PHILIPSBURG:--- Former Minister of Labor, Health and Social Affairs Maria Buncamper- Molanus and her husband Claudius Buncamper urged the court of First Instance on Wednesday to throw out the entire case the Prosecutor Office brought against them after four years.
The judge is expected to give a ruling next week Wednesday. On the other hand the prosecutor’s office has decided to drop the second charge of ‘money laundering’ against the Buncamper’s because of improper procedures by the former prosecutor that was handling the case. Prosecutor Gonda van der Wulp who took her cellular phone and took photographs of a desk that had letters and other documents that the prosecutor and their search team could not touch during the house search some months ago. The prosecutor office admitted that they have decided to remove Prosecutor Gonda van der Wulp from the case after learning of her actions on the day of the search. SMN News reported earlier that the attorney representing the Buncamper’s wrote the prosecutor’s office highlighting the misconduct of Prosecutor Gonda Van der Wulp. On Wednesday Prosecutor Dounia Bennamar who once worked on St. Maarten travelled from Curacao to represent St. Maarten’s Prosecutor’s Office.
The Buncamper’s case finally went to court after the Buncamper’s took the Prosecutor’s Office to court last year after waiting on the Prosecutor’s Office to either say whether or not they will be charged after it was made known through various media articles that the Buncamper’s had sold the economic rights to a company called Eco-Green. The Buncamper’s sold the economic rights for some three million dollars.
At first the prosecutor’s office charged the Buncamper’s with tax evasion, claiming that they did not declare the sale of the economic rights when making their tax declarations, they then changed their strategy when they realized that they had made a mistake, later they said the company Eco- Green did not declare its taxes based on the sale of the economic rights of a parcel of lease land on the Pondfill.
The Buncamper’s through their attorney challenged the Prosecutor’s Office on equal treatment since other methods were used against other companies and or persons who did not make proper tax declaration. Attorney at Law Jairo Bloem told the court that it seems as though the prosecutor’s office have different rules when it comes to politicians since they (prosecutor’s office) went as far as falsifying documents in the Buncamper’s case. Another point that the Buncamper’s highlighted and basically smashed the legitimacy of the RST on St. Maarten whom they said must be appointed but so far there is no proof that the RST working on St. Maarten were appointed since they are unable to obtain documents from the Ministry of Justice to show that the RST detectives that investigated their case were appointed based on the Police Law of Country St. Maarten.
The Buncamper’s told the court that in their view the Prosecutor’s Office and RST acted dubious, unethical and even illegal when investigating the case in order to mislead the court.
Wednesday’s hearing is the fourth so-called Management Hearing that was handled in the Buncamper’s versus the Public Prosecutors Office. Previously, management hearings were conducted on January 7th, February 26th and June 10th, 2015. The material handling of the case were delayed on Wednesday because one of the defendants, namely the ex-notary Mr. F. Gijsbertha, could not attend the hearing for personal reasons.
During the hearing attorney at law Bloem who represented the Buncampers first asked the court to hear three witnesses, namely; the previous case Public Prosecutor, Mrs. Gonda Van der Wulp, police officer Mr. F. Machielsen and Mr. Claudius Anthony Buncamper, junior. The reasons given for hearing the previous case public prosecutor Mrs. Van der Wulp, who was removed by the chief Public Prosecutor Mr. Ton Maan from the case for committing serious violations, is to be able to question her decision to take pictures of confidential information during the house search of the Buncampers. Bloem pointed out that a written report made under oath by Mrs. Van der Wulp furthermore contains factual representations that are simply incorrect, factually impossible and contradictory to other reports of officials, also made under oath.
The hearing of Mr. Machielsen was necessary because his written statements are contradicted by statements of several witnesses. Mr. Claudius A. Buncamper junior witnessed the house search by the removed Public Prosecutor, Mrs. Van der Wulp and was able to render testimony pertaining to what exactly happened.
The justice Lemaire who handled the hearing through videoconference from courthouse in Aruba, stated that he wanted to hear the possible preliminary defense of the defendant parties, before taking a decision on whether or not witnesses would be heard.
