This meeting took place in the framework of the European Commission for the Efficiency of Justice (CEPEJ), which was holding its 3rd plenary meeting from the 9th to the 11th of June 2004 in Strasbourg. The UIHJ was heard by this commission in its capacity of observer and the text below relates part of what passed between the two parties.
UIHJ: an influence that crosses borders
A very large majority of the member countries of the Council of Europe are represented within the UIHJ, and this is particularly true for several Eastern European countries or countries that were formed after the collapse of the Soviet Union. The UIHJ brings together national associations or national chambers of enforcement agents, be they independent professionals or state employees, from nearly 60 countries around the world.
A relationship of cooperation has been established between the UIHJ and the Council of Europe, which calls upon certain of the members of the UIHJ to perform expertise tasks in various countries. It is in this context that experts, members of the UIHJ, recently accomplished missions in Albania, Bulgaria, Georgia, Moldavia, and Russia, and the UIHJ is a partner in the project of establishing a European Enforcement Training Centre (EETC) in Bulgaria. The UIHJ intends to actively pursue its collaboration with the Council of Europe and to provide the support of its experts to assist in the development of the objectives of the Council of Europe.
Outside of Europe, the UIHJ is intensifying its work in the African continent where it is largely represented, but also in South America where there is a great demand for the competences of the UIHJ, and more recently in Asia with a mission in Thailand.
The efficiency of justice
The UIHJ feels particularly concerned by the efficiency of justice, since it sees itself as a representative of the concept. Its members feel a certain affinity with any person implicated in the legal proceedings, who is in a sense a ‘consumer of justice'. Therefore the enforcement agents who belong to the UIHJ are well aware of the expectations of those implicated in the proceedings, be it the plaintiff or the defendant in the trial. The role of the enforcement agent comes into play upstream of the trial, in the institution of the trial, but also in the enforcement of the decision pronounced. As a result, enforcement agents are very aware of the citizens' expectations, and of their feelings about justice.
In its capacity as a body representing enforcement agents and other types of judicial officers from most of the member countries of the Council of Europe, the UIHJ is a privileged observer of the efficiency of justice. The UIHJ represents the interests of one of the professional parties concerned and is therefore directly involved in the efficiency of justice.
Informing the implicated persons
The task of informing the implicated persons is essential in satisfying the conditions required for a fair trial. Equally, the UIHJ campaigns for complete, secure, rapid and high quality information.
The amount of information provided for the citizen -‘consumer of justice' is considerable, and this can sometimes have a negative effect on the quality of the information. Therefore the citizen may have difficulty in identifying the essential elements of the information and what is important for his particular case. It is nonetheless necessary to continue to consolidate the information, but at the same time it is imperative to ensure that the information concerning the rights and obligations of the implicated persons is perfectly legible and comprehensible.
The UIHJ considers that, in terms of the institution of the proceedings, the knowledge of the judge's decision and of the possible appeal procedures, or the knowledge of the approach of an enforcement procedure against the sentenced debtor, the best way to inform the implicated person is through a direct meeting between the enforcement agent and the implicated party.
For the UIHJ, personal notification of the legal documents should be favoured above notification by post which contributes, regardless of the form that it takes, to relaying a confusing message that the legal information is banal.
Notification allows the enforcement agent to complete the procedure of informing the implicated persons, by guiding them and giving them the necessary advice without, however, encroaching on the representative competence of the lawyer.
In contrast, in the case of notification by post, the postal employee delivering the documents is incapable of providing the slightest information regarding these documents since he is unaware of the content. Moreover, acknowledgement of receipt does not make it possible to identify precisely, even when it requires a signature, the person receiving the information. Furthermore when documents requiring acknowledgement of receipt are sent the acknowledgement is not always returned quickly enough. Finally, it is impossible to know whether the implicated person has fully understood the information that he has been sent.
Notification by the legal agent in charge of the case, the enforcement agent or any other judicial officer allows the judge to be informed of the conditions under which the documents were put in the hands of the implicated person, which therefore allows the magistrate to know whether the conditions for a fair trial have been satisfied and whether the rights of the defendant have been respected. This is essential in the event of the transferral of documents from one country to another to ensure the credibility of the European enforcement order that is to take effect within the European Union.
Developing simplified procedures
The UIHJ has noted that, in the matter of debt recovery, a very large majority of cases are of a contractual nature and therefore tend not to be contested. It is mainly cases of people encountering passing difficulties in making their payment or cases of negligence that are at the root of failure to pay debts. These cases have the peculiarity of representing a low average sum but of being very frequent. It would therefore be appropriate to promote simple, quick, and easily accessible procedures through which the citizen could obtain a decision by court order rapidly. However, rapidity must not under any circumstances undermine the need for controls, so as to avoid unorthodox requests (which could flourish in the absence of controls) or legally unfounded requests.
The UIHJ considers that the Injunction to Pay procedure, according to the French model, which guarantees a prior control carried out by a judge, is preferable to the German model whose mechanical character and absence of prior control by the judge fails to truly guarantee the rights of the defendant, who is therefore hypothetically at a disadvantage.
Hence the UIHJ considers that the presence of a judge charged with the task of checking the validity of the request is indispensable, and this upstream of the pronouncement of the decision, if we want to use this simplified order as a European enforcement order. It is well worth raising these issues with the countries concerned, even those that are not members of the European Union.
