An abnormally restricted field of intervention of the judicial officers
The 47 Slovenian judicial officers are appointed by the ministry of Justice. They exert in an individual liberal form, association not being allowed. They are subjected to a very strict regulation.
Contrary to their European counterparts who also exert in a liberal form, the Slovenian judicial officers have very limited competences: they can carry out only the seizure and the sale of tangible movable goods, as well as some procedures relating to eviction, resumptions of children...
Within the framework of the seizure of immovable assets, the judicial officer is only entitled to draw up a report of the location of the goods, and only when the seized building is not registered on a land register.
The other procedures are conducted by the judge: seizure of remunerations, seizure of the intangible assets (which includes the banking assets), seizure and sell of immovable, special seizure...
The Slovenian judicial officers are not entitled to exert any parallel or related activity, such as amicable or judicial debt collection, statements of facts, voluntary auction sales, legal advice, etc.
The enforcement procedures, including attachment of tangible movable goods, are entirely controlled by the judge. In the framework of their activities, the judicial officer appear more as a pawn activated by judge - pawn on which however weighs a heavy liability -, than as a respected lawyer, truly independent, and in charge for the whole of the implementation of the civil enforcement procedures, as it is the case in the majority of the States of the European Union.
Only the judge can grant terms of payment to the debtor. When the creditor obtains a judgement in his favour and wishes to enforce it, the judge, at the request of the creditor, initially carries out an attempt at seizing the banking assets of the debtor or his salaries between the hands of his employer. The clerk's office carries out research - tiresome and empirical - to discover the bank of the debtor by questioning by mail all the banks. In the event of failure of these procedures, the creditor asks the judge to appoint a judicial officer to proceed with the seizure and the sale of the tangible movable assets belonging to the debtor. The creditor can expressly ask for the appointment of one particular judicial officer but this possibility is used little by the citizens who generally let the judge decide on the judicial officer. The judge then appoints him in an autonomous enforcement writ.
Unfounded criticisms against the profession
The first problem with which are confronted the Slovenian judicial officers is due to the mode of distribution of the cases, at the discretion of the magistrates. According to our sources, less than a handful of judicial officers are been allotted the majority of the files (thousands) while the others, who receive only a few of them, are today threatened with bankruptcy. The official reason of this strange distribution is a so-called effectiveness of these offices. However - it is the second problem - the judicial officers are reproached their delay in the execution of their mission. But these reproaches delay actually seem caused by two factors:
- The judicial officers who receive the majority of the cases are actually overloaded and penalise, in the statistics of the ministry for Justice, the profession as a whole;
- Many possibilities are offered to the debtors to delay and dispute the procedure of seizure and of sale of the movable goods in front of the judge who is overloaded and can rule only at the end of several months, thus paralysing the procedure.
The third problem relates to the amount of the enforcement fees in the case of the intervention of a judicial officer, notwithstanding the existence of a tariff. However, it seems that it is the system of consignment and payment of the costs of enforcement proceedings for the benefit of the judicial officer which must be blamed here. The law provides that the judicial officer can request an advance payment from the creditor for the expenses to intervene. The payment must be made at the clerk's office of the court on behalf of the judicial officer who will be able to claim it only at the end of the procedure. Actually, this system is criticisable at least in two ways. On the one hand, the expenses bill is subjected to the control of the court. This provision is singular if one considers that the judicial officer is a liberal professional and that he must often wait more than one year after the end of the procedure before perceiving his remuneration, mainly because of chronic administrative backlog. In addition, the creditor can dispute the expenses engaged near the court which will then decide of the remuneration of the judicial officer. Numerous creditors do not hesitate to use this effective means to distract with impunity a part, sometimes even the totality, of the wages of the judicial officer.
Projects going against the evolution of the profession
In addition the attitude of the authorities towards these matters seems curiously detached. The authorities seem to stigmatise on the profession the inefficiency of the enforcement system in general, and the backlog in the treatment of the enforcement cases in particular, without taking into account the factors evoked above.
Besides, judicial officers are not the only concerned profession. The Slovenian notaries recently saw themselves deprived of a part of their activities, in as much as that some of them claim today the enforcement on immovable.
