The Ombudsman of Curaçao

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					                      The Ombudsman for Curaçao


General
The Ombudsman institute for Curaçao, in the Netherlands Antilles, has been
established by the Island Territory Ombudsman Act, an Act of Parliament (A.B.
2001, no. 69). The Office of the Ombudsman became operational on August 16th,
2004.
This institution of Ombudsman was established in order to give individuals an
opportunity in addition to existing provisions, such as those of the Parliament, the
judiciary, and the internal complaints procedures, to place complaints about the
practices of government before an independent and expert body. Applying to the
Ombudsman may result in steps being taken in particular cases, and, in a broader
context, help to restore confidence.


The Ombudsman’s task
The main task of the Ombudsman for Curaçao is to provide additonal juridical
protection to the citizenry by conducting investigations into actions and practices of
government organs (both the executive as well as the legislative), by putting to the
test the merits of the manner in which a government organ, authority, official or
public servant has acted in a particular matter and by giving judgements whether
those actions were improper or not. The Ombudsman can investigate grievances
against those actions when thereto prompted by a complaint, or he can initiate an
‘own motion’ investigation when it is believed that some maladministration has
occurred. This latter option provides the opportunity to focus on problems of a more
structural kind in the administrative practice of government bodies.
The Ombudsman for Curaçao is also mainly required to contribute significantly to
the improvement of the quality of government and administration in the public
sector of the island territory, by proclaiming, establishing and developing standards,
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norms and criteria of good governance and by providing recommendations to the
betterment of the quality of governance and administration.
Those are also the standards and criteria that the Ombudsman uses when putting to
the test the merits of the actions he has investigated.
Examples of the standards which may be relevant to such investigations include the
general legal principles, fundamental human rights, stipulations by law and
international treaties and also the unwritten principals of good governance, like those
of equal treatment for equal cases, of reasonableness, of proportionality between
means and end, of legal certainty and of legitimate expectations, the requirement to
provide reasons for decisions, certain duties of care, to treat people fairly, to respect
human dignity, and to be unbiased and helpful.


Powers of investigation

The Ombudsman possesses a couple of statutory powers of investigation such as the
power of site and document inspections and the power to interrogate government
authorities and other officials, the complainant, witnesses and experts. Government
organs, officials and public servants are under an obligation to supply information
requested and to allow the Ombudsman access to all places where they carry out
their duties. However summonses cannot be enforced and witnesses cannot be heard
under oath, since the Ombudsman Act is not yet a national law.
The Ombudsman can either order a delinquent authority or official to restore the
rights of any complainant. His authority in this regard is restricted to provide
recommendations to restore those rights.


The complaint

Any person has the right to request the Ombudsman in writing to investigate the way
in which an government organ administrative authority has acted towards a natural
person or legal entity in a particular matter. Before submitting a complaint, the
complainant must in principle inform the relevant government authority, body or
public servant of the complaint, and the latter must have had an opportunity to give
an explanation. This provision accords with the Ombudsman Act, which contains a
number of rules for the internal processing of complaints by administrative bodies.
Once the Ombudsman has decided that a petition is eligible for investigation, he may
adopt one of two methods.
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The principal method
The principal method, as laid down in the Ombudsman Act, is an investigation to
establish the facts regarding the actions of a government authority and all officials
pertaining to its portfolio. As a rule this results in a report, in which the Ombudsman
determines whether or not the investigated action is "proper". This type of
investigation may take some time, in that both sides of the argument have to be
heard and the intermediate step of notifying those concerned of the Ombudsman's
findings, as required by law, has to precede the Ombudsman's report.

The intervention method

The Ombudsman bases the other method on early intervention. This approach is
frequently used in cases where the complainant's primary need is prompt action by
the Ombudsman to resolve a problem and where such action is likely to be effective.
These are frequently cases in which the complainant has been waiting for some time
for a response on the part of the authorities or the authorities have proved unwilling
to reach a compromise. The Ombudsman may then decide to inform the
administrative authority concerned about the complaint, and ask whether there is any
prospect of the problem being solved. In practice, this often leads to a swift response
from the authorities, either clarifying the matter or promising action. The
complainant has then usually achieved his/her goal and has no interest in the
continuation of the investigation. Nor is any general purpose served by issuing a
report in such cases. After a successful intervention, the Ombudsman will inform all
parties involved in writing about his decision not to continue the investigation.
However, if in the opinion of the Ombudsman, there is reason for further
investigation, he can always decide to continue the investigation using the principal
(report) method described above, and this indeed happens from time to time.


