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“We have not attempted  to cover this up”

St. Maarten – Prosecutor Dounia Benammar put on a hair shirt on behalf of the prosecutor’s office yesterday morning to atone for procedural violations that threaten to jeopardize part of the trial against former Minister of Public Health, Social Development and Labor Maria Buncamper-Molanus and her husband Claudius.

Benammar concluded that the prosecution has to be declared inadmissible in the second summons it brought against the couple. The charges are about money laundering; they involve a $1.3 million claim from the bogus company Eco Green on Sint Maarten Building Supplies, 245 shares of Central Mix Concrete NV and another amount of $1.1 million. The charge is that the Buncampers should have, or could have known that the money involved in these transactions stemmed from criminal activities.

As this newspaper reported already on August 19, something went so wrong during a house search at the Buncamper-residence on June 26, that prosecutor Gonda van der Wulp was removed from the case. Yesterday her replacement Benammar gave full account of what transpired that day.

On June 26, investigators did a house search at the administration office of witness Frederick Fleming on Roses Road. The documents they found there were reason for the prosecutor to demand – verbally – a search of the Buncamper-residence on Ponum Drive in St. Johns. The Judge of Instruction granted the demand – also verbally. Because the Judge of Instruction had business elsewhere and the prosecutor was charged with “maintaining the order,” as prosecutor Benammar put it.

“During the search the prosecutor took photos of a number of documents; investigating officers did not take any pictures,” Benammar said with a reference to the report her colleague Van der Wulp wrote about the search.

At the conclusion of the search, the items that were to be confiscated were discussed by phone with the Judge of Instruction in the presence of one of the suspect. “During this conversation no mention was made of the photographs or of the content of these pictures,” the prosecutor said.

When prosecutor Van der Wulp looked at the photos later on, “she realized that pictures had been taken of documents that possibly fell under the right to confidentiality in the contact between client and attorney,” Benammar said. “Taking the pictures violated the rules for conducting a house search.”

Prosecutor Van der Wulp then sent the emails with the pictures to Chief Prosecutor Ton Maan and to Benammar in her function of investigating prosecutor.

“The chief prosecutor studied the photos and he concluded that possibly three of them could be qualified as confidential. The chief prosecutor has printed the pictures and put them in a closed envelope in the vault.”

Benammar acknowledged that she, too, received an email with the emails containing the photos. “To view the pictures I had to open an attachment and then click on the photo. I have done that a couple of times until I saw a photo that started with Dear Jairo (attorney Bloem – ed.). After reading the first paragraph it was clear to me that this was a confidential document because it was correspondence between a suspect and his or her attorney. I immediately stopped reading and I have no other knowledge of the photos.”

The prosecutor’s office qualifies these events as “an unrepairable procedural violation.”

The consequences of this violation, Benammar said, should be that the prosecution is declared partially inadmissible in the second summons. “The inadmissibility applies only to the summons against Claudius Buncamper and Maria Buncamper-Molanus and not against co-suspects. The prosecution remains admissible in the prosecution of the Buncampers in relation to the first summons.”

The prosecutor pointed out that the photos have not been taken secretly, though the Judge of Instruction was not present and did not know about it. “We have not attempted to cover this up. The suspect has witnessed the photographing. The prosecutor has violated the procedure and this touches upon the integrity of the prosecutor’s office. A prosecutor is a magistrate. He or she has to protect the rights of suspects and respect the rules of the law. That happened insufficiently in this case.”

While Benammar said there is no reason to believe that the prosecutor intentionally violated the rules, her office still concludes that a heavy sanction is appropriate, because the prosecutor is a magistrate.

It is possible to argue that the suspect did not suffer any disadvantage from the violation, Benammar said. “The confiscated documents have not been added to the dossier and the prosecutor writes in her report that she has not studied the photos. It is therefore highly unlikely that these circumstances would have given her an advantage and that this would negatively affect the suspects. The defense has to make this plausible.”

Nevertheless, the prosecutor’s office opted for a safe way out by replacing the prosecutor that handles the case.

“The prosecutor’s office has to act with integrity,” Benammar said. “It has to be transparent in its actions and it has to inform the court completely. It also has to guarantee the rights of a suspect. All this makes that I conclude that the court has to declare the prosecution inadmissible in the prosecution of Claudius Buncamper and Maria Buncamper-Molanus in relation to the second summons – the charge for money laundering.”

The prosecution maintains that the procedural violations during the house search do not affect the money laundering charges against SBS-director Ivan H.

Furthermore, it maintains that the violations do not affect the first summons against the Buncampers either. The Supreme Court ruled in 2013 that a wrongful act in once criminal case does not have to have consequences for another criminal case against the same suspect. In June, the court decided not to merge the two cases against the Buncampers. “Therefore, we have two separate criminal cases,” Benammar said.

Judge Peter Lemaire will rule on the case next Wednesday morning.