
Code of Criminal Procedure of the Netherlands Antilles contains
rules (arts. 381-387) for the evaluation of evidence. As mentioned
previously, evidence that is obtained unlawfully may not be used
by the prosecution.
position of witnesses has been bolstered by safeguards in the
new Code, which take effect where the balance in the proceedings
is in danger of being disrupted because the witness can no longer
discharge his or her statutory duty to help in ascertaining the
truth. If witnesses are threatened to such an extent that it would
not be reasonable to expect them to give evidence in public, the
law of criminal procedure should afford them protection by allowing
them to give evidence in private without revealing their identity.
Revised Code of Criminal Procedure describes such a witness as
an anonymous witness. In many criminal cases the police need statements
from witnesses to produce evidence that the suspect has committed
the criminal act of which he is suspected. Particularly in the
case of serious offences it is important to the suspect that no
testimony be given against him. In such cases, there may be a
serious threat to the witnesses. By law the examining magistrate
may now direct in such cases that a witness will remain anonymous.
The witness will be questioned in such a way that his or her identity
is made here to the previous reports and to the section of this
report dealing with articles 10 to 14.
of the Committee of Inquiry, established by National Decree of
4 September 1997, No. 1, into the riot in the remand centre and
prison on Curaçao.
Decree of 5 January 1994, No. 4, establishing the Steering Committee
on Alternative Penal Sanctions.
Decree of 15 September 1997, No. 18, amending the National Decree
of 5 January 1994.
Decree of 6 November 1997, No. 10, establishing the Advisory Committee
on the Alternative Disposal of Criminal Cases.
Ordinance of 13 October 1995 implementing the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Ordinance of 27 June 1996 to establish principles for the prison
of the Minister of Justice of 1 January 1996 on the prevention
of torture, the use of cells and the treatment of arrested persons.
annexes may be consulted in the files of the Office of the United
Nations High Commissioner for Human Rights.
I. PENAL AND PENITENTIARY SYSTEM
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
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).
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).
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.
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).
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.
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.
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.
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.
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.
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:
after conviction by a competent court;
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;
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;
of a minor for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the
competent legal authority;
of persons to prevent the spreading of infectious diseases
and of persons of unsound mind, alcoholics and drug addicts;
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.
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
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.
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.
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
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.
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.
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
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.
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.
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
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
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.
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
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.
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
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).
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
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.
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
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.
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
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).
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.
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.
responsible for investigating offences
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.
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).
of norm violations
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.
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
This is no longer possible in practice;
The Code has made a different provision for the relevant case;
The interests of the defence or the prosecution would be disproportionately
harmed by rectification.
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.
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:
Where a special statutory provision already stipulates the consequences
of a norm violation (in other words, the act is a procedural nullity);
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).
In the latter case (infringement of norms essential to the proceedings)
the law provides the following sanctions:
Reduction of sentence (art. 413, para. 5 (a));
Exclusion of evidence (art. 413, para. 5 (b));
Non-admissibility of the case of the public prosecutions service
(art. 413, para. 5 (c));
Compensation in addition to or instead of the above-mentioned
sanctions (art. 413, para. 6).
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.
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
constraints - general
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).
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).
The application of every form of pre-trial constraint is subject
to the following general conditions:
The use of the constraint must not be unreasonable, taking account
of the different interests in the case (application must not be
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);
The object of the constraint cannot be achieved in a different,
more efficient and less radical way (subsidiarity);
The seriousness of the infringement that will be caused by the
constraint is justified by the seriousness of the offence (proportionality).
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.
involving deprivation of liberty: interview, police custody and
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:
The interview starts immediately;
The suspect is immediately detained in police custody;
The suspect is brought before the examining magistrate to be remanded
The public prosecutor or Chief Public Prosecutor releases the
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.
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).
in police custody
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).
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.
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.
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
"(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."
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.
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).
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).
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).
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).
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).
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.
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).
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.
structure of the preliminary judicial investigation
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
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:
The seizure of all objects liable to seizure (art. 130);
An order for the surrender or transfer of any object liable to
seizure (art. 131);
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).