Newly appointed Public Prosecutor Mrs.Dounia Benammar proceeded with explaining the Court that pictures were taken by only the previous Public Prosecutor, Mrs. Van der Wulp, during a house search at the residence of the Buncampers, without in short permission of the Judge of Instruction. This second house search was deemed urgently necessary by the removed Public Prosecutor Mrs. Van der Wulp, after having conducted a house search by the witness Mr. F. Fleming, previously. Bennamar explained that by law taking pictures is considered seizing goods. Pictures were taken from confidential letters between the Buncampers and their attorney. This is illegal and absolutely not sanctioned by the Public Prosecutors Office. The Public Prosecutors Office values integrity and therefore decided that it should be declared inadmissible in its second indictment against the Buncamper’s, for what it considers a serious infringement that tarnishes the integrity with which it must conduct itself.
Benammar stated that although it could be argued that it is doubtful that Buncamper’s suffered any damage because of the violation, the violation in question was severe enough to justify the non-admissibility of the Public Prosecutors Office in its second indictment against Buncampe’s. This violation in her opinion however does not affect the first indictment and also not the cases against the other defendants.
Benammar proceeded by explaining that the pictures taken by the removed Public Prosecutor Mrs. Van der Wulp were subsequently sent by Mrs. Van der Wulp to both the Chief Public Prosecutor Mr. Tom Maan and to Benammar herself, as the Coordinating or Researching Public Prosecutor in that case. Although she received the email with the attachments, she did not open the attachments, at least not all of them. She started opening some attachment and read that a letter was addressed to Bloem by stating “Jairo” or “Beste Jairo”. According to Benammar, she then stopped reading the attachments. Bennamar also stated that she did not have any more communication with the removed Public Prosecutor Mrs. Van der Wulp.
The attorney Hatzmann who represented the defendant Havertong put forward a technical plea, in which he argued in short for expansion of the so-called ‘Schutznorm’, which in short states that if the defense interests of a suspect that are protected by a rule of law are not violated directly by a violation of said rule of law, but interests of other parties were, then such violation of no consequence for this suspect. According to Hatzmann strict appliance of the Schutznorm can result in unfavorable and unfair consequences. The law is always moving/changing and there is no place for a strict appliance of the Schutznorm in this case, Hatzmann said. The Public Prosecutors Office would not be able to explain to the general public that in the case that carries the name “Buncamper versus the Public Prosecutors Office” the Buncamper’s are no longer being prosecuted because of mistakes made by the removed Public Prosecutor, whilst the other defendants that are well known in the community will still have to appear before the courts..
Bloem argued on behalf of Buncamper’s that there were various violations by the Public Prosecutors office in the case of his clients. These violations should all be considered jointly, in determining whether or not the Public Prosecutors office is still admissible in its prosecution of the Buncamper’s.
According to Bloem the principles of equality, proportionality and whether or not legal prosecution is opportune, should have resulted first and foremost in exploring a solution for an alleged tax issues through the Inspectorate Office and/or the Receivers Office. Bloem quoted the names of various prominent business persons and companies on the island, with same and scope-with much larger and complicated tax related issues, that were resolved out-of-court, by means of investigation and concluded agreements with the Inspectorate/Receivers Office. The only difference in this case is that Mrs. Buncamper is a public figure, next in line to become a parliamentarian, if any of the existing ones cease to function. This however cannot constitute a valid reason to prosecute her criminally, in deviation of the existing policies and manner in which same/similar cases were handled for various other persons on St. Maarten. Bloem said that this is an arbitrary.
Bloem next pointed out that there were severe discrepancies in what the investigating officer Mr. Machielsen said that the witnesses Hollard, Fleming and Boasman allegedly said, and in what these witnesses who testified before the Judge of Instruction actually stated that they said. “There is absolutely no justification for these differences, moreover, Mr. Machielsen never read his notes to these witnesses, did not make statements for them to sign and also, despite requests of some of the witnesses to obtain copies of the statements that Mr. Machielsen made of what they allegedly said, also did not give this them the statements to read.”
