3rd International Symposium of Algiers: contacts with the Arab League

Mohamed Chérif, president of the National Chamber of Judicial Officers of Algeria, gave a welcome speech and insisted on his joy to greet many delegations coming from the old continent (Hungary, Greece, Italy, France, Romania) or of Africa and Arabia (Burkina Faso, Cameroon, Ivory Coast, Guinea, Mauritania, Qatar, Saudi Arabia, Egypt, Sudan, Tunisia).

The word was then given to Jacques Isnard, president of the UIHJ, who stigmatized the incompetence of the financial institutions, not framed by a legal or judicial system, which led according to him to the current world financial crisis. Jacques Isnard insisted on the urgent need for finding a balance between economy and Justice, for a better legal security, which is at three levels: the legal organization of the states, the law of the States and the aptitude of the States to guarantee the enforcement of legal decisions, in respect of article 6 of the European Convention on Human Rights.

This enforcement must be fast and effective. Step by step, it led to a profession able to guarantee legal security: a judicial officer with the coming of an autonomous Law of enforcement. With this in mind, President Isnard exhorted African countries to join the Hague Conference on Private International Law.

Tayeb Belaiz, Minister for justice of Algeria, declared himself pleased with the effectiveness of the 800 Algerian judicial officers who allowed the enforcement of 86% of court decisions judged in 2008. He insisted on the presidential will to reform the Justice system to make it more efficient and on the key role played by Algeria during the signature of the Arabic Code of Orientation on 27 November 2008 in Beirut, modeled on the status of the Algerian judicial officer. Tayeb Belaiz then declared opened the third international symposium of Algiers. The works was divided into five workshops.

The first workshop related to the topic of: “The emergence of the occupation of judicial officer”. It was chaired by Dib Abdesslem, president of the Commercial and Maritime Chamber of the Supreme Court.

As Adrian Stoïca (Romania), member of the board of the UIJH, couldn't eventually attend the conference, Françoise Andrieux, judicial officer (France), general reporter of the next international congress which will be held in Marseille (France) from 7 to 12 September 2009, read his presentation on the first sub-theme: “The judicial officer: a professional of enforcement with private and independent statute”.

For Adrian Stoïca, a fair trial ensures three guarantees:

The judicial officer is impartial and offers guarantees to the citizens because he acts with care, proportionality and is responsible for its actions.

Our fellow-member developed the application of these principles in Romania, with respect to the recommendation of July 2003 of the Committee of the Ministers of the European Union, the enforcement of legal decisions being an integral part of a fair trial. He exhorted all the countries to take measures to ensure the enforcement of legal decisions in order to avoid the rise of a private justice in contemplation of the many decisions of the European Court in this matter.

Mourad Skander (Tunisia), member of the board of the UIHJ, had the responsibility to develop the second sub-theme of the “Characteristics and guarantees of the private and independent judicial officer”. He stated that, within the UIHJ, the private liberal system was prevailing. He insisted on the liability attached to this liberal professional, highly trained, and very attentive to the way his writs are drafted. This civil, professional and criminal liability is the best guarantee for the citizens to a strict and fair application of the law of the judge, without any interference.

The third sub-theme, entrusted to Patrick Safar, vice-president of the National School of procedure of Paris (ENP), had as subject “Speed and effectiveness: emerging criteria of the action of the judicial officer”. Patrick Safar insisted on the need for equipping enforcement specialists with legal means to enable them to gain speed. Hence, he attempted to demonstrate that an effective enforcement initially supposes in a first place a facilitated access to information and, in the second place, an efficient system of enforcement. Access to information is being declined as follows:

Mr. Safar mentioned, on this matter, the green book ordered by the European commission on the transparency of assets. An effective system of enforcement supposes a simple and readable procedural system which guarantees the right of citizens by the possibility of disputes or amicable resolution of conflicts, he concluded.

The second workshop opened at 14:30 on the topic: “The statute of the judicial officer” and was chaired by Jamel Bouzertini, director of the Center of Legal and Judicial Research Center”. Noureddine Belkacemi (Algeria) made a presentation on the fourth sub-theme “Highlights of the statute of the private judicial officer”. He gave a historical background of the function of judicial officers in Algeria since the Ancient times: from the Pax Romana to the Act of 1967, from the civil servant judicial officer within Clerk's Offices to that who profited from the liberal statute in 1991, re-examined in 2006. The judicial officer is the “strong link” of the legal chain said Mr. Noureddine.

