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Expert: Aruba law 'decidedly different' from U.S.

International law expert Theodore Simon
CNN Access
Cable News Network (CNN)

(CNN) -- Aruba authorities have arrested five suspects in the disappearance of Alabama teenager Natalee Holloway. None of the suspects has been charged with a crime so far.

Aruba is a Dutch protectorate, and its judicial system is pegged to the Dutch system, in which people are arrested on suspicion of a crime, but not formally charged until later.

CNN anchor Bill Hemmer spoke Friday with international law expert Theodore Simon about the differences between U.S. and Dutch law.

HEMMER: Number one, the first point, these five can be held by officials in Aruba without any formal charges.

SIMON: That's correct.

HEMMER: Which is different from this country. How does that work, Ted?

SIMON: Yes, decidedly different from this country. In our country and under our Constitution, a person cannot be arrested unless there's probable cause. And probable cause has been defined as facts and circumstances based on reasonably trustworthy information that would warrant a prudent person into believing a crime was committed and the person to be arrested committed it.

In Aruba, it's completely different. All you need is some indication that the person may have been involved, and then you can be arrested and held for a substantial period of time.

HEMMER: And you could be held for, what, 116 days without formal charges?

SIMON: Well, it's even more than that. Initially, the police can hold someone for two days. They're not required to bring them before a magistrate until 72 hours. And the initial two can be extended for eight days and then two more periods of eight days. So that's about 26 days. And then another four months. So you're up to 146 days.

HEMMER: So if we jump ahead in this case -- if there's a trial -- let's hope there's not, let's hope this young woman is found and located and she's doing OK. If not a jury trial, who handles it?

SIMON: That's true. And you hit the nail right on the head. There's a question here, is there a crime? All we know is this woman is missing, sadly, terribly, that she's missing. But there's a real question whether or not there's a crime. As to your other question, true, there is no jury trial in Aruba, unlike the United States.

In fact, if they're charged, they'll appear in front of a single judge and be tried. If convicted, they have the right to a trial de novo, which, in effect, means a do over, and have a trial in front of a three-judge panel. However, that may seem helpful to the defense. On the other hand, if they are acquitted at the single judge trial, the government can appeal -- something that could not happen here.

HEMMER: Well, this is pretty -- before we get too far down the line, you're saying judges have a lot of power in Aruba, don't they?

SIMON: Absolutely.

HEMMER: And also, if you're going to go ahead for a second trial, though, are you saying essentially you can be tried twice for the same crime, which is what we call, what, double jeopardy here in the U.S.?

SIMON: Right. We have double jeopardy protections, and they do too in certain limited instances. But their system operates differently. And now we shouldn't pre-judge theirs as being worse or better than ours, it's just different. And their system, as I said, they do not have jury trials. They do not have trials, as we know them.

But a person, if charged, will appear in front of a single judge. They will still have the same standard of being proven beyond a reasonable doubt as to all the elements. But a single judge will render judgment of guilt or non-guilt. However, if the person is found guilty, they can then ask for a new trial, in fact, a do over. On the other hand, the government can ask for a do over.

HEMMER: Yes, if there's an acquittal, the government can go back, we want to do it again. I think that's very interesting and a big difference from our law here in the U.S.

SIMON: That's a big difference. And after that three-judge trial, either party could appeal to the Hague in the Netherlands for questions of law.

HEMMER: Which is essentially the U.S. Supreme Court there.

SIMON: Similar, yes.

HEMMER: Fifth point. You have a right not to incriminate yourself, similar to the Fifth Amendment here.

SIMON: Yes. That is similar to down there. Both in our country and in Aruba, there's the right to be free from self incriminating oneself. And that applies both in the investigative stage -- so where they're held now, they can stand on their quote, unquote, Fifth Amendment rights, which is, of course, not the Fifth Amendment down there, but their rights to be free from self incrimination and not necessarily cooperate or speak to the police. If they are charged ... they cannot be required to be -- to testify against themselves. And if they don't testify, no adverse inference can be drawn.

HEMMER: Based on your position there in Philly, as you watch the criminal proceedings continue down there in Aruba, are they doing everything right?

SIMON: Well, I think you should expect very shortly, even though they're being detained, the lawyers will move to be -- to have their clients relieved of that detention and have it suspended and seek some kind of release on conditions because, as I said, there's an open question whether or not there is even a crime.

I mean, ask yourself. You have the three young men that were first questioned and released. Then you have the two security guards who were later arrested. There's no necessary connection between these two groups. And what's the likelihood that all of them have been involved in this, if, in fact, it is a crime?

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