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
Further investigation after completion of the preliminary judicial
investigation but before the trial starts (art. 274);
Further investigation to determine whether a notice of summons
and accusation is well-founded (art. 359);
Referral back to the examining magistrate during the trial (art.
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.
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
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
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.
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.
course of the preliminary judicial investigation: application
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).
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.
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).
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).
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.
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.
measures in cases of urgency
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.
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.
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.
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.
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.
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
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.
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
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
Correctional Institution (KIA)
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.
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.
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 criminal
offence and at the start of the interview. The internal hierarchy
of the police and the division of responsibilities and powers
serve in general as a guarantee that a check is kept on the proper
treatment of the suspects and prisoners. In addition, any dysfunctional
behaviour of police officers is regularly raised in job performance
The Code of Criminal Procedure contains regulations that expressly
govern interviews of suspects (see paras. 111-113 above).
Article 81, paragraph 1, of the Code of Criminal Procedure also
provides that persons who are held in police custody should not
be subjected to any limitations other than those that are absolutely
necessary for the purpose of their detention. An investigating
official should also inform a suspect before his interview that
he is not obliged to answer questions (art. 82, para. 1 (b), Code
of Criminal Procedure).
The official conducting the interview should also refrain from
doing anything intended to obtain a statement that cannot be said
to have been freely made. It follows that he must refrain from
assault, mental or physical coercion, promises, etc. Failure to
observe this regulation means that the investigation is void and
that the trial judge may refuse to accept the official report
containing the results of the investigation as evidence of the
offence with which the suspect is charged. The results obtained
in this way may be treated by the judge as evidence unlawfully
obtained. Unless there is sufficient other evidence available
that has been lawfully obtained, the accused will be acquitted.
The first safeguard which a suspect has is that he must be informed
of his rights at the time of his arrest (art. I.5, para. 3 (b)
of the Constitution of Aruba). Furthermore, a suspect has the
following safeguards under the new Code of Criminal Procedure.
Article 50, paragraph 1, provides that the suspect has the right
to refuse to answer questions. The principle underlying this rule
is that no one can be obliged or forced to incriminate himself.
This is one of the basic principles of criminal procedure. The
suspect is normally advised of his rights at the moment when he
is taken to the place of interview and in any event before the
interview starts (art. 82, para. 1).
In addition to the oral notification referred to in paragraph
1 of article 82, the suspect is given a form stating his rights
in a language he understands (art. 82, para. 2). The model of
the form is adopted by order. The form is always available in
at least the following languages: Dutch, Papiamento, English and
Spanish. If there is serious doubt as to whether a suspect has
understood the notification, the interview does not start until
the assistance of an interpreter has been obtained (art. 82, para.
Other safeguards are provided for by article 48, paragraph 3,
of the Code of Criminal Procedure. This article gives the suspect
the right to legal assistance. The intention of the legislator
is that a suspect should be advised of his rights before the start
of the first interview (police interview). If the suspect states
that he wishes to exercise this right and this decision is the
product of his free and rational choice, the interview must be
postponed until counsel has talked to the suspect. An exception
to this rule is possible only if the investigation does not admit
of any delay or it would not be reasonable to await the arrival
Article 49 of the Code of Criminal Procedure gives the suspect
the right to legal assistance during the interview. A suspect
is entitled to obtain legal assistance in all cases in which he
is interviewed in accordance with the provisions of the Code.
Counsel is given the opportunity to make remarks during the interview.
An exception to this is article 48, paragraph 4: counsel is not
entitled to be present during the interviews conducted by investigating
officials - these are the police interviews.
The Public Prosecution Service investigates any suspected cases
of torture. The head of the Public Prosecution Service - the Procurator
General - is empowered to issue instructions to officials charged
with police duties to prevent, detect and investigate indictable
or summary offences if he considers this to be necessary in the
interests of justice.
The National Criminal Investigation Department can be assigned
to investigate criminal acts performed by police officers and
special officials with police powers. The National Criminal Investigation
Department was established by ministerial decision of 23 February
1993. If the Chief Public Prosecutor considers it necessary, he
may request the Procurator General to order an investigation by
the National Criminal Investigation Department.
