Dutch Law for Dummies (Joran Faces Max of 10 Years?!)

Observations of a Misfit ^ | 7/02/05

[freespirited]

In this entry, I will attempt to explain some of the relevant law from the Dutch criminal justice system that may shed some light on the process undergoing in Aruba. Aruban law is almost identical to Dutch law with a few important exceptions that may come into play if Joren Van Der Sloot and the Kalpoe brothers are formally charged with felony level crimes on Monday, July 4.

To apply Aruban law to what we have witnessed in the case of Natalee Holloway’s disappearance and the subsequent arrest, release, or continued incarceration of seven suspects so far, it may be useful to take the events chronologically. Unfortunately, Aruban law does not explain why the police (and prosecutors) made some of the decisions they have in the investigation, or why they waited so long to detain the three men last seen with Natalee. However, by law, they don’t have to explain their actions to the media or any other third party. Unlike in the US, where most affidavits, search warrants, and other court proceedings eventually become public record (but not always), in Aruba, no such disclosure is expected.

Currently, the case is in the “pretrial” or “accusatory” phase that focuses on the collection of evidence including wiretaps, searches, interrogations, and possible detention of the suspect(s). The prosecutors have more power in Aruba than they do in the US. They don’t need a court order for wiretaps, they don’t usually need search warrants, and they don’t need a judge’s approval to take a case to trial. Suspects are notified through their attorneys of any developments, but this could be limited by the prosecutors’ discretion. There is no mutual discovery like we saw in California.

As we have learned in the last few weeks, suspects can be detained for six hours and then must be arrested or released. A suspect is usually not arrested unless the crime for which they are accused carries a minimum sentence of four years in prison. Otherwise, they are released with a summons to return to court at a later date. If the potential charge is more serious, the prosecutor can extend the arrest for another two days when the suspect must appear before an “examining judge” who determines if further detention is warranted. After 10 days, most suspects are moved from the jail to a prison facility.

Similarly, “pretrial” detention is unlikely if the chances are small that the accused will actually serve jail time for his offense. The accused can even be released from jail if his detention has exceeded the “probable sentence of incarceration.” Thus, the Dutch (and Arubians) don’t use much jail space for petty criminals. Yet, there is no bail or plea-bargaining, and the accused has nothing to gain by confessing.

In some cases, detention can be ordered if the suspect is a flight risk, a danger to public safety, is likely to commit another serious crime while awaiting trial, or could destroy evidence or tamper with witnesses. This law would have justified detaining Van Der Sloot and the Kalpoe brothers much sooner, but for whatever reason was not enforced.

Since two of the three suspects are juveniles (under age 18), it is possible that they will be subject to juvenile criminal law, which is the most lenient and least punitive of any system on earth. Juveniles who are convicted of serious felonies (like murder, kidnapping and rape), will serve time in a “juvenile hall” for half the time of an adult sentence for a maximum of 10 years. So, if Van Der Sloot is convicted of murder, he will be free by the time he is 27 or 28 years old, even if he is sentenced to “life.” In the Netherlands, if he were tried as an adult, his life sentence would be only 20 years plus five (for a total of 25 years). After serving the maximum sentence, some of the most violent inmates may be transferred to a psychiatric institution indefinitely. It is unclear whether this is the same in Aruba.

Chances are, if Natalee Holloway’s parents were not camped out on the island and there were no FBI or other American presence, the prosecutors may have settled this case out of court (if they arrested the boys at all), and used the option of “conditional waiver.” The conditional waiver allows the prosecutors to close the case by assigning a hefty fine or coming to an agreement about a (usually suspended) prison sentence. Yes, you can buy your way out of jail in Aruba rather easily. Over 65% of criminal cases are settled this way, according to statistics published by the US Department of Justice.

In the rare instance of a confession (since they carry no strategic advantage to the accused), it must be entirely voluntary and not coerced through force, drugs, threats, hypnosis, or promises. Surprisingly enough, a suspect’s confession is excluded from his trial! Presumably, he must plead guilty, but I have not found any documentation to explain this peculiar issue.

Similar to our system, suspects have the right to remain silent, but they don’t have the right to an attorney for the first six hours of their interrogation. After that, if they are arrested for a possible felony charge, they are provided with an attorney. Defendants who can afford their own counsel may enlist one at this time.

It is quite possible that, behind the scenes, Paulus Van Der Sloot is attempting to file an appeal against the writ of summons. As long as the case has not gone to trial, he can ask that another court declare the case closed. If the lawyers for Joren and the Kalpoe brothers can negotiate a “transaction” with the prosecutor (see above), it is possible that the boys can never be prosecuted for murder if Natalee’s body is discovered in the future. Astonishing, no?

In the event that the case goes to trial, assuming the prosecutors collect enough evidence, the boys will be tried by one to three judges. There is no jury, and the judges ask all the questions. In Aruba, a defense attorney can cross-examine witnesses, unlike in the Netherlands. (We should send Mark Geragos to Amsterdam.)

Victims or the families of victims have few rights in the Aruban justice system. Their role is limited to witness or informer during the investigation and pretrial stage. When the victim is not a citizen, she essentially has no rights at all. It may be possible for Natalee’s family to have an Aruban attorney file a written complaint with the court of appeal if the case is dismissed. I’m not sure how that would play out, but they probably have been advised of this option and the fact that court-ordered prosecutions are rare.

Natalee’s family will not be heard at trial or permitted to appeal the decision. They can, however, sue the Van Der Sloots through a private, civil attorney. The defendants have the right to attend the trial but are not required to be there. They do not have to take the stand or be questioned under oath. There are no separate sentencing hearings and (obviously) no victim impact statements.

This information is not encouraging. We cannot expect to hear anything from the prosecutors that they are not voluntarily disclosing, and we can only hope that there is enough evidence to remand Joren Van Der Sloot and the Kalpoe brothers to trial. Monday’s event will resemble a preliminary hearing. Little or none of what transpires in the courtroom will be made public, except the disposition. If Van Der Sloot and one or both of the Kalpoes remain in prison, we can at least conclude, based on our new knowledge of Dutch/Aruban law, that there is a substantive case against them.

[freespirited]

Since two of the three suspects are juveniles (under age 18), it is possible that they will be subject to juvenile criminal law, which is the most lenient and least punitive of any system on earth.

I'm shocked.

[commonasdirt]

I am shocked.....but considering its the Netherlands not a bit surprised.