Dear Editor,
When on Monday July 25, 2016, the Prosecutor’s Office withdrew its appeal filed against the alleged “straw man” in the so-called Buncamper forgery case, and its appeal against the second suspect in this case, a smell of injustice started to cloud the clear blue sky. Something is seemingly rotten in the rule of law of Country St. Maarten.
On April 7, 2016, the Court of First Instance had acquitted Mr. T. O. W. of all charges, and sentenced Mr. I. A. H. to a suspended prison sentence of 3 months, on 2 years’ probation, with 120 hours of community service. Mr. Claudius A. Buncamper and Mrs. Maria J. Buncamper-Molanus were both sentenced to suspended prison sentences of 12 months, on 3 years’ probation with 240 hours of community service, and Notary Mr. F. E. G. was sentenced to 240 hours of community service.
In April 2016, the Prosecutor’s Office filed for appeal against all verdicts of the Court in First Instance. After consultation within the Prosecutor’s Office, it was decided to withdraw the appeals filed against Mr. T. O. W. and subsequently Mr. I. A. H., thereby making their verdicts to become irrevocable. However, the appeal cases against the Buncamper’s and Notary Mr. F. E. G. will continue.
The law that states that people pay taxes on the sale of a parcel of land with or without a constructed building, be it judicial or economical, doesn’t exist in St. Maarten. It does in the Netherlands but not here, so it’s going to be strange to see them convicted on such according to the various legal scholars and tax experts I spoke to.
What is clearly remarkable in these cases is the fact that the Judge does not see any so-called outside legal debt exclusion ground: No punishment without blame. After all, an official Notary recommended the Buncampers, to act according to his so-called ‘Belehrungspflicht’: the function of a Notary within the legal transactions brings with it, that he is professionally kept to prevent, to the best of his abilities, the abuse of legal ignorance and factual prevalence.
The Judge is apparently absolutely not interested in the ‘Belehrungspflicht’ of the Notary Mr. F. E. G. and persists in the Buncampers’ participation in an illegal construction. I would dare say that because he could not find the burden of proof against the notary that he falsified a deed, he decided to go with the alleged illegal construction and hold the notary legally accountable for such and thus punish him for that behaviour.
Furthermore, in accordance with Article 6, paragraph 2 of the National ordinance on the notaries: “a Notary must refuse his services, in the event that to his reasonable belief, the activity that is expected from him, leads to breaches of the law, the public order or the moral order, or his participation is required by acts which seemingly have an illegal purpose or consequence.” No reference is made whatsoever to this stipulation.
The appeal of the Buncampers, against the recent criminal sentences, therefore surely has a huge chance of succeeding, one would think and hope.
Imposing a sentence of 240 hours of community service, to two renowned members of community service organizations, seems farfetched and out of order. It is not said that these people are immune to criminal conviction, but after the acquittal of Mr. T. O. W. of all charges, the acquittal of the charges of money-laundering and participating in a criminal organization, the continuation of a criminal case against the Buncampers smacks of legal hypocrisy.
The principles of due process should have urged the Public Prosecutor to drop all criminal charges against the involved suspects, after they admitted their serious mistake (the then case Prosecutor took pictures with a personal cell phone of various documents that were between the lawyer and his clients and lots of other papers they knew full well they could not confiscate due to their secretive/confidential nature as process documents; these pictures were then sent via email throughout the Prosecutor’s Office), and withdrew the first case Prosecutor.
Continuing the criminal process with another case Prosecutor, at least shows a somehow unprofessional attitude, or even a personal grudge on the side of the Public Prosecutor against the Buncampers. Portraying that the Prosecutor’s Office came clean is the furthest from the truth as they only came forward when the Buncampers’ lawyer filed a formal complaint against the prosecutor at the judge of instruction. It is only then that she states that she realized what she did, but yet it reportedly took her 6 days to, so call, destroy the pictures she took from her computer and I-Cloud and write a report to her superiors.
In the meantime, she reportedly opted to email the pictures to the present prosecutor and the chief prosecutor. It’s like asking a new rat to mind the cheese and hope it doesn’t eat it.
The Prosecutor’s Office wants the Buncampers and the lawyers to believe that the present prosecutor didn’t peek at the illegally taken pictures and documents; something I unfortunately cannot believe nor trust as integrity at the Prosecutor’s Office has in St. Maarten shown to have a different meaning than what we should expect. Now that the verdict of the other suspect in this case Mr. I.A. H. is irrevocable, it means that nobody destroyed any evidence and using that excuse to raid the home of the Buncampers clearly shows the manner in which the Prosecutor’s Office operates.
Perhaps the harshness of the conviction towards the Buncampers was because they dared to challenge the Prosecutor’s Office and the entire justice system, showing that they were not afraid of a fair legal battle. The fact that the Judge blames Maria that as a politician she should have given the right example, turns her criminal process into a political process, whether the Judge had intended it or not: a Judge cannot be that naive, a sentence stigmatizes the culprits, if not directly then indirectly.
So, the term judicial persecution has now been established beyond a reasonable doubt. You would think that the courts would have stuck to judicial prosecution.
It should be clear enough, that the Judges are still lacking a certain sensitivity of how the St. Maarten society functions, they are unfamiliar with the norms of our society and seemingly also not fully adapted to the understanding of the St. Maarten Law as embedded in the Civil Code of St. Maarten.
I would like to suggest allowing these fine jurists first to familiarize themselves with the laws of the country St. Maarten, because although many laws of the country St. Maarten are derived from the laws of the Netherlands, the Dutch laws cannot blindly be applied in country St. Maarten. In particular the law on taxation which played a major role in this case is not the same as the one in the Netherlands. St. Maarten as a country has its own laws and these laws must not only be adhered to by society but, these are the laws that the judges must apply. In St. Maarten we don’t have capital gains laws (no personal taxes on the sale of land).
How this saga will end is surely a good test case for how the society of St. Maarten resolves its impediments. The society of The Netherlands honestly cannot be compared with the society of St. Maarten; although there is a lot of common history, at the same time there are too many demographic differences. Let’s not lose our belief in justice, and let us work together to realize that at the end, justice always will prevail no matter who the persons are. There’s no room in St. Maarten for class justice.
Lastly, if the Prosecutor investigates public notaries for the type of so-called “criminal constructions” that the Buncampers have been accused of, they would find they would have to drag half the population before the judge as arrangements involving economic rights are signed, sealed and delivered every day at these notaries. Come on now!
A Buncamper Supporter