The general criterion is that the National Criminal Investigation
Department is used in cases where there must be no doubt whatever
about the objectiveness of the investigation. The objectiveness
of such an investigation may be assumed since the National Criminal
Investigation Department is relatively remote from the police
officers and officials with police powers. The Department is called
in to investigate cases of the use of force which are reported
to the Public Prosecution Service in accordance with the rules
of the National Decree on the Use of Force and Safety Searches.
This applies in any event where the force employed causes death
or serious physical injury.
A police officer is authorized to use force against persons or
property in the lawful discharge of his office or duties, although
this is subject to strict rules. For example, the use of force
must be justified by its aim, taking account of its dangers, and
it must not be possible to achieve the aim in some other way (art.
3 of the National Police Ordinance, AB 1988, No. 18). Moreover,
the use of force must be preceded wherever possible by a warning
(art. 2). The use of force is regulated in greater detail in a
separate national decree (the Decree on the Use of Force and Safety
Searches by the Police; AB 1988, No. 60).
Under article 11 of the National Decree on the Use of Force and
Safety Searches by the Police, every police officer who employs
force against persons in the course of his duties must immediately
report this and the reasons for and consequences of the force
to his superior or department head, who must then immediately
inform the head of the police force. If the force employed by
the officer has resulted in physical injury of more than a minor
nature and in all cases in which a firearm has been used, the
public prosecutor must be notified by or on behalf of the head
of the police force, first of all orally without delay and thereafter
in a written report within 48 hours (art. 11, para. 6, of the
National Decree on the Use of Force and Safety Searches by the
Police). Whether the police force itself or the National Criminal
Investigation Department is charged with the investigation depends
on the gravity of the offence.
Investigations of offences by staff of the Aruban Correctional
Institution (KIA) are governed by the same rules as investigations
concerning police officers and officials with special police powers.
Cases involving the use of force should also be dealt with in
the same way, although if the force has not caused death or serious
physical injury and no injury has been caused by the use of firearms
the investigation will in principle be carried out by the Aruban
Police Force. If an arrested person or prisoner dies while in
the custody of the KIA the investigation is conducted by the National
Criminal Investigation Department.
The Board of Visitors is responsible for ensuring that the rules
are properly observed within the KIA and has access to the KIA
at all times. Once a month a representative of the Board is present
to hear the complaints of the inmates. Complaints regarding prison
guards are then discussed with the governor. If necessary, the
Board reports the matter to the Minister of Justice. Neither the
governor nor the Board is competent to impose sanctions. Disciplinary
measures are taken in Cabinet and then approved by the governor.
Article 47 of the Code of Criminal Procedure states:
"1. A suspect is
a person who is reasonably suspected on the basis of facts
and circumstances of being guilty of a criminal offence.
"2. During a prosecution
a suspect is a person against whom the prosecution is brought."
and circumstances referred to in paragraph 1 should provide grounds
for a reasonable suspicion of guilt: the view of the investigating
official is therefore not necessarily decisive. In addition, the
suspicion of guilt should be limited as far as possible to one
or more given persons: an abstract indication of a widely defined
group of people cannot as a rule provide an acceptable ground
in law for suspicion of a criminal offence.
The Code provides a system of early intervention. Each suspect
who is detained in police custody is assigned counsel as soon
as the detention order is made (art. 62, para. 1). Depending on
the financial resources of the suspect the assignment is made
either at the expense of the suspect or free of charge (or partially
free of charge) (art. 61). If no order for police custody is made,
a person suspected of an indictable offence who has been found
to lack financial resources is assigned counsel at his request
as soon as the prosecution starts (art. 63).
A suspect is entitled to inspect the case documents. As soon as
the preliminary judicial investigation has been concluded or,
if there has been no investigation, as soon as the suspect has
been committed for trial, the suspect's right to view the case
documents may no longer be subject to restrictions (art. 53).
In principle, the above also applies if any investigation has
not resulted or will not result in a prosecution (art. 51, para.
3). During the preliminary investigation the public prosecutor
may refuse to show the suspect certain case documents if this
is definitely necessary in the interests of the investigation
(art. 51, para. 1). The documents referred to in article 52 may
never be withheld from the suspect.
