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Friday, September 19, 2014

Enforcing court decisions against government

By Roeland Zwanikken , filed under: Civil

Sometimes enforcing a court decision against government is a frustrating experience, however, on July 4, 2014 justice was served when the court of first instance delivered an interesting judgment...

Enforcing court decisions against government
Sometimes a frustrating experience, however, justice was served in a recent court decision
On July 4 2014, the court of first instance delivered an interesting judgment.
Mr. X, a former director of a government owned company, had initiated a substantial court case in summary proceedings against the government and the government owned company (hereinafter jointly: “the government”). His claim, including a compensation for outstanding wages, was awarded. The government appealed the judgment and refused to pay the amount due, despite that the judgment had been declared to have immediate effect (in Dutch: ‘uitvoerbaar bij voorraad’).
As a result of the refusal of the government to pay, Mr. X was no longer able to pay his ordinary daily expenses, nor was he able to hire an attorney. As a consequence, he was forced to litigate ‘in person’ (that is: without a lawyer) in the summary proceedings.
Mr. X decided to encumber some bank accounts of the government with attachments. In summary proceedings, the government claimed withdrawal of these attachments, amongst other things based on Article 436 Rv (St. Maarten Code of Civil Procedure). This Article stipulates that goods (including capital in bank accounts) designated for the public task of the government are not susceptible to attachment.
In this interesting judgment, the court decided that in this particular case the government cannot invoke Art. 436 Rv, as invoking this Article would constitute an abuse of litigation rights against Mr. X. One could say that indirectly, it was the government’s strategy to completely ‘smoke out’ Mr. X. The government must have thought that under this (undue) pressure, Mr. X would give in and settle for a much lesser amount than mentioned in the judgment.
The court considered amongst other things that on the ground of Art. 6 EVRM (the European Convention on Human Rights), every person has a right to a fair trial, and that due to the actions of the government, the interests that this Article aims to preserve, would seriously be jeopardized. On this ground, the court decided that invoking Art. 436 Rv constitutes an abuse of litigation rights by the government.
This is a very satisfactory decision as in the end, justice was served.
Note:
In the Netherlands, it is obvious that local and central governments comply with court rulings. If the courts in the Netherlands give a court order to government, it is a rule that the courts do not attach penalties to the court order, as the government is expected to comply with court rulings voluntarily. In Sint Maarten there is still room for improvement for the government in this respect.

Roeland Zwanikken
Partner at BZSE Attorneys at LawTax Lawyers