SINT MAARTEN (PHILIPSBURG) - Within the scope of a general review, the second sub-inspection of five reports about the Public Prosecutor’s Office and the Crime Prevention Fund in Sint Maarten by the Law Enforcement Council (hereafter: the Council) has found that the vast majority of recommendations were not (fully) implemented.
The Council is carrying out sub-inspections to monitor the status of the execution of recommendations listed in the 43 inspection reports that it has drafted from 2012 up to 2018. The report on the first sub-inspection was published earlier this year, and the Council published the report on the second sub-inspection on October 4th.
The second sub-inspection addresses the extent to which the recommendations made in five earlier reports were implemented: Crime Prevention Fund, Review of investigative and prosecutorial policies of the Public Prosecutor’s Office, Review Enforcement of fines, damages and dispossessions, Review of the Public Prosecutor’s Office in incident-based investigation, and Cooperation between the Public Prosecutor’s Offices.
In general, reports of the Council reveal a persistent shortcoming: the lack of follow-up of the recommendations presented by the Council. The second sub-inspection showed that of a total of 29 recommendations, 6 were fully implemented, 9 were partially addressed, and 14 were not implemented. Therefore, the Council’s recommendation to the Minister of Justice is to implement the 23 recommendations which are not yet (fully) addressed and to make the necessary financial resources available as soon as possible.
The sub-inspection also confirmed the commitment of the justice organizations to comply with the Council’s recommendations. The efforts undertaken by the various organizations are proof of this. In practice however, the implementation of the Council's recommendations often does not take place, usually due to a lack of fundamental prerequisites, such as a strategic vision, proactive management, insufficient budget, shortage of capacity and a lack of policy.
In its overall analysis, the Council pointed out that the capacity of organizations to work consistently on law enforcement requires further growth. Local governmental-strategic prioritization in the law enforcement chain, based on an integrated vision, is required.
Integration is important for focusing resources and creating synergy through collective efforts. All reviews of the Council also showed the need for strategic principles. The Minister of Justice, the Ministry of Justice and the Public Prosecutor's Office (Attorney General) play essential roles in this process.
For example, the Crime Prevention Fund requires an annual policy plan, and a determination of strategic choices for investigative and prosecutorial policies which are important for effectiveness. Strategic prioritization of issues also proved to be critical in the inspections related to the enforcement of sentences and incident-oriented investigations.
Furthermore, some reviews, such as the one on the enforcement of fines, damages and dispossessions and the one on the Crime Prevention Fund, indicate that legislation and regulations require greater compliance during work performance. “Risks have been identified in terms of integrity and for the credibility of law enforcement in general because laws and regulations are not always adequately obeyed,” stated the Council.
Crime Prevention Fund
As part of the second sub-inspection, the Council furthermore reviewed its inspection reports and the follow-up on the recommendations about the Crime Prevention Fund. Earlier reports showed that there was a need to establish a steering committee to advise on the fund and it was found that the legal obligations stipulated in the National Ordinance Crime Prevention Fund were not being implemented consistently, resulting in a recommendation. The Council at the time made 5 more recommendations, amongst other things to develop a policy for the Fund, to reduce the risks of improper use of the Fund and to raise awareness.
The current assessment reveals that the Fund's legal framework has not changed, nor has it been further clarified since the Council’s last investigation. Whereas the law states that the Fund should be used for the financing of projects to combat crime, the Council’s review found that in practice the terminology used in the law is interpretated ambiguously. “Because of this, in practice there is still a lack of clarity about the procedures relating to requests and approval processes, and how to give content to the Fund’s processes and procedures.”
According to the Council, very little progress is evident in terms of compliance with legal obligations when using the Crime Prevention Fund. “The daily and long-term management of the Fund are therefore compromised. The Fund's management and the Steering Committee for Crime Prevention are not getting off the ground; a policy, policy plan and associated budget or related preparation are not in place; the bookkeeping and registration is by no means in order; and the Fund is not receiving publicity.”
Positive is that the Council observed that there is greater oversight and control over the Fund's assets and expenditures. However, these are not supported by formal or approved policies, processes and objectives from the persons legally responsible for the Fund. If these matters are sorted, this would give a greater insight and better clarity for all those involved.
Investigative and prosecutorial policies
This is the second review of the recommendations made about the investigative and prosecutorial policies of the Public Prosecutors' Office and it was concluded that the majority of the recommendations still have to be addressed which mostly concern the Public Prosecutors’ Office as well as the National Detectives agency.