Finally, the Code contains a number of rights inspired by the
European Convention on Human Rights. For example, articles 55-56
of the Code lay down the right to a hearing within a reasonable
time as guaranteed in article 6, paragraph 1, of the European
Convention, and article 318, paragraph 3, of the Code confers
the right to obtain the attendance and examination of witnesses
for the defence on the same conditions as witnesses for the prosecution.
The rules for bringing the suspect before the examining magistrate
have also been brought into line with article 5, paragraph 3,
of the European Convention and the way in which the European Court
of Human Rights interpreted the expression "brought promptly"
in the Brogan judgement.
measures and urgent necessity
People whose interests are directly affected by a criminal case
may apply to the criminal courts for an "interim injunction".
The Code makes a special effort to ensure that interests that
have been violated by the offence receive balanced treatment.
Naturally, the legislator was not able to make provisions to cover
every eventuality in practice. This is why the interim injunction
procedure in criminal cases may provide a remedy. If an interested
party needs a more specific measure for which the law makes no
provision, he can take action independently. For example, the
victim may request a restraining order in cases in which the suspect
is not or cannot be remanded in custody (under such an order the
suspect is barred from entering certain streets or neighbourhoods).
In addition, a third party with an interest in the case could
request leave to inspect the case documents with a view to legal
action to be instituted by him.
Article 304 of the Code has been drafted to take account of the
De Cubber and Hauschildt cases heard by the European
Court of Human Rights, both of which concerned a trial judge who
had previously been involved in the preliminary investigation.
Article 304 provides as follows:
"A judge who has
carried out any investigation as examining magistrate or taken
any decision in the case shall not take part in the trial,
on pain of nullity."
As regards an examining magistrate who has taken any decision
in the preliminary investigation, the Supreme Court has ruled
that the mere involvement of a judge in decisions on pre-trial
detention does not affect his impartiality. However, the situation
is different where a decision in the preliminary investigation
deals in such depth with the question of guilt that the suspect's
fear that the judge is not impartial is objectively justified.
This was the case in the Hauschildt case: according to
the European Court of Human Rights there is too little difference
between the question of whether a "particularly confirmed suspicion"
exists with regard to a suspect (a requirement in Denmark for
the application of pre-trial detention) and the question of guilt.
As the Code also excludes as trial judge a person who has taken
any decision in the preliminary investigation, this in any event
avoids discussion of the question of whether the pre-trial detention
requirement of "serious objections" does not in some cases go
just as deeply into the question of guilt.
Although the legislator recognizes that the admission of statements
by anonymous witnesses may prejudice the fairness of the trial,
the Code nonetheless contains an arrangement for witnesses who
have been threatened. The legislator justifies the restriction
of the suspect's right of examination on the grounds that it is
not acceptable in a State governed by the rule of law that the
evidence - and the judgement of the court based on it - should
be affected by the threat of violence. The European Convention
on Human Rights (in particular art. 6, para. 3, opening words
and (d)) does not exclude evidence obtained by means of the statement
of an anonymous witness made in the preliminary investigation.
In each case the European Court of Human Rights has stated at
the outset that the provision of rules about the admissibility
of evidence is first and foremost a matter of national law and
that the evaluation of the evidence is generally a matter for
the national courts. Nonetheless, a number of minimum requirements
can be inferred from the decisions of the European Court of Human
Rights, particularly in the Kostovski and Doorson
cases. These conditions are as follows:
The interests of the defence must be weighed in the appropriate
cases against those of the witnesses and victims summoned to give
evidence; this may lead to a witness being heard anonymously;
the suspect should always be given a sufficient and proper opportunity
to examine the anonymous witness and challenge his testimony;
The judge should satisfy himself of the identity of the witnesses
and form an opinion about their reliability;
A conviction may not be based solely or to a decisive extent on
the testimony of anonymous witnesses.
In view of the above the Code of Criminal Procedure contains a
strict rule governing the conditions in which an interview can
be conducted anonymously. These may be summarized as follows.
