Justice is Meaningful only if Court Decisions are Enforced
Before a wide gathering at the heart of the magnificence of the Grand 'Chamber of the French Supreme Court, speakers took the floor throughout the day after the opening remarks of First President of the Court of Cassation, Vincent Lamanda, who recalled that the Rule of Law only deserves this qualification if it organizes the enforcement of legal decisions.
Ghaleb Ghanem, chairman of the Association of Supreme Courts of Countries Sharing the Use of French (AHJUCAF), recalled that the organization had two objectives:
- Promote mutual assistance and cooperation between legal institutions members
- Promote the role of high courts in the regulation of court decisions and law harmonization of member states.
Martine Anstett, representing the International Organization of the Francophone World spoke of the meeting which took place in February 2008 between the ministers of justice of the Francophone World and where the following goals emerged:
- Improving quality of justice;
- Reducing delays;
- Achieving full enforcement of court decisions.
During the first panel on Enforcement of Criminal Sentences, Jacques Mayaba, President of the Judicial Chamber of the Supreme Court of Benin declared that justice exists and is meaningful only when its decisions are enforced. During his speech, he raised the issue of enforcement of criminal judgments in Benin and wondered about the effectiveness of the enforcement of criminal judgments in this country.
Jacques Buisson, advisor to the Criminal Division of the French Court of Cassation, declared that France shares similar concerns with Benin, given the legal affiliation between the two countries. In France, he said, criminal enforcement has long been neglected by scholars and practitioners until it was recognized that the enforcement of sentences commanded the credibility of the criminal justice system. So he welcomed the arrival in France of a true legislative policy aimed at improving the enforcement of criminal judgments.
To close this first part, Pascal Turlan, advisor to the International Criminal Court, recalled that international criminal tribunals were created to respond to a lack of effectiveness of legal norms (the First Criminal Court was established by the Rome Treaty in 1957).The powers of the International Criminal Court concern the purely administrative measures and extend to arrests and summons. States have the duty to cooperate with the Court, which can be problematic given their commitment to their sovereignty.
The second roundtable on the enforcement of civil decisions then took place. Ghaleb Ghanem, First Honorary President of the Court of Cassation of Lebanon, shared the Lebanese experience which sees the execution of its judgments entrusted to an Enforcement Bureau. In Lebanon, the basic principles of enforcement are based on respect for the idea of speeding up enforcement, the un-scattering of statutory powers, which entrusts the broadest powers to the Head of the Enforcement Bureau and the introduction of strict conditions regarding the attachment of real estates. Finally, he emphasized on how reality on the ground could be difficult, especially when political situations and war mingle or influence the judiciary.
Jean-Louis Gillet, General Secretary of the AHJUCAF, developed the French experience. Enforcing, he says, can be understood strictly through a full application or can perceived in a more flexible way without neglecting the relationship of power existing between the creditor and debtor, which can lead to a negotiation, because the court case, even when it is ended, is the concern of the parties. In both cases, he said, the decision shall be operative. The principles of execution in France are simple but its implementation is more complicated, he asserted. Also, we should approve the existence of the enforcement judge who understands, interprets the decision and thereby gives it its full power.
The Judicial Officer Ensures the Enforcement of the Court Decision
Francoise Andrieux, Secretary General of the UIHJ, was entrusted with the task to share the African experience. Our colleague painted a quick portrait of judicial officers in the OHADA zone because, she stated, one cannot speak about enforcement of judgments without knowing the profile of this key professional: the judicial officer.
At first she spoke of the difficulties in applying the general principles of the Uniform Act relating to enforcement, difficulties arising both from legal and African tradition.
Then she showed some examples of obstacles to enforcement. She ended her speech by recalling that the judge says the law and the judicial officer enforces the court decision.
"The principle of legal Security shows in the separation of powers between the judge who says the law and the judicial officer who must ensure the implementation of the decision. The concepts of Rule of Law and Legal Security are linked. The state provides legal security, but the judicial officer is the pivot ".
The third part concerned the implementation of judicial decisions by public authorities. Fabrice Hourquebie, professor at the University of Bordeaux IV (France), indicated that the French legislator has reinforced the administrative judge to assist in the execution of judgments and that, through the compliance of the administration to the judge's decision, there is an obligation to perform an administrative court decision because, in principle, there is no ground for being exempted from the enforcement of the decision.
Jacques Leger, advisor to the State Council in France, confirmed the interest of the execution of administrative decisions by referring to the growing number of requests made to the State Council and the need to increase the number of administrative judges.
The final roundtable concerned the enforcement of judgments in Africa and Europe. Anthony Oliveira, president of the Common Court of Justice and Arbitration of OHADA, specified that the decisions of the CCJA circulate without exequatur in the countries of the OHADA area.
This court is the supranational supreme judicial organ. First instance courts and courts of appeal however remain within member states. Enforcement of court decisions is achieved through various measures. The most common and the most used is the attachment on debtor's bank accounts as by tradition that there is little enforcement on immovable in Africa.
Natalie Fricero, professor at the University of Nice Sophia Antipolis (France) and member of the Scientific Council of the UIHJ, closed the work by addressing the enforcement of decisions of the European Court of Human Rights. There is experience of protecting human rights, she said, and the principle is that a citizen will attack a state that has violated these rights. This will result in two types of judgments:
- The state will be ordered to comply with European standards;
- The convicted State must undergo a fair satisfaction (that is to say, pay a sum of money).
But, she emphasized, to be effective the system requires that the states abandon their sovereignty. For that, there are sets of legal and political mechanisms:
- Legal: with the principle of authority of a judge by the European Court of Human Rights.
- Political: the control of the enforcement by the Committee of Ministers of the Council of Europe which has political control by conferring in " Human Rights Meetings " and the principle of transparency of the democratizing execution via the website of the court by statistics that track the level of conviction and execution of countries.
Natalie Fricero concludes that the implementation of decisions of the European Court of Human Rights is a regional example of highly efficient protection of human rights but that this court is a victim of its success because it is currently overwhelmed by requests: a proof of its usefulness and effectiveness among litigants.