Competency exceptions

The Ombudsman is competent to review the manner in which government tasks are
carried out. However there are some exceptions.
In the first place, general government policy and generally binding statutory
regulations are outside the remit of the Ombudsman. This refers to the actions taken
by the legislature and the administrative authorities in their legislative capacity, the
latter concerning especially the sphere in which they cooperate with and are
accountable to Parliament. Similar arrangements exist for political accountability
with respect to general government policy.
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It would clearly not be right for the Ombudsman to intervene on matters such as
those between an administrative authority and Parliament. There is nothing in the
law, however, to stop the Ombudsman from recommending, as a result of his
investigation of a specific action performed in the execution of government policy,
that a piece of legislation or a policy should be amended.
The Ombudsman moreover is normally competent, according to the law, to put to
the test of propriety of the acts of execution of the general regulations and policies in
particular cases.
In the second place the Ombudsman Act sets out the Ombudsman's position with
regard to the relationship between the executive and the judiciary. For instance, the
Ombudsman is prevented from acting - temporarily at least - as long as recourse may
be had to an objection or appeal under administrative law; relative short time limits
normally apply in these cases. However, if such a remedy is available in respect of
the failure of an administrative authority to reach a decision in good time, the
Ombudsman remains entitled to institute an investigation. Likewise, such a
temporary limitation on the competence of the Ombudsman does not apply when the
complaint relates to an action in respect of which a petition may be lodged with the
civil courts. As long as objection or appeal proceedings are pending, or proceedings
before an administrative or other court or tribunal, the Ombudsman may not,
however, investigate. Moreover, the Ombudsman cannot investigate where an
administrative court has already pronounced on the matter in question. The
Ombudsman should therefore refrain, sometimes temporarily, from investigating
certain cases concerning the relationship between administrative authorities and the
judiciary.
A situation may arise in which an individual actually applies to the Ombudsman
when s/he still has recourse to objection or appeal proceedings. In such cases, the
Ombudsman is competent to investigate the matter normally.



Requirements to the complaint
The first step for the Ombudsman is to determine whether he has jurisdiction.
Once the petition has been tested against the relevant provisions it also has to be
examined for admissibility. On this point, the Ombudsman has discretionary power
allowing him to decide against pursuing the investigation requested or to terminate
an investigation which is under way. The most important provisions in this respect
relate to:
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     the requirements that the contents of a complaint must meet (In practice the
requirements relating to the description and supporting evidence for the complaint
are applied fairly flexibly);
     the one-year deadline;
     whether the petition is manifestly unfounded (If it is immediately clear from
information provided by the complainant that the complaint is unfounded, for
example because a request was dealt with in full accordance with the appropriate
procedure, the Ombudsman will not start an investigation);
      whether the interest of the complainant or the seriousness of the action is
manifestly insufficient (The latter ground will only rarely lead to the petition being
refused; the first ground might, for instance if another body has found the complaint
entirely well-founded but the complainant wishes to hear the same conclusion from
the Ombudsman);
      whether the complainant is in fact the person affected by the action at issue (if
not, the consent of the person directly affected is usually sought before proceeding);
    whether the complaint is being heard or has been dealt with by an independent
complaints body pursuant to statutory provisions;
      whether there was scope for the complainant to object or appeal against the
action in question and s/he did not take advantage of this opportunity (In general,
investigations are not pursued in such cases in order to prevent the statutory appeal
time-limits being eroded).


Investigation of the facts

The procedure

The investigation of a case leading to a report usually begins with a summary of the
complaint. The complainant receives notification that, in response to his/her petition,
it has been decided to institute an investigation. S/he then has an opportunity to
comment on the summary. The administrative authority receives the summary of the
complaint and the petition, sometimes supplemented by specific questions, with the
request to comment on these. Four weeks is generally allowed for this. Where
possible, copies are sent, simultaneously, directly to the department concerned as
well as to the official about whose conduct the complaint has been made, if his/her
identity is known. In straightforward cases, the investigation starts with a telephone
call, in which case the account of the findings is the first thing to be put on paper.
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In principle, the response is made known to the complainant, who may comment
on it. Where appropriate, his/her response is in turn put to the administrative
authority. This ensures that the principle that both sides of the argument are heard, a
basic prerequisite for any proper process of investigation, is observed.
The Ombudsman plays an active role during the investigation, initiating action,
asking questions, and deciding when in his view those involved have had adequate
opportunities to comment. He then draws up an account of his findings. In some
cases, it is not possible to establish the facts beyond question, because of
contradictions between the parties' statements or a lack of conclusive grounds on
which to doubt the accuracy of either version of the facts. In those cases, the
Ombudsman will not give a decision regarding the action in question in his report.


