By Cor Merx, Attorney at law ~
I have been approached by stmaartennews.com to give my comments on the verdict in the Emsley Tromp case. I will do that on personal title and for my own responsibility.
Some people asked me: if they would get involved in a similar case could they be extradited to Curacao or Aruba? It seems to be better for them.
People also mentioned: if you have Dutch lawyers coming in you will always win (case Bonaire and this case).
I understand this confusion, but I would like to go to another level.
I do not know Mr. Tromp. I do not know the case and I do not know the two prosecutors. We all know the press release officer from the prosecutor and the judge. The last one is sometimes also residing in Sint Maarten. We all know the press officer from the prosecutor’s office.
Let me start my comments like this: “The quality of a community depends on its mercy.” I would like to mention that in this case there are no winners. Only losers because we have to really think about the question: why tax-cases or tax-related cases go to court.
In the Roman Empire it was said: give the emperor what belongs to the emperor. Nowadays I would say: give the tax-department what belongs to the tax-department.
If everyone – in a civilized country – can deal with the tax-department (like Trump, Clinton, or our Royal family) why should we go to court?
Only the real tax-cases (between an inhabitant and the tax inspector) should be handled by the tax-chamber of the court (they come frequently to Sint Maarten).
Bringing a tax-case to criminal court is the last thing a prosecutor or a tax-director should consider because once you are convicted there, you will have a criminal record for the coming years. If you deal with the tax department you just make a deal and pay what you have to pay (including the – stiff – fines). The tax department has the same – and more – possibilities to handle tax-fraud cases. They always will find you.
There is something special about the Sint Maarten tax-cases because we do a lot of business with the US. Getting a criminal record would be frustrating to travel and to do business in and with the States. But for what? Even the Treaty between the countries has excluded extradition for tax-fraud (article 8).
If you have a problem with the health department or the hospital: the Inspector General is dealing with it. Have you ever seen a doctor or the hospital in criminal court? All these departments have their own way of dealing with specific problems related to their department. Let that be handled by that department and leave the criminal court for criminal cases.
Another aspect is that a criminal approach of a tax-case will bring you down for the rest of your life because even if you win it is a Pyrrhic victory because the public relations officer from the prosecutor’s office has done his job already. Your future is gone. You will be sentenced by the media (see the book: Sentenced By The Media).
In the other scenario (when your case is handled by the tax-department) you only have to make sure that you don’t cross the line with that department again.
Other questions in this case are:
Could the prosecutor not have found out in a proper way how this case started? All of us are lawyers. All of us know what the judge means when he explains the difference between committing a crime on purpose or not. That is taught to all students in the first three weeks at university. Why continue with a case – and hold on to it – that it is was done on purpose whilst there is a possibility that it was not done on purpose?
If I drive a car with a Dutch driver’s license there will be police officers who tell me that it is not allowed. But if I explain to them that it is allowed according to the Treaty of Geneva and the rules of the Wegenverkeersverordening van de Bovenwindse Eilanden (artikel 98 under sub 2) and continue driving with it will there be another police officer or prosecutor willing to prosecute me?
Back to Tromp: If I did my checks and took advice from the tax-department and from tax lawyers and from everyone who knows something about taxes and the advice from all of them is clear: its not forbidden: why would you still prosecute a person?
It reminds me of a quote in our last edition of the Handbook of Criminal Procedures.
“Si j’étais accusé d’avoir volé les tours de Notre Dame, je commencerais par m’enfuir.” (If they accuse me of stealing the towers of the Notre Dame (or the Empire State Building!!!), I better start running away instead of going into a criminal procedure). See the introduction to Minkenhof’s Wetboek van Strafvordering by Prof. Mr. Reijntjes (edition 2017, Wolters Kluwer).
There is only one victory: the judiciary system worked….
Cor Merx, Attorney at law