The Public Prosecutors Office moreover violated the law by, whilst the hearing of a witness was suspended by the Judge of Instruction so that the Public Prosecutors Office could obtain only obtain the digital bookkeeping from the witness and immediately give this to the Judge of Instruction and the defense, the Public Prosecutors Office decided to wait more than four weeks before handing over the information. What is even more troublesome is that it proceeded by questioning the same witness itself, extensively, outside of the presence of both the defense lawyer and the Judge of Instruction. This is clearly another example of misusing, not to say abusing prosecution rights and violating the principles of good criminal procedural order. The witness was also said to have been unduly pressured by the Public Prosecutors Office.
Bloem also explained that contrary to the specific representation of the Attorney General, Mr. Taco Stein that no charges for money-laundering would be brought against Buncamper’s, the Public Prosecutors Office decided at a very late stage to proceed with the charge. Mr. Taco Stein also said during the procedure initiated by Mrs. Buncamper to bring a resolution to the fact that she was being considered a suspect for more than four years back then, without any concrete action on the side of the Public Prosecutors Office, that the delay in the investigation which was acknowledged was regretful, but caused by the fact that there were no investigating police officers on St Maarten. Stein said these investigators would have arrived in August, 2014. However, Mr. Machielsen was stationed in St. Maarten before and he is the one who conducted the investigation, allegedly within the three month deadline given by the Court of First Instance and with the help of other police officers that were also residing on St. Maarten long before.
Contrary to 3- months deadline to conclude the preliminary investigation imposed by the Court, the Public Prosecutors Office continued its investigation on the sideline in a so-called ‘parallel investigation’. Under given circumstances, this should be deemed improper and/or illegal, according to Bloem. Another troublesome issue Bloem raised is that the removed Public Prosecutor Mrs. Van de Wulp explicitly told to the previous case justice, Mrs. Paulides, that absolutely no further investigations were needed and that the case was completely finished and ready for trial which she said would have been done expeditiously. Mrs. Van der Wulp subsequently proceeded to, as soon as the justice Paulides denied her petition to join both the first and the second indictment and awarded the petition of all defendants to hear all requested witnesses again in the second indictment case pertaining to money-laundering, conduct further house searches, and question several witnesses. This further investigation does not only violate the representation and commitments by the removed Public Prosecutor, it was performed in an illegal way, by intervening in the investigation that was performed by the Judge of Instruction, as per order of the previous case justice, Mrs. Paulides.
The issue pertaining to the legality or illegality of RST police officers who are appointed and sworn in the Netherlands, to perform investigative actions on St. Maarten, without any appointment by St. Maarten’s Minister of Justice and without being sworn in, was also addressed. Bloem stated that both the investigating officers Lutterman and en Berge were not appointed and sworn in, whilst they conducted the majority of the investigation in the case of Buncamper’s, for years. He said after the removed Public Prosecutor Mrs. Van der Wulp was instructed by the previous case justice Paulides to report in writing when referenced police officers were appointed and sworn in, she tried to dodge this question by referring to a statement of the back then Researching Public Prosecutor Bennamar, who now became the case the public Prosecutor. Mrs. Bennamar stated in short that under the existing “working together regulation” for the RST, police officers from the Netherlands could work directly on St. Maarten, without having to be sworn in. Bloem explained that this is in dire contrast with the existing laws and that this position is also not sustained by the Minister of Justice of St. Maarten. Consequently, the investigation performed by the RST officers whilst not being appointed and sworn in on St Maarten is simply illegal and this is another reason why the Public Prosecutors Office should be declared inadmissible in its claims against Buncamper’s.
The points raised by Bloem now raises eye brows as to the intention of the Dutch Government who wants to send some 55 RST officers to St. Maarten to work as they apply certain measures.