The fifth sub-theme was entrusted to Jean Michel Rouzaud, president of the ENP of Paris (France) and related to the “Access to the profession and training”. For Jean-Michel Rouzaud, the occupation of judicial officer in France gained in credibility due to his training which enabled him to rise in the forefront of legal professions. The president of the ENP of Paris pointed out that since 1975, date where a degree in law was made compulsory to reach the function of judicial officer, relayed in 1996 by a Master in law, it is a fact that today nearly 30% of the students have a Master 2 in Law. He insisted on the key role of the ENP of Paris which ensures training courses even for A-level students to lead them to the professional examination of judicial officer.

The sixth under topic, developed by Marc Schmitz, quaestor of the Committee of the UIHJ (Belgium), related to the “Material conditions of exercise of the profession”. Marc Schmitz remembered from the preceding workshops that the effectiveness of an enforcement agent played a central role in a Rule of law. “The best judgment in the world given by the best judge is without any value if it cannot be carried out efficiently”, he added. He pointed out that the 500 Belgian judicial officers were equipped with powerful data-processing networks allowing them to work in an interactive way and in real-time, with access to files, online 24 hours a day. He insisted on the access to external databases, essential in the effectiveness of the judicial officer. He gave the example of Belgium where judicial officers have direct access to the National register of population, the National register of Legal persons or the National Register of motor vehicles, with the help of an electronic key.

Our fellow-member praised the ambitious project implemented by the national Chamber of the judicial officers, since 2006, called “e-judicial officer”, having for goal to centralize access to all data bases, having cost nearly 1,800 000 Euros and not yet finished right now. He concluded his presentation, while insisting on the human aspect and the need for working with well trained staff, of which the Belgian national chamber in collaboration with the FOREM (public service of the formation and employment) was working on.

The third workshop had as subject “the activity of the judicial officer” and was placed under the chair of Jamel Bouzertini, director of the Center for Legal and Judicial Research”. For Algeria, Frendi Nabil developed the seventh sub-theme: “The activities of the judicial officer in Algeria”. Mr. Nabil declared himself delighted by the reform, applicable since April 26th, 2009, which was going to give the Algerian judicial officers a whole panel of activities: service of documents, representation of parties before jurisdictions, seizures, auctions or statements of facts. Enforcement can from now on relate to administrative titles, to maritime debt, debt recovery with sequestration, eviction procedures, seizure of bank accounts and industrial and commercial rights, he was pleased to say, without forgetting mediation.

Rose-Marie Bruno (France), member of the UIHJ and ENP expert, was charged to develop “The panorama on the activity of judicial officers”. Rose-Marie Bruno then started to compare the activities of Algerian and French judicial officers. Our activities look alike, she said. “Like you, French judicial officers serve documents, represent their clients in front of certain jurisdictions, proceed to seizures of tangible and intangible movable or immovable properties and carry out evictions”. For the time being, mediation is not a part of the activities of French judicial officers but these professionals are closely interested in the directive of the European Union of May 21st, 2008 on this topic. Our colleague then regretted that the execution judge is not envisaged in the Algerian legislation, not as a censor, as one could think, but as a judge willing to listen to judicial officers and the problems they are faced with while enforcing court decisions.

Dominique Aribaut Abadie (France), member of the UIHJ, was charged to develop the eighth sub-theme: “The monopoly of the judicial officer and the competing field”. Mrs. Aribaut Abadie pointed out the intrinsic paradox with the function of the judicial officer: auxiliary of justice indeed but also an economic agent. She initially described the monopolistic activities of the judicial officer, that is to say the service of documents, the enforcement of legal decisions and the court service. She pointed out the essential case judged on 19 March 1997 by the European Court of Human Rights, which crowned the Right of enforcement as an essential element of the right to a fair trial, in the sense of article 6 of the European Convention on Human Rights. Within the framework of the competing activities of the French judicial officer, our colleague mentioned the legal and economic activities and those relating to the representation of parties. Within the framework of his legal and judicial activities, the judicial officer is brought to give consultations, to draw up statements of facts and to make evaluations of goods in his capacity as an auctioneer. Within the framework of their economic activities, French judicial officers increasingly carry out amicable collecting of debts. Lastly, she concluded, judicial officers are brought to represent their clients in front of the land court, the commercial court, or the county court in case of attachments on salaries.

