1st International Forum of the judicial Officers in Oran on 6-7 February 2010

Showing the Role of Judicial Officers

It is in one of the huge conference rooms of the Sheraton hotel of Oran that this event took place, gathering nearly 500 congressmen. The UIHJ was represented by its president, Leo Netten, its vice-president, Honoré Aggrey, its general secretary, Francoise Andrieux, its treasurer, Dominique Aribaut-Abadie, its 1st secretary, Mathieu Chardon, and by Rose-Marie Bruno and Anne Kérisit, honorary members and expert of the National school of procedure of Paris (ENP). The international aspect of this forum was given by the presence of speakers from Africa and from Europe. The National chamber of the judicial officers (NCJO) of France was represented at its highest level by its president, Jean-Daniel Lachkar, its vice-president, Jean-François Bauvin, and its vice-treasurer, Patrick Safar. Frédy Safar, past president of the NCJO of France also honored the forum with his presence. Pierre Tefnin, judicial officer, represented Belgium, Leo Netten the Netherlands and Manuel Rasao Marques, Portugal, as a member of the National chamber of Solicitadores. The African delegations consisted of Kokoé Gaba Dos Reis, president of the NCJO of Togo, Abdelaziz Fouganni, president of the NCJO of Morocco, Alain Ngongang, president of the NCJO of Cameroon, Honoré Aggrey (Ivory Coast), Abdelkader Boutebba and Chawki El Missaoui, respectively president of the NCJO of Tunisia and president of the regional court of the judicial officers of Monastir, Rosine Bogoré Zongo, president of the NCJO of Burkina Faso, Hortense Bankolé de Souza, president of the NCJO of Benin, and Moussa Dan Koma, president of the NCJO of Niger. The ENP of Paris was also present, in the person of its president, Jean-Michel Rouzaud.

The opening ceremony started with a short speech by Mohamed El-Bachir Mezghiche, president of the Regional court of the judicial officers for the western area of Algeria. After having welcomed the participants, Mr. Mezghiche recalled that Algeria was elected within the board of the UIHJ at the time of the international congress of Marseilles, in the person of Mohamed Chérif. Then, Ahmed Ali Salah, central director of Civil Affairs, on behalf of Tayeb Belaïz, declared that the judicial officer does not deal solely with enforcement and service of documents. He has other competences. “We want to show the main role which he plays, which is at the service of the Rule of law, the Law, consumers, economic agents and within new technologies” Mr. Ali Salah indicated. Then he greeted the work accomplished daily by the 1800 Algerian judicial officers who carried out more than 93% of the 108 000 decisions given in 2009 and this, thanks to the reforms undertaken between 1999 and 2009, placing the profession at the first world rank in terms of effectiveness.

The Judicial Officer at the Center of the System

Leo Netten observed that the various conferences organized by the National Chamber of judicial officers of Algeria showed the will of the Algerian judicial officers to promote in the Arab countries the occupation of private judicial officer inspired from the Algerian model. He indicated that Algeria had perfectly understood the need of the Arab League countries, Ohada, Africa and the whole world, in this economic crisis period: legal security. This legal security appears on three levels: legal organization of the States, laws of the State, and the aptitude of the States to guarantee the enforcement of legal decisions. The right to a fair trial covers the concept of reasonable time in the execution of legal decisions. If one wants to maintain the Rule of law, the processes of enforcement should be effective and equitable. To answer these requirements a specialized profession was essential: that of judicial officer, a private and autonomous professional. “Here is what the States in the process of modernization of their legal system offer” specified the president. For this reason the role of this judicial officer must be clearly defined by the law. “The example that the authorities and the judicial officers of Algeria provide us surely reveals the dynamics which characterizes them”. The UIHJ is conscious of the efforts made by Algeria in favor of the Rule of law, while placing the occupation of judicial officer at the center of the system. President Netten particularly thanked Fahima Khaldi, general secretary of the NCJO of Algeria, for the excellence of the organization of the conference. Then Mohamed Chérif, president of the NCJO of Algeria welcomed in his turn the congressmen and declared solemnly opened the 1st International forum of the judicial officers.

An Unfailing Will to Move forward

After the now traditional visit of the exposition, Fahima Khaldi gave the lecture of the preliminary report of the conference, with its four workshops.

The first workshop had as a subject the role of the judicial officer in amicable debt collecting and its impact. The chairman was Mohamed Sid Ahmed Djane, vice-president of the NCJO of Algeria. The 1st under-topic related to amicable debt collecting. The three speakers were Adbennour Boutouchent, barrister at the Supreme Court and at State Council, university lecturer at the University of Tizi-Ouzou (Algeria), Patrick Safar and Mohamed Bousmaha, judicial officer (Algeria).  The second under-topic treated of covering, with the presentations of El Hachemi Brahmi, adviser at the Supreme Court of Algeria, Anne Kérisit and Kokoé Gaba Dos Reis.

