VII.3 JUDICIARY STRUCTURE AND ORGANISATION This chapter assesses one of the two main institutions in Curaçao’s judiciary, that is, the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba (zittende magistratuur – Gemeenschappelijk Hof van Justitie). This chapter does not assess the Public Prosecutor’s Office. To be sure, the Constitution includes both the Joint Court of Justice and the Public Prosecutor’s Office as belonging to the judiciary,397 but they are completely independent from each other. However, the Constitution also states that the procurator general, as head of the Public Prosecutor’s Office, is responsible for the judicial police (justitiële politie) and underscores the procurator general’s leading role in the detection and prosecution of punishable acts.398 For the purposes of this assessment, this chapter therefore focuses on the Joint Court of Justice, and includes the assessment of the Public Prosecutor’s Office in the pillar ‘law enforcement agencies’. (See Chapter VII.5 Law Enforcement Agencies.) The Joint Court of Justice (referred to below as the Court of Justice) is, according to the ‘Trias Politica’ doctrine, one of the three powers of the government of Curaçao to be divided among
three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. This is also the case with regard to the Court of Justice of Curaçao. The status and position of the Court of Justice are anchored in the Constitution.399 The Court of Justice is responsible for the administration of justice in first instance and in appeal on the islands, and consists of a president, the other members, and their substitutes. The members of the Court of Justice deal, both in first instance and in appeal, with civil cases, criminal cases, and cases of administrative law, such as tax law.400 The members of the Court who are dealing with cases in first instance and those who are dealing with cases in appeal are exercising their jobs completely independently from each other. The Court of Justice is a legal entity constituted and governed by public law. Its tasks and authorities are laid down in the Kingdom Act Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba.401 The Court’s executive board (Bestuur) has five members including the president; its operational management is supervised by a supervisory board (Beheerraad). The supervisory board consists of four members and functions as a liaison between the Court of Justice and the governments of the four countries.402 The countries are represented by the four ministers of justice. The Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba is considered to take the jurisprudence of the Supreme Court of the Netherlands (Hoge Raad der Nederlanden) into account.403 The Supreme Court of the Netherlands is the court of cassation for the Caribbean parts of the Kingdom and is located in The Hague, the Netherlands.404 As the highest court in the fields of civil, criminal and tax law, the Supreme Court is responsible for hearing appeals 397
Constitution of Curaçao (Staatsregeling van Curaçao), Official Curaçao Gazette 2010, No.86, Article 105. 398 Ibid. Article 107. 399 Ibid, Chapter 7. 400 See www.gemhofvanjustitie.org [accessed 17 January 2013]. 401 State Gazette Kingdom of the Netherlands, 2010, No.335 (below: Kingdom Act Joint Court of Justice). 402 See www.gemhofvanjustitie.org [accessed 17 January 2013]. 403 Oberon Nauta, Good Governance in ‘The West’. Institutional and Social Constraints of Good Governance in the Caribbean Parts of the Dutch Kingdom (Goed bestuur in de West, Institutionele en maatschappelijke beperkingen voor goed bestuur in de Caribische rijksdelen) (Oisterwijk: Uitgeverij BOXPress 2011, 2011) p.46. 404 State Gazette Kingdom of the Netherlands, 2010, No.388, Kingdom Act Cassation proceedings .(Cassatie procedures) for Aruba, Curaçao, Sint Maarten and for Bonaire, Sint Eustatius and Saba. 72
NATIONAL INTEGRITY SYSTEM ASSESSMENT CURAÇAO