Court-appointed bailiff in Caribbean Netherlands


7 januari 2016

The National Ombudsman has investigated a complaint made about a court-appointed bailiff working in the Caribbean Netherlands. In this instance, the National Ombudsman has requested the bailiff to devote close attention to the manner in which he interacts with the public. He is asked to make
himself available for consultation and to respond to all queries within a reasonable period. It now falls to the bailiff himself to demonstrate the required degree of improvement.

Complaint against court-appointed bailiff in Caribbean Netherlands

The National Ombudsman has investigated a complaint made about a court-appointed bailiff working in the Caribbean Netherlands. The complainant, Ms Eijk (1), alleged that this official had failed to take appropriate action further to a recovery order issued in her favour in 2011. The
complainant further alleged that the bailiff had failed to respond to her emails and telephone calls on the matter.

Investigation

The National Ombudsman received the bailiff's written response to the complaint 16 December 2014. Both parties were given the opportunity to read each other's statements and to provide any further information requested by the Ombudsman. The National Ombudsman offered to act as an impartial
mediator in order to resolve the disagreement in an amicable manner. Ms Eijk indicated her willingness to pursue this course of action. No further communication was received from the bailiff.

Assessment criteria

The National Ombudsman must assess whether a public authority or official has acted reasonably and in accordance with all statutory responsibilities. The National Ombudsman has formulated 22 criteria or requirements in this regard. Members of the public must be confident that all are met in
practice.

In this case, the complaint was concerned with two distinct matters: the bailiff's failure to discharge his official duties and his failure to communicate with the complainant in an appropriate manner. The National Ombudsman has not been able to establish that the bailiff omitted to initiate
an investigation of the debtor's financial status, this being the next step in the recovery process. For this reason, the National Ombudsman is unable to conclude that the bailiff acted improperly. With regard to communication with Ms Eijk, the Ombudsman examined whether the bailiff had met
two specific requirements: that of providing full information to the citizen and that of listening to the citizen's standpoints.

Provision of information

The uncontested facts of this case are that the court recovery order was passed to the bailiff in 2011 and was duly served on the debtor by the bailiff shortly thereafter. It is also accepted that the bailiff notified Ms Eijk's (then) legal representative accordingly, providing a copy of the
writ of execution. The bailiff indicated that he would be taking no further action in the matter since the case had been passed to another bailiff. Finally it is clear that Ms Eijk was not aware of any action to undertake in order to expedite the recovery of the debt.

The requirement for proper and effective information provision entails that the citizen must receive information that is correct, clear and complete: it must be fit for purpose. Moreover, the public body concerned must be proactive in communication with the citizen. It must not restrict itself
to providing information only when requested to do so.

A reasonable course of action would have been for the bailiff to meet with Ms Eijk in person and to explain what action could and would be taken in order to enforce the court's ruling. There being a number of alternatives, the bailiff would be expected to explain his choices. The bailiff
asserts that he did indeed discuss the procedure with Ms Eijk, who now wished to ascertain the debtor's financial circumstances. However, she was not certain how she should go about doing so. This is a matter on which the bailiff would have been able to advise her during a personal meeting.
Such a meeting would also have provided an opportunity to resolve any misunderstandings with regard to the role of the second bailiff involved in the case, and to clarify the situation with regard to the acceptance of payment in instalments.

In the opinion of the National Ombudsman, the bailiff did not meet the requirement of good information provision. He failed to offer information which could reasonably have been expected to assist Ms Eijk in executing the order of the court and in pursuing the recovery of the debt. He failed
to take advantage of the opportunity to clarify the situation and to dispel any misunderstandings Ms Eijk may have had about the procedure.

Listening to the citizen

Ms Eijk asserts that she attempted to contact the bailiff by telephone on several occasions but without success, and that her emails went unanswered. In a response to the complaint issued in September 2011, the Vice-President of the Joint Court of Justice agrees that it is reasonable to expect
that a bailiff will make himself available for consultation on at least one occasion, and goes on to state that, "I have frequently been told that this bailiff cannot be readily contacted and have spoken to him about the matter."

For a public body to be effective, it must actively listen to its clients, the general public. The citizen must have the impression that he or she is being seen and heard. A court-appointed bailiff must therefore respond to phone calls and emails from citizens involved in the cases with which
he is charged.

Ms Eijk contends that the bailiff dealing with her case could not be contacted and did not respond to any of her messages or queries. The court's response to her complaint at the end of 2011 appears to lend weight to this assertion, and indeed the bailiff himself has admitted that he does not
always respond to telephone calls or emails "immediately". The picture of the `non-responsive bailiff' has been further confirmed during the National Ombudsman's investigation. The conclusion is that there was no active or constructive communication between the parties, while such
communication can reasonably be expected from a public official such as a court-appointed bailiff.

Further action

There are many situations in which the private citizen is dependent on a public body or official. Accordingly, good communication between the citizen and the public services is essential. Good communication, whether conducted in person, by telephone or in writing, can avert or resolve many
problems. At the same time, the citizen is made aware of precisely what he may expect of public sector authorities. He will feel that he is being taken seriously, which will enhance confidence in those authorities.

1 Name changed for reasons of privacy.

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