The ninth sub-theme on the topic, “Capacity and limit of the judicial officer in his activities”, was developed by Abel Didier Pansard (France), former president of the ENP of Paris. Mr. Pansard recalled that the judicial officer is an auxiliary of justice having a regulated occupation. For this reason he profited from true prerogatives but his monopoly is not unbounded. Within the framework of his monopolistic activities the judicial officer has all latitude to turn to the enforcement judge (to get special authorizations) or the public prosecutor (access to information on debtor's assets). As for the limits which are binding on the judicial officer in the exercise of his activities, Mr. Pansard remembered the contractual limits, those related to his power as a proxy, the legal limits due to his forced ministry, and the limits as regards the personal situation of the debtor: forced entry of debtor's domicile, or bankruptcy procedure which stops all enforcement. As a conclusion, Mr. Pansard quoted the remarks Baron Favart de Langlade made around 1800: “ushers have two principal rules of control to observe: initially a deep background of probity and delicacy, to bring them in the exercise of their functions, the necessary knowledge, all possible zeal, in a word the feeling of all their duties.”

Workshop 4 opened on 12 February on the topic: “The judicial officer, economic agent and advantage for the State. The actions of the UIHJ in favor of the self-employed judicial officer”, and was placed under the chair of Allaoua Laamouri, President of the social chamber of the Supreme Court.

Francis Guépin (France), member of the board of the UIHJ, developed the tenth sub-theme: “the judicial officer: economic agent”. Mr. Guépin articulated his matter around two topics: the activity of the judicial officer related to the covering of debt and that developed besides debt covering. He insisted on the revealing decrease of activities linked to the judiciary in civil and commercial matter in France, fortunately counterbalanced by the turnover produced by the amicable collecting of debts, which is an economic activity in full expansion. He explained the disaffection for the judiciary by the dearness and the slowness of justice. He condemned the practice of some debt collecting agencies using processes unworthy of a democratic state. He insisted on the humanity developed near the citizens by the judicial officer within the framework of enforcements which must safeguard the rights of the creditors without making it possible for the debtor to obtain terms of payment. Regarding non-judiciary activities, our fellow-member recalled the important role played by the judicial officer near business managers that he can in particular accompany since the creation of the business by the drafting of statutes and also during all its legal life, through council, drafting of reports and service of all extra-judicial documents. He finished his presentation by pointing out the important investment of the profession in new technologies, in particular the service of “email-deposits”, and the key role played by judicial officer within the framework of the industrial or intellectual property, by the reception of patent registrations.

The eleventh sub-theme on the topic: “The advantage of a private and independent judicial officer” was developed by Hadder El Aid (Algeria) and Francesca Biondini (Italy). Before exposing the advantage of an independent and liberal profession, Mrs. Biondini insisted on the need for making a presentation of the profession in Italy. The Italian judicial officer is a civil servant, lacking of any means to work (offices, computers), but a “hybrid civil servant”, she regretted because this system means a civil, criminal and disciplinary liability for which he must be personally insured! The Italian judicial officer ensures the service of documents and the enforcement of court decisions. He has fixed wages and a variable fee according to the distances covered but he is paid practically more not to be productive, she mentioned! Francesca Biondini insisted on the need for creating a free and independent profession in Italy, a will relayed for several years by the UIHJ and the AUGE association, chaired by Arcangelo d'Aurora, counting nearly 600 members, and whose creation project of the profession, with a national chamber, a statute, and a national school of procedure, is currently discussed in front of the Italian Senate. Mrs. Biondini ended her presentation by hoping that the Italian public authorities allow the creation of an occupation of liberal and independent judicial officer.