The UIHJ also considers that, within Europe, it is important to promote a means of allowing a legal decision to be obtained rapidly, the moment that the case presents an obvious degree of urgency that can be checked. However this decision must respect the contradictory character of all cases that allows the opponent to present his arguments, but within a short specified time period.
The efficiency of justice and the status of the enforcement agent
The UIHJ campaigns for an independent status for enforcement agents worldwide, a status that is indispensable for a reliable, fair and efficient legal system.
The UIHJ also works towards the harmonisation of the tasks attributed to enforcement agents, particularly within Europe, and it is in favour of the creation of a European enforcement agent.
The UIHJ considers that it is only through the establishment of this independent status that we will succeed in harmonising the status within Europe. The independent nature of the function, which exists in several countries, must prevail over the status of an agent employed by the state. Indeed the UIHJ considers that an independent status brings a greater value added than the status of state employee and it is also less costly for the State.
An enforcement agent employed by the state depends on his hierarchy, and in certain countries this hierarchy has such power that it gives the orders to enforce legal decisions, which is unacceptable in a constitutional state. Generally, an enforcement agent who is employed by the state works under the tutelage of two ministries (justice and finance), which does not facilitate his task. Finally, the issue of career advancement for an enforcement agent who is employed by the state can lead to a lack of independence. In addition, the need to maintain a sufficiently large number of state-employed enforcement agents in the States can conflict with strictly controlled budgets. States are constantly looking to decrease the financial expenses needed to run the State, and the adoption of an independent status represents a notable means of saving public funds for the States.
The independent status results in increased independence and responsibility, and consequently the enforcement agent is responsible from both a penal and a civil standpoint. He is independent from his client from the moment that he is a jurist, and responsible, and he will refuse to support or participate in any illegal cause. The enforcement agent must have the responsibility for managing the enforcement measures, in total independence, particularly in relation to the judge, but the latter will nonetheless be able to carry out controls regarding the work of the enforcement agent. The responsibility of the enforcement agent must be engaged should he contravene either of the two basic principles that should guide his actions, which are the proportionality of the action taken in relation to what is necessary and the objectivity required for the performance of his tasks.
The efficiency of justice and the training of professionals
The UIHJ campaigns for a high level of legal training for enforcement agents throughout the world, which is a factor that contributes to legal security and consequently stability. But this conviction is true for all professionals who participate in the workings of justice. Concerning the enforcement agent, he must have, in those countries where this is not yet the case, the same level of training as that of a judge or lawyer. Effectively, alongside the latter two figures, the enforcement agent completes the three links in the chain that are necessary and indispensable to the trial (the judge decides, the lawyer represents, the enforcement agent enforces the decisions).
To fulfil this objective, the UIHJ organises or contributes to a great many seminars and symposiums and also participates actively in the creation of training centres in the countries in which it is established.
So it is that in Africa, in the countries in the Ohada (Organization for the Harmonization of Business Law in Africa) zone, each year it organises several actions relating to the training of African enforcement agents. The same is true in the Eastern European countries (e.g.: Poland, Hungary, etc.) where there is an important need for harmonisation. Similar actions are underway or will be set in motion in the Maghreb countries (Tunisia, Morocco and Algeria).
For the UIHJ, it also seems necessary, with a view to ensuring a more efficient justice system, that continued training of legal professionals in the same way as for enforcement agents and other judicial officers should be obligatory, according to modalities that could be harmonised within Europe in terms of the recommended duration (e.g. a certain number of hours per year).
Discipline and checks on professionals
The tasks of legal professionals are of such importance that they should respond to qualitative standards of the very highest level. This implies, in addition to training, that the ethics and discipline of all those who work in the domain of justice (judge, lawyer, clerk of the court, enforcement agent, etc.) should be subject to controls. The efficiency of justice requires the protection of the persons implicated in legal proceedings against any errors that could be made by the legal professionals, and the reparation of any such errors, and therefore the indemnification of the victims.
The UIHJ recommends a double control. At the professional level, a discipline and ethics committee, made up of members of the profession in question, which would ensure a disciplinary and ethical control of the members of the profession, armed with an array of appropriate sanctions. At the extra-professional level, for more serious cases of contravention of the professional and ethical rules, a judge should be responsible for sanctioning, as necessary, the behaviour of professionals who do not respect the rules or their deontology. These sanctions may extend as far as definitively banning a professional from exercising his activity. Any person implicated in legal proceedings who feels wronged by an action performed by a professional, as a result of a fault or an example of misconduct by the latter, must have direct access to the disciplinary and control bodies. However at the same time it is also important to avoid abuses that could generate eccentric or unfounded requests...
The priority objectives for UIHJ
Respect for time constraints, complete information for the person implicated in the legal proceedings as well as quick and fair enforcement of legal decisions are the priority objectives that the UIHJ intends to achieve. The UIJH can but be encouraged by any progress made in this direction, which will contribute to making the justice system more efficient in real terms as well as in the way that it is regarded by the citizen -‘consumer of justice'.
Finally, the UIHJ repeats that it is and will remain ready to cooperate with the Council of Europe on all issues of a legal nature concerning the justice system and legal decisions in general, and enforcement agents in particular. The UIHJ will accept any invitation to participate in consultations or hearings or any request for expertise in these domains.
