Ensuring Efficiency and Effectiveness in the Criminal Justice System (The Netherlands Antilles and Aruba (NAA) and Saint Lucia)

• Author: Adrian Saunders and Jacob Wit
• Pages: 526-542

526

CRIME, DELINQUENCY AND JUSTICE

Ensuring

Efficiency and

Effectiveness in

the Criminal

Justice System

(The Netherlands

Antilles and

Aruba (NAA) and

Saint Lucia)

Adrian Saunders and Jacob Wit

Twenty-Three

In recent times, some common law

countries, in an effort to ensure greater

efficiency and effectiveness in the

administration of justice, have been

modifying traditional procedural rules that

underpin an adversarial system and adopting

rules that favour greater use of methods

traditionally employed in civil law countries

including judge-driven techniques. Changes

to the substantive law in order to beef up

prosecutorial services and sharpen

investigative tools are also being considered.

A good starting point in assessing the utility

of this approach is to examine just how

justice is delivered in civil law systems which

are based on inquisitorial and judge-driven

methods and have extensive experience in

these measures.

The Netherlands Antilles and Aruba

(NAA) have a civil law system. The law is

codified and hence, every judicial decision

has to be based ultimately on the written

law (legislation). Judges, both at the pre-trial

and the trial stage are actively involved in

and control and direct the judicial process.

A criminal trial could be characterised as a

public enquiry presided over by the judge,

who also functions as the main enquirer or

inquisitor. He/she is the judge of the facts,

decides on the law and is the one responsible

for sentencing. There is no jury and there is

no desire whatsoever to have one in these

countries.

Most of the judges and prosecutors are

so-called ‘career magistrates’. They receive

the same training, consisting of courses,

seminars and on the job training over a

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ENSURING EFFICIENCY AND EFFECTIVENESS IN THE CRIMINAL JUSTICE SYSTEM

period of six–eight years. They also receive the same salary and consequently,

they have the same status within the public service, although they play different

and separate roles. It is not unusual that a prosecutor might become a judge or for

judges to become prosecutors but the latter occurs less frequently.

The prosecutor is the ‘dominus litis’ (the master) of the criminal investigations

and pre-trial proceedings. The prosecutor can give orders and instructions to the

police. Warrants cannot be obtained by the police directly. All requests for warrants

are made by the prosecutor, who has a kind of intermediary function. Although

the police can in certain cases arrest suspects on their own accord, in other cases

they need an order from the prosecutor. The police can hold a suspect for up to

six hours. After that short period, custody can be extended up to two days by a

senior police officer who has been sworn in as an assistant prosecutor. These two

days may be extended up to a further eight days by the prosecutor himself, but in

that case the suspect has to be brought before an examining judge (or judge of

instruction) on the third day of his or her custody. If this does not happen, the

suspect must be released, irrespective of what he might have done or be accused

of. Further extensions of pre-trial detention are possible, but cannot be given by

the prosecutor himself. Extensions of pre-trial detentions have to be requested by

the prosecutor and can be allowed by the examining judge on certain strict legal

grounds. Even when the examining judge has allowed such an extension, the

prosecutor does not have to make use of it. He can end the custody at any moment

he thinks fit.

Although the prosecutor is considered to be a ‘magistrate’ or ‘minister of

justice,’ his actions are monitored. This is done by the examining judge, the judge

who deals with pre-trial detention, with decisions on requests of accused persons

to be released from custody, conditionally or unconditionally (though virtually

never on bail, which is considered to be an inappropriate practice). The examining

judge can give warrants for searches in houses, for wire-tapping, for taking human

material (tissue or hair for example) from the suspect against his will for the

purpose of Deoxyribonucleic Acid (DNA) investigation, etc. During house searches,

other than urgent ones, the examining judge even supervises searches by the

police, in the presence of a prosecutor, and may order seizure of the objects the

police need for their investigation. The judge may decide to honour a request of

either the prosecutor or the defence lawyers to entertain a limited preliminary

enquiry in which both the suspect and witnesses can be examined.

These examinations are done by the judge himself and take place in his

chambers in the presence of the prosecutor and the defence lawyers who are

both allowed to ask additional questions. During the examination of the witnesses,

the suspect himself is usually not present. At the request of one of the parties, the

examining judge could also order and supervise a reconstruction of the alleged

crime at the locus delicti. Not all the witnesses are heard by the examining judge,

only those whose testimony is disputed and at the same time crucial for the

outcome of the case.