LEGAL ASSISTANCE IN CRIMINAL INVESTIGATIONS, EXTRADICTION AND ENFORCEMENT OF CRIMINAL JUDGMENTS BETWEEN THE UNITED STATES OF AMERICA AND THE NETHERLANDS ANTILLES
A treaty is required
International legal assistance
There exists a treaty between the Kingdom of the Netherlands (of which the Netherlands Antilles form a part) and the United States of America regarding the mutual legal assistance regarding criminal matters. “Legal assistance” includes assisting with, or granting co-operation to an investigation, sending and/or obtaining documents, files, or information, hearing of witnesses, serving notice of documents or notifying third parties, attachments and search of premises.
According to the treaty, the competent authorities with regard to the requests for legal assistance are the Attorney General or his authorized representative for the United States and the Minister of Justice of the Netherlands or the Minister of Justice of the Netherlands Antilles or their representatives for the Kingdom of the Netherlands.
Extradition
Extradition is only possible on the basis of an extradition treaty. There is a treaty between the Kingdom of the Netherlands and the United States of America regarding extradition of delinquents. The appendix to the treaty lists facts that are considered as matters for which extradition can be requested. In addition the treaty provides for a possibility of extradition in case of matters that are punishable according to the federal laws of the United States and the laws of the Kingdom of the Netherlands Antilles. Requests are executed through diplomatic channels.
As a legal entity cannot be imprisoned, extradition can only concern natural persons. However, article 53, subsection 2 of the Penal Code of the Netherlands Antilles provides that if an offence has been committed by a legal entity, the following persons can in principle be prosecuted: the legal entity itself and/or those who gave instructions for the act (i.e. actual involvement) or who actually directed it (i.e. passive involvement).
The latter category of passive involvement in any case applies if the relevant officer, even though being authorized and reasonably obliged to do so, omits to take measures to prevent the criminal behaviour and knowingly accepts the realistic risk that the criminal behaviour will occur. I don’t know whether or to what extent United States’ laws provide for a similar piercing of the corporate veil for criminal liability. In case they do, it seems that extradition of the aforementioned persons could be requested.
Enforcement of criminal judgments
In the Code of Criminal Procedure of the Netherlands Antilles it is provided that enforcement of a foreign criminal judgment in the Netherlands Antilles is only possible if a treaty exists between the Netherlands Antilles and the other country involved (article 569). Such a treaty could be bilateral or multilateral. No such “Execution treaty” exists between the Netherlands Antilles (or the Kingdom of the Netherlands) and the United States of America. A United States criminal judgment can therefore not be enforced within the Netherlands Antilles.
Karel Frielink
Attorney (lawyer) / Partner
