#50: A human rights violation: from bad to worse?

In Lawlunch #34 we already wrote on the October 2018 decision of the European Court of Human Rights (ECtHR), in which a breach of the European Convention on Human Rights (ECHR) by the Netherlands in connection with the detention conditions on St. Maarten was established. The case concerned a suspect who was detained in a cell at the police station in Philipsburg. These cells are not suitable for pretrial detention. Nevertheless, this suspect was kept there – much – longer than the 10 days that would be acceptable according to human rights. The reason was that the suspect could not be transferred to the Pointe Blanche prison on Sint Maarten, because security could not be guaranteed there. The ECtHR held that Article 3 of the ECHR had been violated: the prohibition of torture and inhuman or degrading treatment or punishment. It appears that not much has changed since then.

Recently Mr. George asked the ECtHR for help as well. He had been remanded in custody in the same cells at the police station in Philipsburg as was the case in the October 2018 decision of the ECtHR. The reason? The Pointe Blanche prison on the island was too full. The ECtHR imposed a provisional measure on 17 December 2019 on the Netherlands, stating that measures should be taken with respect to the situation of Mr. George. The ECtHR can take such a provisional measure based on Rule 39. In the decision of 4 February 2005 in the case of Mamatkulov and Askarov vs Turkey the ECtHR decided that such a measure is legally binding.

The lawyer of Mr. George – Sjamira Roseburg – has requested Mr. George’s immediate release under these circumstances. This request was not successful. Mr. George was transferred to the Pointe Blanche prison instead. Exactly: to the prison which was too full. In view of the fact that measures were taken concerning Mr. George’s situation, the ECtHR terminated the interim measure. But does this ‘measure’ in practice serve the human rights of Mr. George – and other detainees?

The Public Prosecutor’s Office on St. Maarten is of the opinion that the cells in the police station in Philipsburg have been improved. In addition, the earlier decision and the measure of the ECtHR does not apply to the Point Blanche prison. In the media, the Public Prosecutor’s Office states:

“This is whether the suspect can be released (whether or not by suspending pretrial detention), or whether space can be created in the Pointe Blanche prison by terminating or suspending the pre-trial detention of a suspect who has been detained in the Pointe Blanche prison or by recommending a convict for early release,” said the Prosecutor’s Office. According to the Prosecutor’s Office, early release of convicted persons is an exclusive decision of the Justice Minister. “If both options are not possible, the Chief Public Prosecutor of St. Maarten will consider whether the detention in the Philipsburg cells can continue.”

Meanwhile, this issue is also on the agenda in the Netherlands and parliamentary questions are being asked to the responsible Minister. He responds: “Sint Maarten has informed me that as a result of the present case, the Public Prosecutor’s Office Sint Maarten has adapted its working method. If a detainee cannot be transferred after 10 days, the Chief Public Prosecutor will assess the seriousness of suspicion and personal circumstances in order to reach a decision in which cases pre-trial detention can be suspended”.

It appears from the answers that the Minister is seriously concerned about the situation of detention in St. Maarten. He regularly consults with the Ministry of Justice and the Prime Minister of St. Maarten on this matter. The Netherlands has also made container cells available for the capacity problem in Point Blanche and has offered St. Maarten that the State Property Company offers support with regard to building improvements and contract management in order to be able to put these cells into use as soon as possible.

But why Mr. George has been transferred to the Pointe Blanche prison instead of being released remains unclear. How and on what grounds the interests at stake are being balanced is not explained. Was the situation of Mr. George also discussed in the consultations between the Ministers? In any case, a sufficient explanation did not reach Mr. George and his attorney. It seems that Mr. George’s situation is going from bad to worse while the Netherlands and St. Maarten are watching. In our opinion the ECtHR should take measures on this situation as well.

Do you have any questions about this subject, are you confronted with a related issue and would you like to discuss this with us? Please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

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