First of all, the witness in question must have been seriously
threatened in connection with the statement to be made by him
(art. 261, para. 1). This requirement is elaborated in article
261, paragraph 2:
"A serious threat
within the meaning of paragraph 1 may be assumed if:
"(a) the witness
may consider that a threat exists to such an extent in respect
of the statement to be made by him that it is reasonable to
fear for the life, health or social functioning of the witness
or another person;
"(b) the witness
has indicated that on account of this threat he will not otherwise
make a statement; and
"(c) there is good
reason to suppose that the witness will not be able to appear
at the trial for that reason."
Second, the objections of a witness who wishes to have complete
anonymity are checked by the examining magistrate. The latter
should list these objections in an official report. He also states
in the official report whether he considers the objections to
be well founded (art. 261, para. 4).
Third, there is the criterion of proportionality: a witness may
not be examined anonymously if the indictable offence in question
is not one for which pre-trial detention is permitted (art. 261,
Fourth, the examination of an anonymous witness is entrusted to
the examining magistrate, who thereby provides the judicial safeguard
for the collection of evidence in the preliminary investigation.
In urgent cases, however, the witness may also be examined by
the investigating official if it is not possible to await the
examination by the examining magistrate (art. 261, para. 8). An
example would be very special cases in which time is of the essence
and the witness must be heard immediately (e.g. because he or
she is going abroad). The safeguards which apply to an examination
by the examining magistrate should then be observed as far as
Fifth, article 161, paragraph 4, contains a number of regulations
relating to the course of events during the examination. The examining
magistrate ensures that the witness cannot be recognized. In principle,
the suspect and his counsel may attend the examination. In exceptional
cases they (and hence the public prosecutor too) are excluded
from the examination and are only given the opportunity to submit
Finally, the anonymous witness should be sworn in by the examining
magistrate (art. 261, para. 6). This rule is important in relation
to article 335. Under this article, a statement made under oath
to the examining magistrate by a witness who cannot appear at
the trial may be deemed to have been made at the trial provided
that it is read out in court.
To ensure that the identity of an anonymous witness is not disclosed,
article 252, paragraph 2, provides for a right to refuse to give
evidence. Article 251, paragraph 1 (the right to refuse to give
evidence in one's official capacity), applies by analogy to judges,
the members of the Public Prosecutions Service and other persons
familiar with the identity of a witness who has been examined
on the basis of the provisions of article 261.
A suspect may oppose the "deployment" of an anonymous witness
at the trial. The basic premise is that it is the trial judge
who ultimately decides whether the testimony of an anonymous witness
will be allowed in evidence (Explanatory Memorandum, p. 114).
To enable the judge to make an informed decision on this point,
he is given the power in article 338, paragraph 1, to examine
the witness in private. This power allows the trial judge to form
an opinion independently of whether the procedural and substantive
criteria of article 261 (regarding admissibility and reliability)
have been fulfilled.
If the trial judge takes the same view as the suspect and sees
no reason for the witness to remain anonymous, two courses of
action are possible under paragraph 2 of article 338. First, he
may direct that the witness will be heard anew by the examining
magistrate, but on this occasion not anonymously. However, the
public prosecutor can prevent this by withholding his consent.
If it is immediately clear that the public prosecutor will not
give consent or if the unreliability of the witness is of such
a kind that even an examination which is not anonymous will not
yield usable evidence, the second course of action becomes applicable.
In such cases the court may rule that the statement of the relevant
witness will not be allowed as evidence.
If the trial judge considers that the conditions of article 261
have been fulfilled, he maintains the anonymity of the witness.
The official report then continues to be part of the documents.
He may possibly decide that the witness should be examined again
by the examining magistrate on the basis of the questions to which
he (the trial judge) wishes to have an answer (art. 338, para.
3). Further investigation by the examining magistrate is also
possible with a view to rectification of any procedural errors
(art. 338, para. 4).