Leo Netten (the Netherlands), 1st vice-president of the UIHJ, developed the twelfth sub-theme: “The judicial officer within the framework of the UIHJ”. Leo Netten said that, on our planet, the various legal systems were based on six emergent groups of legal cultures: the traditional English law, the American Common Law, the Romanian and English inspired law, the Germanic and Scandinavian Law, the Latin inspired French Law and the Islamic Law. To these laws, he added, correspond different statutes for the judicial officers and also for the various enforcement procedures, which he classified in four categories. The German-Scandinavian model where enforcement is matched with penal sanctions (Germany, Scandinavian countries, etc.); the Roman-Germanic model, where enforcement is founded on the principle of the Roman law with coercive penal sanctions (Spain, Argentina); the Latin-Roman system, without real sanctions apart from the misappropriation of seized objects (France, Canada, Maghreb and African countries...). Finally the Common Law model, which is very complex, in use in England or Wales, with three enforcement professionals: High Court Enforcement Officers, enforcement agents and County Court bailiffs. The United States also knows the Common Law system, where civil and criminal enforcements are made by Sheriffs. In certain States constables or Process servers exist. Canada also applies the Common Law in its Anglophone part.

The 1st vice-president of the UIHJ made a rapid description of the German-Scandinavian systems which prevail in Germany, Austria, Sweden, and Finland, and the Roman-Germanic systems, in force in Spain or Argentina where enforcement is made by civil servants - and is thus far from effective - thus supporting the development of private justice. Lastly, Leo Netten praised the merits of the Latin-Roman system in which the judicial officer is a public and ministerial officer, system adopted by the majority of the countries of the UIHJ: The Benelux countries, France, Poland, Hungary, the Ohada countries, and the Maghreb countries, of which the effectiveness is not any more to be proved, stigmatizing once again the inoperative system of Italian civil servants enforcement agents. Our fellow-member concluded with regret, in the lights of so many other models, such as the Russian one which wasn't ready - yet - to adopt the liberal system.

Workshop 5 opened on the topic: “Discipline, ethics and adhesion with the constitutional, legal and economic mode of the judicial officer”. It was placed under the chair of Allaoua Laamouri.

The thirteenth sub-theme, entitled: “Discipline, ethics and role of the Public Prosecutor” were developed by Thierry Guinot (France), secretary of the Scientific Council of the UIHJ, and Fredy Safar (France), member of the UIHJ. Thierry Guinot pointed out that the judicial officer is invested of a public power, i.e. an attribute of the State, and that for this reason he is guaranteeing the effectiveness of legal decisions, and acts as a responsible and independent guarantor. Several consequences result. The being that is the judicial officer incarnates the function. His actions are only a demonstration of this quality of the being who substitutes to the man he is (ontos), the man who he must be (déontos). This constitutes the etymological base and the basic concept of “deontology”. The respect of deontology imposes behavior rules with respect to his peers but also with respect to parties, third parties, judges or public authorities.

The judicial officer, as an object of deontology, is a dynamic subject, that is to say the being must conform to the “duty being”: one does not escape the eye of his conscience. Brought back to the professional class itself, it is necessary to add the collective conscience. The group will then be subjected to the public opinion, a merciless eye which can throw the opprobrium on the individual, the profession, the judiciary and beyond the principle of justice itself. In conclusion, Thierry Guinot recalled that the relation between judicial officers and the justice authority is a true ontological reality which implies that the vital bond between the State and its bodies constitutes an indispensable condition of the existence of the State but also of the exercise of the public officer that is the judicial officer.

The fourteenth sub-theme, “Remuneration and liability of the judicial officer in Algeria”, was developed by Abdelhak Ziani and Mohammed Berwati (Algeria).

