OMBUDSMAN INVESTIGATION
Ombudsman beneficial to lawyers and their clients?
In several jurisdictions the law provides that, with certain exceptions, a statement made or an answer given by a person during an investigation by the Ombudsman, and a report or recommendation of the Ombudsman, is inadmissible in evidence in a court or in any other proceeding.
As far as legal proceedings in the Dutch Caribbean are concerned, our laws do not prohibit an Ombudsman’s report from being introduced into a civil lawsuit. Based on an Ombudsman’s report one may report a case to the police or the public prosecutor’s office. It should be noted, however, that the Curacao Ombudsman is prevented from initiating an investigation, or from continuing to investigate a matter, if (and once) the matter at hand is subject to civil, administrative or penal proceedings, or already has resulted in an administrative decision.
Unlike, for example, England and Denmark, in the Dutch Caribbean and the Netherlands, conflicts between the administration and citizens are dealt with by specialized administrative courts.
The Ombudsman may also decide not to start an investigation if the complainant could have sought recourse in administrative proceedings, but has not done so. This is left to the discretionary power of the Ombudsman.
It is therefore of importance that a lawyer carefully assesses whether it is a good strategy to first file a complaint at the Ombudsman and subsequently use the evidence thus gathered in court proceedings for damages.
Lawyers and their clients may benefit from the Ombudsman’s office in several ways. The Ombudsman is able to carry out an investigation without the client having to pay for it. And this is even better than “Going Dutch”, with the bill evenly shared between all parties (like at a restaurant).
Generally, such an investigation will be more thorough than investigations carried out by lawyers. As mentioned previously, lawyers are not investigators and are as such ill-equipped.
Government and government bodies are under an obligation to provide access to their records. A lawyer may eventually get access to the same records albeit after lengthy proceedings and against high costs.
The mere fact that the investigation will be carried out independently and systematically (and in many cases rather quickly) by an impartial expert is in itself of relevance. It is all about credibility.
Another important observation is that involving an Ombudsman or his report being presented to government or the relevant government agency may help in solving the dispute out of court. We should not underestimate the potential power of an Ombudsman in terms of dispute resolution. To ensure successful dispute resolution it is essential that, for instance, cabinet Ministers and senior executive civil servants provide the political will and support to such initiatives. The question is of course, how do we make that happen? How do we convince or force the government to live up to principles of good administration? That will often be frustratingly difficult!
Karel Frielink
Attorney (Lawyer) / Partner
(12 July 2012)
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