A separate provision has been made in accordance with article
261, paragraph 7, for anonymous witnesses who have been heard
not by the examining magistrate but by other officials (for example
the police). An investigation can be instituted on the application
of the public prosecutor into whether the objections to disclosure
of the identity of the witness are well founded. The judge may
examine the witness for this purpose in accordance with paragraph
1 of article 338. Before hearing the witness, he gives the suspect
or his counsel the opportunity to make observations (art. 339,
para. 1). Following the examination the judge decides whether
the witness is entitled to claim anonymity. If the decision is
negative, article 339, paragraph 2, applies: the witness is not
examined anonymously, provided that the public prosecutor gives
consent for this. If the judge considers that the claim to anonymity
is justified, he decides that the witness may be examined by the
examining magistrate as an anonymous witness and can supply a
list of questions which he wishes to have answered (art. 339,
para. 3). The purpose of article 364, paragraph 5, is to ensure
that where a trial is resumed after a stay a threatened witness
continues to receive the protection he has been promised.
Book 5, Title IV, Part 4 (Evidence) contains the final provision
governing anonymous witnesses. According to article 385, paragraph
2, the statement of an anonymous witness cannot be used as evidence
unless the witness has been examined in accordance with the provisions
of paragraph 4 of article 261. In addition, the statements of
anonymous witnesses can be used as evidence only if they are largely
corroborated by other evidence.
An injured party may join as a party to criminal proceedings at
first instance for a claim not exceeding 50,000 guilders. It is
also necessary that the claim should not have been submitted to
the civil courts and that it is of such a nature that it is suitable
for decision in the criminal proceedings (art. 374, para. 1).
A special feature of this arrangement is that under article 374,
paragraph 2, the injured party may also join proceedings in respect
of a criminal offence that is disposed of ad informandum.
The joinder occurs at the trial (see art. 374, para. 2) and may
not occur for the first time on appeal (art. 374, para. 4).
A victim may register as an injured party even during the preliminary
investigation (art. 206, para. 1). As a consequence, an injured
party who requires assistance and support as a result of the offence
will receive the requisite counselling (art. 206, para. 4). In
addition, injured parties can, under article 206, paragraph 3,
arrange to be informed by the public prosecutor of his decision
on whether or not to prosecute. If the case is prosecuted, the
public prosecutor keeps the injured party informed of developments
of importance to the latter in the further proceedings. If the
case is not prosecuted, he informs the injured party of his right
to complain about the non-prosecution (art. 209).
Even before the trial, namely from the time when the proceedings
are instituted, both the injured party and his lawyer may inspect
the case documents at the court registry on condition that this
does not hamper the progress of the case (art. 376, para. 1).
Under article 376, paragraph 4, the arrangements concerning the
inspection of case documents (arts. 51-54) apply by analogy.
In order to support its claim, the injured party or his lawyer
may submit documents (art. 377, para. 1), ask the presiding judge
for leave to introduce witnesses and experts (art. 377, para.
2) and also put questions to each witness and expert, provided
that they relate to the damage suffered or the amount of the damage
(art. 378, para. 1). Finally, the injured party may explain (or
have explained) his statement of claim after the public prosecutor
has made his closing speech. This is also possible under article
379 after the public prosecutor has made a second speech in accordance
with the article 353, paragraph 3. The judge rules on the claim
of the injured party at the same time as giving judgement in the
criminal case (art. 380, para. 1). The claim will be admissible
only if the case ends in a conviction (art. 380, para. 2).
The help to victims provided by the Public Prosecutions Service
and the police must satisfy the following criteria:
The victim must be dealt with correctly and where necessary on
a personal basis;
The victim should be supplied with information as quickly as possible,
and this information should also be clear and relevant;
The victim should be assisted in making maximum use of the right
to claim compensation in the course of the criminal proceedings;
this may be compensation for pecuniary and non-pecuniary damage.