Account on findings

The investigation of the facts concludes with an account of findings. The account is
sent to the complainant, the government authority and where appropriate to the
official or public servant, whose action has been the object of investigation. They
then have the opportunity to comment, which occasionally results in some last-
minute modifications. This procedure ensures that the facts in relation to the action
under investigation are established as firmly as possible. The indisputability of the
facts of the case provides the basis for the authority of the decision given.
Investigation sometimes reveals that the government authority has in the meantime
responded to notification of the complaint by taking measures to satisfy the
complainant. This may cause the complainant subsequently to withdraw his
complaint. The Ombudsman then decides in each individual case whether to
terminate the investigation without issuing a report, the most frequent outcome of
such cases.


The report

The Ombudsman Act states that once an investigation has been closed, the
Ombudsman shall draw up a report containing his findings and his judgement. The
Ombudsman’s decision is based on his findings. He shall also determine whether or
not the government authority acted properly in the matter under investigation.
The report is sent to the complainant, the administrative authority and where
appropriate to the official or public servant concerned. A version of the report that
does not reveal the identity of individuals is made public and is also sent to the
Parliament and further on to other interested recipients. Publication of the report
closes the investigation.
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The Ombudsman’s judgement

The Ombudsman's judgement is related to the standards of proper conduct based on
the unwritten and written rules concerning good governance. The judgement may be
accompanied by a recommendation.

Drafting the decision

On the basis of the account of findings, the Ombudsman formulates his judgement
regarding the conduct under investigation, i.e. the judgement as to whether the
action in question was proper or not.
In giving his judgement the Ombudsman states the facts on which it is based and the
specific standards relevant to the judgement. The combination of standards and facts
lead to a reasoned judgement on the action under investigation. The report ends with
the conclusion in which the judgement is translated into an opinion as to whether the
complaint was well founded or not.
In the judgement and in the formulation of the conclusion, prominence is given to
the action under investigation. Where applicable, mention is made of the department
of the government authority or the official actually responsible for the action. In the
conclusion, the Ombudsman always refers to the governmemnt authority bearing
formal responsibility for the conduct in question. Where the relevant action is a
complex one (that is, an action consisting of various different elements) this is
reflected in the judgement, where each element is the object of separate assessment.
In such cases, the final picture is not a straightforward black-white affair.
In practice, the administrative authority might have taken steps in the course of the
Ombudsman's investigation, which go at least some way towards addressing the
complaint. In these cases, a postscript is always added to the report, following the
conclusion, stating that the Ombudsman approves of the steps taken. If none have
been taken and there is reason to suggest that the authority should consider taking
steps, a recommendation is made at the end of the report.

Status of the Ombudsman’s judgement

The Ombudsman's judgement is not legally enforceable: it is up to the administrative
authority to decide what action, if any, should be taken in the light of the report and,
in particular, the decision. That is the difference between a judgement given by the
Ombudsman and a judgement handed down by a court.
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The fact that the Ombudsman's judgement is not legally enforceable means that
the quality of his work is all the more important, since it forms the essential basis for
his authority and hence for the effectiveness of his work. It is therefore essential
that:
     the investigation of facts is carried out conscientiously, and produces
conclusions which are not open to future dispute;
      the judgement and any recommendation must be persuasive. This sets
particular standards for the reasons given in the judgement.

These requirements are particularly important since there is no right of appeal
from the judgement given by the Ombudsman. Moreover, great importance is often
attached to the decision.