The fifteenth sub-theme, “The judicial officer, auxiliary of justice and public officer”, was developed by Anne Kerisit (France), expert ENP, member of the UIHJ. In his capacity as an auxiliary of justice, the judicial officer takes part in the administration of justice while assisting judges, which makes of him a privileged interlocutor of the judge and parties, declared Anne Kerisit. How? By ensuring the court service (one speaks then about court usher) and by the service of documents within the court or by carrying out statement of facts ordered by a court decision, i.e. precisely ordered by the judge: on this occasion he is “the eyes of the judge”. This relates to statements of facts and reports authorized before any litigation or ordered in the course of a law suit. In his capacity as a public officer, the judicial officer confers on the documents which he writes the character of authenticity. In addition his quality of public officer, because of the prerogatives of public power which he holds, enables him to deliver enforceable titles as regards unpaid bank checks. After having pointed out the definition given of the authentic documents mentioned in article 1317 of the French Civil code, Anne Kerisit insisted on the fact that the act written by the judicial officer comprises only certain mentions recognized as authentic: its date, identity and applicant's permanent address, identity of the judicial officer, the name and domicile of the recipient of the document, methods of handing-over and the name of the person who received the document. The aforementioned mentions are taken thus until inscription of forgery. Anne Kérisit then pointed out the possibility for the French judicial officers of drafting enforceable titles relating to unpaid bank checks, procedure which so far was the subject of very little jurisprudence, guarantees of its good performance, she was pleased to conclude.

The sixteenth sub-theme related to “the separation of the functions of the judge and the activity of the judicial officer. The judicial officer element of the Rule of law”. It was developed by Honoré Aggrey (Ivory Coast), permanent secretary of the UIHJ for West and Western Africa. Mr. Aggrey noted how heavy was his task in setting the demarcation line between the capacities of the judge and the prerogatives of the judicial officer, while posing as a postulate that one is in a State which constitutional mode is founded on the separation of powers and thus democratic. He initially approached the concept of separation of powers, largely developed by Montesquieu and thus defined the executive, legislative and legal powers. Within the judicial power, Honoré Aggrey specified the role of the judge, who is to read the law, and that of the judicial officer, auxiliary of justice, in charge of the enforcement of legal decisions while protecting citizens. “In their respective fields, the judge and the judicial officer are the pillars of the judicial power”, he said. Still it is necessary that the judge is independent from the executive power and that one gives to the judicial officer the means of concluding his task, added our fellow-member, and to point out the fundamental decision of the European Court of Human Rights, in the Pini v. Romania case which, for the first time, had recognized enforcements agents as an element of the Rule of Law. As a conclusion, Honoré Aggrey invited the assistance to share his formulation according to which if it is allowed that the court decision is made in the name of the people, that the failure to carry out enforcement of an enforceable title is an attack to the bases of democracy and questions the authority of the judicial power and, consequently, of the State, to prevent the creation of a private and hasty justice. It seems that here are the reasons for the existence of judicial officers and of their values.

The summary report was presented by Françoise Andrieux. Our colleague developed her presentation around the answer to the following question: do the requirements of justice have a place in economic relations? Stressing the interventions of several speakers, who according to her, presented the occupation of judicial officer as one of power from an intrinsic point of view when he carries out his activities and also from an extrinsic point of view with the social role he plays, she stated that the conciliation between notions of justice and economy necessary involved the judicial officer, its common denominator.
She concluded her speech recalling that the judicial if a guarantor of the rule of law and that legal security is one of its essential and undisputable elements.

At the end of the symposium, the following declaration was adopted.
DECLARATION Of ALGIERS II

Considering the declaration of Algiers of the June 8th, 2008, during which is was wished that “under the aegis of the National chamber of judicial officers à Algeria, with the support of the International union of judicial officers and the co-operation of the Algerian authorities, a symposium is would be organized very soon in Algiers by gathering all present countries including Arab countries with an aim of continuing the work undertaken at the time of this second conference which will be used as point of reference to their common reflection.”

Considering the contents of work of this conference,

The whole of the experts having taken part in the third international symposium of Algiers which has been just completed in the presence of the delegations of the Arab countries:

In agreement with the will previously emitted of the representatives of:

Considering the nature of work of this conference which puts in particular forward the interest of the private statute and in accordance with the decision of the Council of Ministers of justice of the Arab countries taken on November 27th, 2008 in Beirut (Lebanon),

Recognize the statute of the Algerian judicial officer as a model to apply in the Arab countries.

Considering the will of the above mentioned countries to continue the tied relations aiming at:

For the application of the provisions quoted above,

Express the wish that the actions carried out in continuation of this conference are committed on the initiative of the National chamber of judicial officers of Algeria in co-operation with the International union of judicial officers.

Algiers on February 12th, 2009