Based on this review, it appears that an examination was not conducted by the minister / the ministry to determine how the Public Prosecutor's Office, the KPSM and the National Detectives Agency can reinforce the effectiveness of law enforcement. The Minister of Justice and the Attorney General are both involved in the (strategic) management of effective law enforcement.
The Council has identified several specific topics that will certainly have to be addressed, such as plans, cooperation agreements, quality, information (sharing), capacity, education and training, expertise, resources, and ICT. In the opinion of the Council, the Public Prosecutor will have a stronger position within the chain and will be better able to manage it, if continuity of its in-house capacity is present. A personnel policy on a central level is still lacking, however a policy is being prepped and local employment is being worked on.
According to the Council, the Public Prosecutor’s Office lacks an overall overview on cases, partly due to the internal organization of the Public Prosecutor's processes and the inadequate PRIEM system. “Meeting reasonable deadlines also requires good interaction between partners in the investigation and adjudication phase.
There are delays and stagnation in the processing of cases within the investigation as well as in making timely decisions within the context of the investigation due to the lack of manpower. In selected areas of investigation, such as robbery and severe crimes, the situation is generally a bit better, but it remains vulnerable”, the Council stated.
The same applies to the prompt processing of cases in court. “Particularly for the major cases, it is important to have judges on the island. The absence of optimal staffing in the judicial organization on Sint Maarten creates bottlenecks in the quality and timeliness (processing times) of hearings. COVID-19 has made this process even more complicated, causing longer waiting times before cases are heard”.
The Public Prosecutor’s Office indicated that online hearings have not been effective in improving the quality of cases, but that smaller cases proceeded better.
In terms of communication and the establishment of new policies, the Council recognized the positive developments and said it looked forward to their implementation.
Fines, damages and dispossessions
In its review of the enforcement of fines, damages and dispossessions, the Council looked at the status of the implementation of four recommendations in earlier reports regarding the modalities: compensation (to victims), fines (general), traffic fines and dispossessions. “The Council believes that a considerable effort still needs to be made with the organization and administration of enforcement to ensure an effective and efficient process. This is particularly the case for the recommendations regarding the organization of the accounting system and the use of the legal mechanisms (authorities). The Public Prosecutor’s Office is also aware of this”. The PRIEM system is not functioning optimally.
As for the method of compensation for damages, victims continue to experience excessive disadvantage. “They are not sufficiently assisted in filing claims for damages. If the judge grants a claim, there is little prospect of payment. This is not only due to the poor administration, but also because of the often-poor financial position of the defendant (offender) and the financial position of the Sint Maarten Government. In major cases, the support for victims is better”. The Public Prosecutor's Office has created victim policies to address the needs of the victim.
Regarding the method of dispossessions or confiscations, it was determined that data collection is very poor. According to the Public Prosecutor's Office, statistics are recorded, but not consistently. The financial data relating to confiscations is also absent. A point of concern is not having enforcement projects continue due to a lack of preconditions, but the Council also recognizes a few positive developments with the handling of 6-hour cases and more awareness about the position of victims amongst other things.
Incident based investigations
The Council also reviewed the role of the Prosecutor’s Office in incident-based investigations for the second time. The current situation in 2021 is that of the six recommendations, two have been addressed (feedback and communicating priority 1 cases) and four recommendations have still only been partially met (evaluation of approach, compliance with agreements, provision of information and provision of insight).
A lack of comprehensive oversight of cases, the flawed PRIEM system and the police capacity that is continually under pressure also play a role with regards to this topic and the follow up of the recommendations. Also, positive developments are being worked on with regards to victims, training and sharing of information.
Public Prosecutor’s Offices cooperation
The Council also reviewed an earlier inspection on the topic of cooperation between the Public Prosecutor’s Offices in the Dutch Caribbean. The intention was to examine the status of compliance of earlier recommendations, but during the recent review, the Prosecutor's Office indicated that this topic was no longer being pursued.
Nevertheless, the Council advised the Attorney Generals to again discuss if the cooperation between the Public Prosecutor's Offices should be revisited on the continued value of having subject matter specializations and, at least, the required approach. If it is decided to use subject matter specializations, the recommendations already formulated by the Council remain relevant.
Overall, the Council was positive about the achievements of the law enforcement sector. “The actions of justice-stakeholders are not always effective or efficient, but small successes have been achieved and the Council recognizes the perseverance of stakeholders. Because of this attitude, the Council anticipates future opportunities”.
The Council therefore stresses the paramount importance of a strategic plan and the desired objectives that can be achieved with it. The Council announced that it will initiate periodic monitoring of progress on the follow up of the recommendations in 2021.