In fact, the ministry for Justice is closely interested in the system and the legal institutions of Germany and Austria, Slovenia being fundamentally attached to the Germanic culture. But in these two countries the fate of the judicial officers is not an enviable one. They do not enjoy any consideration from the authorities or from the public, and they aspire to only one thing: to adopt a liberal statute, to release themselves from the yoke of the judge or Rechtspfleger and to act in all the fields of enforcement, like the other European enforcement agents.
A program financed by the European Commission was set up in December 2005. It is entitled “the elimination of Court backlog: the Lukenda project ”. This program is based in particular on a study currently in hand and whose results will be known at the end of 2006, concerning the German, Austrian and Dutch systems, in particular relating to the enforcement of court decisions and the profession of judicial officers.
While waiting, a legal reform - the 5th one - is set in an incomprehensible way to reduce the qualification of the Slovenian judicial officers, considered to be currently too high (!) in favour of only level V (A level). It is astonishing to consider that a State would deliberately choose to lower the level of a profession. Lastly, as a paradox, whereas the majority of the Slovenian judicial officers complain of a lack of cases, the appointment of 200 additional judicial officers is put on the agenda! These measures, if implemented, would immediately put in danger the whole profession such that it exists today.
These abyssal projects go diametrically against the evolution of the occupation of judicial officer and would be a drawback for Slovenia in the field of enforcement of court decisions as regards the construction of a European area of Justice. Macedonia has adopted a few weeks ago a system of liberal judicial officers inspired by the Dutch model and where the latter have a particularly broad sector of intervention. In Romania, the system, based on a French model, already has existed for several years and it has been set up in Bulgaria for a few months.
The experiment of the other European countries where the judicial officer exerts in a liberal form tends to show that if the system of enforcement of court decisions does not give satisfaction as Slovenia, it is precisely because of the lack of capacities and independence of the Slovenian judicial officers.
It is in this threatening context that the delegation of the UIHJ, consisting of its president, Jacques Isnard, and its first secretary, Mathieu Chardon, was received by the president of the supreme Court of Slovenia and by the ministry for Justice, before giving a press conference and meeting nearly all of the judicial officers of Slovenia, brought together in extraordinary general assembly.
Which harmonization for the occupation of judicial officer in Europe?
The delegation was initially received by Mr. Franc Testen, president of the Supreme Court of Slovenia. Jacques Isnard thanked the president of the High jurisdiction for his reception and presented the UIHJ as well as the objectives of the mission with regards to the current situation. Mr. Testen, who very attentively listened to the arguments developed by the president of the UIHJ, specified that, for any magistrate, the enforcement of court decision is not the business of the judges and harms his prestige, but that he had little influence on the legislative process even in the field of justice.
In his presentation of the current situation in Slovenia, Mr. Robert Marolt, State Secretary, gave a report on the important backlog of cases in front of the jurisdictions, by specifying that 80% of the hanging decisions before the European Court of human rights relate to the un-enforcement of the Court decisions. Mr. Marolt presented the major project of the Ministry of Justice set up in December 2005 destined to eliminate the backlog. This project has two objectives. The first aims at setting up a central information processing system which will make it possible to monitor closely the procedure of enforcement and will lead for the functioning of Justice to be proceeded by electronic way. The second objective consists in analysing the procedure of execution in the Netherlands, Austria and Germany to seek a model of which to lead to the most effective possible system. These improvements have only one goal: a faster, more effective and less expensive procedure for the citizens. Mr. Marolt added that Slovenia has been a member of the European Union for only two years and that it is naturally concerned with the international and European relations where enforcement is of primary importance as well as with investors.