Criteria for assessment and their use

When is conduct proper or improper? In order to answer this question, first the
relationship between government and the individual must be examined from two
angles. The first is the "legal relationship": the law underpins and regulates countless
forms of action by the authorities, while the 'products' of that action often assume a
legal form. Seen from this angle, the executive function of government involves the
application of the law.
However, not all government dealings with members of the public are governed by
the law, or have legal consequences: the relationship between individual and
government is made up of contact between people which is not confined to their
roles as determined by the law. This second type of interaction could be qualified as
a "social relationship". Approached from this angle, action by the authorities is a
matter of how government treats members of the public, and of the management of
government bodies.
On the basis of this dual relationship, the standards of proper conduct have been
developed into a system of criteria for the assessment of government actions. This is
important for several reasons: the criteria form the basis for the reasoning which
informs the conclusion as to whether the conduct investigated was proper or not and
they encourage uniformity in the way the Ombudsman arrives at his decisions (they
are used as a kind of checklist). The criteria are also very relevant to the educative
aspects of the Ombudsman's work and are appended every year to the annual report.
The criteria for assessment used by the Ombudsman fall into two groups. The first
group embodies the notion of the rule of law, or the requirement that government
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acts in accordance with both written statutes, which express the will of Parliament,
and with unwritten legal principles. If a particular government action conflicts with
these statutes and principles, and does not appear to be justified on other grounds, it
cannot in principle be regarded as proper conduct. Accordingly, the Ombudsman
reviews the action under investigation in the light of the provisions of written law on
the one hand, such as those relating to human rights and constitutional rights,
definitions of competence, and provisions governing form, procedure and substance.
On the other hand, he reviews the action in the light of unwritten legal principles,
developed in case law and legal doctrine, which are equally relevant to a decision
regarding the lawfulness of government conduct. Examples of the standards, which
may be relevant to such decisions, include the principles of equal treatment for equal
cases, of reasonableness, of proportionality between means and end, of legal
certainty and of legitimate expectations, the requirement to provide reasons for
decisions, and certain duties of care.
There is another group of criteria for assessment. This second group is important
because not every government action, which conforms to the requirement of legality,
or the broader concept of lawfulness, is proper in every other respect. In this context,
the Ombudsman uses standards that can be seen as guidelines for good governance,
which contribute to the propriety of the way the executive authorities act. They can
be summed up as a broad duty of care, which manifests itself in certain accepted
standards for the administrative process and the conduct of public servants in
relation to individuals. These include the requirement to act without undue delay, to
supply the individual with relevant information and listen to his point of view, to
treat people fairly, to respect human dignity, and to be unbiased and helpful. Finally
it sets standards for the government organisation - standards of coordination,
monitoring of progress, protection of the individual's privacy, accessibility of the
authorities and adequate accommodation (e.g. in police cells).
The Ombudsman applies these criteria in the deliberations leading up to his final
decision on the propriety of the conduct investigated. For the reports, and also for
cases concluded through the intervention method, records are made of which criteria
were applied. This creates the possibilities to have overall pictures on the kinds of
complaints that have been received or lead to investigation, in particular periods of
time. Breaking down the decisions (proper/improper) by criterion do also highlight
common areas where problems arise in the actions investigated, such as a
contravention of a certain statutory provision, or a breach of the requirement that
undue delays be avoided. Finally, the statistics can form the basis for comparisons
between different administrative authorities, or to monitor the record of a particular
authority over a period of time. The criteria for assessment are then considered as
important analytical tools in the Ombudsman's annual review of the subjects he has
investigated.
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Representative assembly

In one sense, the office of Ombudsman can be seen as supporting and contributing to
parliamentary scrutiny of the executive. The Legislative Council of the Island
Territory of Curaçao is responsible for institutional matters concerning the
Ombudsman of Curaçao, such as legislation, appointment, strenghtening and the
annual report. The Council discusses the Ombudsman's annual report with him,
although the discussion of the annual report Ombudsman may not participate in a
public debate in a plenary session of the Council.


Publicity

The Ombudsman considers publicity important for two reasons.
Firstly, he finds that highlighting particular cases will contribute to the effectiveness
of his work, which can be seen as one of the foundations of his authority. Secondly,
he finds it essential to inform the public about an institution to which they can apply
to make complaints about public administration. Thirdly, he finds it very important
to inform the community widely about the criteria and standards that the
Ombudsman will use when putting government actions to the test, so that an
improved awareness about these cretaria and standards will contribute to
embetterment of the governance quality.
The Ombudsman's office is up to maintaining active contact with the publicity
media. It publicizes the Ombudsman views on the standards of good governance,
issues press releases about important matters and maintains a column in a
newspaper.
The annual report will be presented at press conferences and publicized.


Closing remark

The Ombudsman’s institute of Curaçao hopes to be able to make a significant
contribution to the further improvement of the quality of governance in the Island
Territory of Curaçao.

                                        ___________________
mr. Frederik P. Wiel LL.M.,
Ombudsman of Curaçao
Concordiastraat 22, Willemstad, Curaçao, Netherlands Antilles
Tel. +5999-4610303 Fax. +5999-4619483
Email: - Fred.Wiel@ombudsman-curacao.an
       - Info@ombudsman-curacao.an

				
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