Integrity Chamber: Protection of the fundamental rights of persons involved in an investigation addressed

Philipsburg — Having established that the concerns presented to the Constitutional Court, which led to the first Ordinance on the Integrity Chamber being squashed, and the contours offered by the Court for consideration in drafting a new law, were adequately addressed in the law ratified on 18 December 2017, the Ombudsman considers the rights of the people sufficiently protected.

The main reason for the petition to the Constitutional Court against the first National Ordinance Integrity Chamber revolved around the lack of protection of the fundamental rights of the persons involved in an investigation, whether it being a party of interest, witness, expert, service provider, whistleblower or the like. The Ombudsman argued that laws do not serve themselves, but they govern and need to serve the people who are bound by the law. The Ombudsman emphasized that laws should be complete, transparent and should consider the protection of the rights of the people. The Court observed that the core of the matter related to the question whether administrative investigation by the Integrity Chamber infringed on essential guarantees for a fair procedure, including the right to defend oneself.

In its ruling the Court considered that a mere nullification of the Ordinance on procedural grounds would not suffice, and therefore sought to formulate preconditions pointing at parts of the Ordinance that are unclear; and made suggestions to provide guidance with regard to the constitutional safeguards to be observed when drafting a new Ordinance. The Court established that both in light of article 5 (the right to privacy) and article 26 (the right to a fair trial) of the Constitution and for reasons of effectiveness, essential flaws and substantial ambiguities would need to be avoided in a new Ordinance. The Ombudsman concludes that these  matters are adequately addressed in the new law.

The new Ordinance clearly distinguishes between administrative and criminal law to the extent that the law no longer refers to the term integrity breaches (‘integriteitsschending’), which may include a ‘criminal charge’, but defines the acts under investigation by the Integrity Chamber in terms of suspicion of misconduct (‘misstand’). A behavior that is wrong and urgently needs to be corrected. Non- cooperation with an investigation by the Chamber can be fined, however is no longer subject to possible imprisonment.

Other issues the Court explored are the powers of the Integrity Chamber with respect to search of, and investigation in premises. The Ombudsman argued that without the right of persons involved in an investigation having the possibility to have actions taken by the Integrity Chamber reviewed by a Court beforehand, should be deemed contrary to all principles of criminal law. The Court established that the pertinent powers would need oversight and supervision by an institution with sufficient safeguards for independence and expertise, not necessarily the judiciary. This is provided for in the new Ordinance by means of a Supervisory Council charged to issue a warrant after due consideration, upon request of the Integrity Chamber. Complaints  regarding questionable acts of the Integrity Chamber can be filed with the Supervisory Council through complaint procedures yet to be established in a document, formally published in the National Gazette, notwithstanding the right of a person to address the Ombudsman to investigate whether propriety has been observed by the Chamber. The Integrity Chamber is considered a private entity with public authority (‘zelfstandig besturrsorgaan/ZBO’). The new law provides for the right of an interested party to be heard and review a report drafted by the Chamber before it being formally established. The road to the Administrative Court is open to dispute the advice provided to government pursuant to the investigation, as well as the administrative methods applied by the Chamber.

There is a thin line between information acquired in investigations through applied administrative supervision and criminal investigation of the same act. Whereas the right to remain silent and the principle against self-incrimination are not applicable in administrative law, questionable was how information provided under the obligation to cooperate with an investigation of the Chamber, would be dealt with. The rights of a person turned suspect after the case is turned over to the prosecuting agency could be compromised in the transition of the information. The Ombudsman argued there should be absolute clarity and transparency pertaining to procedures to be followed, and how information acquired by the Integrity Chamber is handled regarding misconduct falling under the category of a ‘criminal charge’. The new law provides for a protocol to be signed by the Integrity Chamber and the Prosecutor on these and other matters, as well as the Integrity Chamber and the Ministry of General Affairs to avoid conflicts with the National Ordinance Substantive Civil Servants law (‘Landsverordening Materieel Ambtenaren recht/LMA’).

In the procedures to the Constitutional Court, the Ombudsman observed that every report written on the integrity situation on Sint Maarten stressed the importance of an awareness campaign on the subject of integrity.

As such the Ombudsman is pleased to note that in addition to its task to advise government regarding policies to improve integrity in general, the Integrity Chamber is explicitly charged with the task to engage in continuous awareness campaigns among the public. The explanatory notes (‘MvT’) refer to the slogan ‘Integrity starts with me’, which is vital for the success of the newly to be formed institution. A National Ordinance whereby everyone has the duty to cooperate with an integrity investigation – whether one is neither aware nor involved with the matter at hand -, requires consensus and knowledge of the norms and values we uphold as a people.

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Related article: Ombudsman finds no reason to challenge new Integrity Chamber law