The Code sets out to emphasize the judicial and hence impartial
role of the officials charged with administering justice in the
various stages of the criminal proceedings.
on whether or not to prosecute
If the public prosecutor considers on the basis of the police
investigation that the suspect must be prosecuted, he takes the
necessary action as quickly as possible (art. 207, para. 1). The
Code codifies the expediency principle: the public prosecutor
may decide not to prosecute for reasons connected with the public
interest. The public prosecutor may attach conditions to such
a decision and must take special account of the interests of the
injured party (see art. 207, para. 2). For example, the condition
may be an obligation to pay compensation or to repair what has
If there are considered to be grounds for prosecution, the public
prosecutor decides whether the case is suitable for extrajudicial
disposal (art. 208, para. 1). The article provides a statutory
basis for the power of the public prosecutor to enter into an
agreement (on a voluntary basis) with the suspect for the performance
of community service by the latter. In exchange, the public prosecutor
agrees not to press charges. This article does not in fact exclude
the possibility of another special condition being imposed on
the suspect in addition to the community service, for example
an obligation to indemnify the victim.
measures in cases of urgency
Where a criminal court convicts a suspect, it may impose a pecuniary
penalty as an extra guarantee of performance of the sentence.
If such a penalty is not paid, the court may, on the application
of the Public Prosecutions Service, order that the offender be
detained for such period as it may determine (art. 43, para. 7).
after application of pre-trial constraints
The compensation scheme applies to all pre-trial constraints.
Article 178, paragraph 1, refers to damage suffered as a result
of application of a constraint. Damage includes any injury not
consisting of pecuniary damage (art. 178, para. 3).
Since article 178, paragraph 1, refers to compensation for a person
who has suffered damage, such person may be not only the suspect
(or former suspect) but also a third party. The legislator is
thinking in this connection, for example, of a third party whose
home has been searched, a witness who has been wrongly detained
for refusing to answer questions, a victim who was originally
treated as a suspect and a person whose privacy has been violated
as a result of the tapping of a suspect's conversations. The arrangement
is intended to be exclusive, and it therefore precludes any recourse
to the civil courts (art. 182).
The arrangement distinguishes between damage suffered as a result
of the unlawful application of a pre-trial constraint and that
suffered as a result of its lawful application. In the former
case there is a right to compensation and in the latter case compensation
may be granted if this is reasonable and fair. Whether the application
of the constraint was lawful or unlawful is assessed at the time
when the constraint was applied (art. 187, para. 2).
Under article 178, paragraph 1, a right to compensation exists
when application of a constraint was unlawful (for example because
the manner of application was out of proportion to the offence
ORDINANCE in connection with the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (National
Ordinance implementing the Convention against Torture)
IN THE NAME OF THE QUEEN!
THE GOVERNOR OF ARUBA
necessary to make certain provisions under the criminal law in
connection with the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment adopted in New York
on 10 December 1984 (Treaty Series 1985, 69);
after hearing the Advisory Council and after consultation with
Parliament, adopted the following national ordinance:
a public official or other person in the service of the authorities,
acting in the course of his duties, assaults a person who has
been deprived of his liberty with a view to obtaining information
or a confession, punishing him, or causing him fear or coercing
him into doing or permitting something or out of contempt for
his claim to human dignity, such acts shall, if they are capable
of achieving their intended aim, be construed as torture and carry
a term of imprisonment not exceeding fifteen years.
causing a state of great fear or other form of serious mental
anguish shall be equated with assault.
the offence results in death, the perpetrator shall be sentenced
to life imprisonment or to a determinate sentence not exceeding
following persons shall be liable to the same sentences as those
specified for the offences referred to in the previous article:
a public official who, by one of the means referred to in article
49, paragraph 1 (b), of the Criminal Code of Aruba (AB 1991 No.
GT 50), incites the commission of the form of assault referred
to in article 1 or intentionally permits another person to commit
this form of assault;
a person who commits the form of assault referred to in article
1, if a public official has, by one of the means referred to in
article 49, paragraph 1 (b), of the Criminal Code of Aruba, incited
in the course of his duties the commission of the offence or has
intentionally permitted it.
44 and 45 of the Criminal Code of Aruba do not apply to the offences
referred to in articles 1 and 2.
offences made punishable in articles 1 and 2 are indictable offences.
criminal law of Aruba is applicable to everyone who commits one
of the indictable offences described in articles 1 and 2 of this
national ordinance outside Aruba.
national ordinance shall take effect on the day after that of
publication of the Official Bulletin of Aruba in which the announcement
national ordinance may be cited as the National Ordinance implementing
the Convention against Torture.
The Minister of Justice