After having thanked the State Secretary and his collaborators to have taken some of their time to receive the delegation of the UIHJ, Jacques Isnard, specified that fifteen years ago the UIHJ was in relation with the Slovenian authorities to propose a change in the profession. “At the origin, said the president of the UIHJ, It was acted to set up a profession with a much wider statute in terms of activities than that which exists today. We wish to see up to what extend we can broaden the activities of the judicial officer in Slovenia. We attach a great importance to what occurs here, because of the geopolitical place of Slovenia which is the first country of the former Yugoslavia to have adopted a liberal model and is an example for the other countries of the region. We think that it is necessary that there is an effective service of justice in Europe, with judges whose role is to give judgements, but not another thing, with lawyers to defend the parties, and a true profession specialised in the enforcement of court decisions. This is essential for the development of a European system, for a better economy, and to fight against corruption and dirty money. It is necessary that the judicial officers are efficient”. Jacques Isnard indicated that the UIHJ defended throughout the world the principle of a judicial officer centred around four fundamental criteria:
- liberal and independent
- equipped with a high level of legal knowledge (4 years law degree)
- having an ongoing training
- having a full liability
Within the framework of the activity of the judicial officers, added the president, lies the totality of the realisation of the civil procedures of enforcement, in the spirit of the recommendation Rec (2003) 17 of September 9 2003 of the Ministers the Council of Europe to the Member States. On the 27 States which will soon form the European Union, there will be 19 States gathered around the evoked objectives. The president of the UIHJ did not hide his surprise when Mr. Marolt indicated to him that the Slovenian authorities were closely interested with the systems of enforcement in Germany and Austria. It is known that the German judicial officers have taken position a long time ago to turn to a liberal system and to obtain extended scopes of activities, and that the Austrian judicial officers complain each day about their not very enviable fate compared to that of the judicial officers of the other European Union countries.
At the end of the meeting, president Isnard proposed the organisation of an international conference in which several countries could intervene to evoke the situation in various countries, of which Austria and Germany. Mr. Marolt indicated that the ministry of Justice stood ready to study all the analysis and results of the conference. For as much, Mr. Marolt stressed that Slovenia was closer to the Germanic law and that the twinning, which would finish at the end of the year, would bring the solutions which would be implemented soon, the Austrian and German models remaining those of reference.
The plenitude of the execution
After these exchanges of views, marked with respect and a very great courtesy, but at the very least divergent, the delegation answered the questions of eight journalists about the UIHJ and the current situation of the judicial officers in Slovenia. Among the questions appeared that of lowering to come of the level of education of the Slovenian judicial officers whereas the European standards tend on the contrary to its rise. Jacques Isnard declared that the current project is not in direct and satisfactory relation compared to the European standard which is currently set up and which envisages four years of legal studies, followed by two a two years training course and a professional examination. The president of the UIHJ insisted on the fact that, for questions of legal safety, one could not elude the standards which are set up on the basis of such works as The Hague Conference on International Private Law, the European Commission, the Council of Europe, the European Court of human rights or as international organisations like the UIHJ.
On the same subject, one of the journalists asked who, among the judicial officers of the three countries being the subject of the study of the ministry for Slovenian Justice, had authority in the capacity as lawyers. Mr. Isnard indicated that on the three countries only the Dutch judicial officers were lawyers. He specified that if, for the moment, no law degree was required from judicial officer in Austria or Germany, as soon as Germany would adopt a liberal model for the judicial officers, it would also choose, as a corollary, to quickly impose a law degree to comply with the European standards and not to place the judicial officers of this major country in a situation of inferiority compared to their European counterparts.
Lastly, the president of the UIHJ also explained that today the basic standards of the European judicial officer call with the plenitude of the enforcement measures for this profession.
The UIHJ standing by the Slovenian judicial officers
The visit of the UIHJ ended on a positive note with its participation in the extraordinary general assembly of the national Chamber of the judicial officers of Slovenia, called by Tatjana Krivec Tavčar and in which 37 of the 47 judicial officers took part. At the time of this meeting, Jacques Isnard and Mathieu Chardon could take the measure of the unity of the Slovenian judicial officers in front of the adversity and their faith in the future of their profession.
The president of the UIHJ thanked Mrs Krivec Tavčar for the work achieved for the defence of the interests of the profession. He also congratulated his Slovenian fellow-members for their courage and acknowledged their solidarity. He concluded, under a row of applause: “One cannot imagine the implementation of a European system without judicial officers. The judicial officer is an economic actor. Where he does not exist, there is no legal safety and the investors do not come. On five European instruments, four touch the occupation of judicial officer. One should not stick to the current situation. We always overcame the problems. You will surmount the obstacles and you will end up obtaining the same prerogatives as those of your European fellow-members. For that, you can always count on the UIHJ”.
