COURTS AND OMBUDSMAN REPORTS

Ombudsman reports are taken seriously
 
An Ombudsman determines whether a complaint is justified or not. If the Ombudsman finds that a complaint is justified or has merit, he may decide to try and persuade the government or government agency to change its policy or decision.

This topic, however, is about an Ombudsman report resulting from a complaint primarily filed to establish whether there were sufficient grounds to initiate legal proceedings in a regular court. A lawyer and his client may decide to submit the Ombudsman report to the court, in the course of proceedings, as evidence that supports the client’s position. Such a report is, however, not legally binding any way whatsoever, despite the fact that reports made by Ombudsmen are sometimes labelled as “Ombudsprudence”.
 
I will briefly discuss our rules on evidence in civil matters. According to Dutch Caribbean law on civil procedure, whoever asserts a fact must prove it. In other words, any party will be required, in principle, to offer evidence to prove the facts that he has asserted or been required to assert if he is to rely on them for legal purposes. A Dutch Caribbean court may only base its decision on facts. An alleged fact that is not disputed by the parties is considered to be such a fact, even if it does not correspond with reality. For example, if both parties state that they were involved in a fight in Curacao, the court will assume the correctness thereof, although both parties know that the fight was actually in Bonaire.
 
In principle, a Dutch Caribbean court is free to evaluate the evidence before it. This is true, in particular, when an Ombudsman report is brought into a case to support the position of one of the parties. In this respect the quality of the research done by the Ombudsman, the substantiation of his findings and the independence of the investigation will play an important role. However, even in these circumstances the courts have the last word as to whether an Ombudsman has come to the right conclusion. It goes without saying that an Ombudsman can also make mistakes, for instance, by not properly gathering the facts, misinterpreting facts, or jumping to conclusions.
 
There is another important observation to be made. The fact that an Ombudsman finds a complaint justified does not necessarily mean that the government or government agency committed a tort a.k.a. a wrongful act (in Dutch: ‘onrechtmatige daad’). Whether or not a tort has been committed must be assessed on the basis of the (Curacao) Civil Code.
 
The Appeal Court of The Hague, for instance, ruled that even though the Ombudsman had concluded that the Dutch tax authorities acted unfairly by not giving correct information in a particular matter to certain parties, this did not automatically mean that the State of the Netherlands had acted unlawfully against these parties, who had initiated legal proceedings against the State. Under the laws of Curacao the result would not have been different.
 
The District Court of The Hague, to mention another example, ruled that even though the Ombudsman had reached the conclusion in his report that the State of the Netherlands had acted improperly, this improper behavior was not necessarily also wrongful and that there was therefore not necessarily an obligation to compensate the damages.
 
So even if the Ombudsman went as far as to conclude that a government body had committed a tort, which I guess will not happen often given the assessment framework of the Ombudsman, it is ultimately up to the courts to interpret the facts and decide whether this is indeed the case. In this sense, an Ombudsman’s report only provides an opinion, albeit in many cases a learned opinion.
 
In many cases an Ombudsman deals with administrative decisions or the lack thereof. It goes without saying that in his reports the Ombudsman will make reference to the principles that have been developed by the courts to help them judge administrative behavior in conflicts with citizens. In those cases it is also up to the court to decide whether or not the Ombudsman came to the right conclusions.
 
In another case, there was a dispute between a client and his insurance company about certain premiums charged. There had previously been discussion about the reasonableness of such premiums and based on an Ombudsman report, settlement agreements had been concluded between several insurance companies and consumer organizations. In this particular case, the court ruled that lacking any alternative standard, it would follow the agreements mentioned, which, as said, were based on the Ombudsman report.
 
Based on the court cases reviewed, I get the impression that Ombudsman reports are taken seriously by the courts. Perhaps one can impress a girl by being in excellent physical shape, but to impress a court is not that simple. It requires experience, knowledge, authority and in particular the ability to draft a report supported by verifiable evidence, sound reasoning and common sense.
 
Karel Frielink
 Attorney (Lawyer) / Partner
 
19 July 2012

(Karel's Legal Blog)

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