If RST officers have to be appointed and sworn in but were not, this could have far reaching consequences for investigations conducted in various cases and result in so-called revision procedures. This would certainly explain why Netherlands insists in being able to appoint investigating police officers directly on St Maarten, a measure that does not seem to be supported by the St. Maarten Government
Finally Bloem pointed out that while it is commendable that the Public Prosecutor Bennamar accepts that a severe violation by a public prosecutor raises questions pertaining to integrity of the Public Prosecutors Office, the conclusion that this violation only affects the second case is incorrect. Furthermore, by accepting that there was a severe violation that must be sanctioned by the inadmissibility of the Public Prosecutors Office in the second case, same Public Prosecutors Office accepted that there is a disadvantage for the Buncamper’s. “There is nothing that limits this disadvantage to only the second case. Moreover, since the correspondence that was illegally obtained and of which pictures were made, regarded both the first and second indictment and actually mostly the first indictment.”
Bloem furthermore stated that although there are two separate indictments there is ultimately one case. The second indictment continues on the charges made in the first indictment, since the charge of money-laundering requires a crime and that crime is described in the first indictment. According to Bloem the legislator does not require Buncamper’s and their defense and the justice to speculate as to whether or not the newly appointed Public Prosecutor took notice of the illegally obtained evidence/documents and spoke with the removed Public Prosecutor. The sanction to such severe violations should simply at all times the inadmissibility of the Public Prosecutors office. Experience shows that a sound those of distrust in also the functioning of the Public Prosecutors Office, is in practice warranted, Bloem said.
Contrary to what Bennamar stated to removed Public Prosecutor Mrs. Van der Wulp was not open and transparent with her violation. Whilst she discussed the house search afterwards with the judge of instruction, she never mentioned taking pictures of nota bene confidential information. It was only after the defense wrote the judge of instruction and informed him accordingly almost one week after the house search, that the removed Public Prosecutor Mrs. Van der Wulp came forward and admitted this ‘mistake’. That cannot qualify as openness and being transparent. The question remains as to whether or not this Public Prosecutor would have also come forward if the defense would not have pointed this mistake out to the judge of instruction.
If the Public Prosecutors office would have found evidence during the second house search at the residence of Buncamper’s pertaining to the five charges in the first indictment, they would have most certainly used this evidence and no one could have argued that the evidence was illegally obtained. Why is it then, that after a severe violation is established, this violation should only have repercussions for the second indictment, Bloem asked?
While Prosecutor Bennamar wants the Court to believe that there are so-called “Chinese Walls” in the Public Prosecutors Office, this is not the case, Bloem continued. The Public Prosecutors Office is “one and inseparable” (in Dutch: “een en ondeelbaar”). Information in possession of certain of its members should therefore be considered generally known within this office. The legislator did not intend for third parties to have to speculate as to whether or not all members are aware of certain data, Bloem told the court.
Bennamar stated, in response to the statement by Bloem that Buncamper’s are not required to believe her because of her beautiful blue yes, well actually brown in her case, that she did not take any notice of confidential information, that she takes her oath of telling the truth and her job quite seriously and when she thus states that she did not take notice of the attachments to the emails sent to her by the removed Public Prosecutor Mrs. Van der Wulp, she is simply stating the truth.
Bloem explained that contrary to what Benammar said it was not only the removed Public Prosecutor Mrs. Van der Wulp who took pictures of confidential data in the house of the Buncampers. The investigating officer Lutterman also took various pictures, contrary to what Benammar stated or in any case what the removed Public Prosecutor Mrs. Van der Wulp told Benammar. If this case should continue, it is imperative to therefore hear Mrs. Van der Wulp, Mr. Machielsen, Mr. C.A. Buncamper junior and Mrs. Lutterman, Bloem said.
The fact that this case is now ongoing for almost 5 years and that it will soon be 1 year since the court procedure started was also brought forward, causing undue delay, is yet another procedural mistake that together with all the other ones, warrants declaring the Public Prosecutors inadmissible.
Justice Lemaire will render a verdict on September 16, 2015.