The 2nd workshop focused on the role of the judicial officer in the finding of evidence and of the goods of the debtor. It was chaired by Jean-Michel Rouzaud.  The first under-topic related to the role of the judicial officer in the finding of evidence. The floor was given to three speakers: Farid Maatougui, judicial officer, university lecturer at the University of Sidi Belabbes (Algeria), Dominique Aribaut Abadie and Alain Ngongang. The second under-topic related to the judicial officer and access to information. The three speakers were Rose-Marie Bruno, Manuel Rascao Marques and Honoré Aggrey.

The 3rd workshop (the judicial officer in the middle of economic activity) was placed under the chair of Honoré Aggrey. During the 1st under-topic, the three speakers, Abdelaziz Hadri, judicial officer, lecturer at the University of Mascara (Algeria), Frédy Safar, past president of the NCJO of France, and Jean-Michel Rouzaud, evoked successively the safeguard of the interests of the consumer.

The second under-topic dealt with the protection of the economy of counterfeit, thanks to Boucif Belhachémi, director of the National office of Royalties and related rights (Algeria), Pierre Tefnin, Abdelkader Boutebba and Chawki El Missaoui.

Lastly, the 4th workshop was devoted to IT. Mohamed Chérif chaired this workshop which consisted in four presentations made by Mathieu Chardon, Rosine Bogoré Zongo, Hortense Bankolé de Souza and Pierre Tefnin.

At the term of the presentations and many questions asked by the particpants, Françoise Andrieux presented a brilliant summary report which you will find hereafter.

Once again, our Algerian friends and fellow-members showed their unfailing will to go forward, in perfect harmony with their Official Authority. Indeed, did you know that it is not less than eleven meetings of this scale which are envisaged on a regional court scale of judicial officers of Algeria? For this reason, one could not too much recognize the huge work accomplished by Fahima Khaldi to ensure the perfect organization and the coordination of these conferences which aim at promoting judicial officers in Algeria, in Maghreb, in Africa, within the Arab League and everywhere in the world.

Summary report by Françoise Andrieux, General Secretary of the UIHJ

“The judicial officer: a Professional at the Service of the State, the Law, the Economy and Opened to Progress”

What a program! Who is this accomplished professional, present everywhere? How can he be at the same time at the service of the State, of the law, of the economy, while not losing an inch on the future...? Is it not presumptuous to be thus introduced? I acknowledge to have asked myself a few questions during the preparation of my presentation. But today, all my doubts are gone. Indeed, after having listened to the different speakers of this conference, what could be just an opinion contained in a title can now become for each of us a deeply anchored conviction.

If we understand correctly what was said, the judicial officer is a link of justice, if not THE final link, the actor without whom the legal play would be endless. Justice is a system, and any of its elements can have an influence on the others. Justice works towards ends, is organized to reach them, sets structures of execution, information and control, thus resting on a balance of which the judicial officer, while at its service, ensures the stability.

Today, the question is not proving the close connection between justice and economy, not only inside the borders of a country where the force of one gives power to the other, but also within the framework of the globalization of exchanges where stable and common rules of justice allow goods and services to trustfully circulate. The judicial officer is not at the centre of these concepts by accident.

If he is at the service of the State, the law and the economy, it is necessary to wonder why he was placed there. We then realize very quickly that in the countries where the judicial officer is the professional described throughout the seminar, we find a common denominator from which he draws his power: his statute.

Recalling the preliminary remarks of President Mezghiche, I thus chose to present the synthesis of this work under the federator angle of the statute: it is the stature which all at the same time channels and releases energies relating to our activities; it is the statute which organizes our profession and make it face all kinds of situations. The judicial officer is all at the same time a liberal professional, a powerful lawyer and a professional acting under the control of the public authority. His multiple tasks are largely focused on contacts. It is true that my task is simplified because, in Algeria, your statute is exemplary: not only it corresponds to what the UIHJ preaches (private, independent and liberal), but also it corresponds to what any private, liberal and independent judicial officer would wish: it promotes the multi-field aspect of the judicial officer and gives him the true monopoly of his core activities.

This lets foresee a duality which, far from dividing or breaking up our profession, makes its richness.  The total freedom conferred by this statute must be considered from two different angles: freedom of exercise and liberty of action. Let me explain myself: the statute gives us a solid base, subjects us to the supervision of legal authorities by granting us a piece of the public authority. It gives us a supervised freedom of exercise. On another side, and certainly thanks to this base, he acquires a certain flexibility which gives him the faculty to adapt to the economic and social evolution through his multiple activities. The liberty of action is consequently that of the activities of the multi-field judicial officer opened to progress.

How to characterize the status of the judicial officer? The status is the keeper of our force, of our quality. It enables us daily to ensure a balance between rights and duties. The status of the judicial officer could be presented as a tree, of which the roots are the service of documents and the enforcement, the trunk is the non-monopolistic activities prescribed by the statute, and the branches appearing from the trunk are all the other adjacent disciplines that the judicial officer would have the right to assert. We will summarize all the presentations we heard around these concepts while considering initially:

Then in the second time:

I. the professional judicial officer at the service of the State and the law: a freedom of supervised exercise framed by the firmness of the statute.

You are aware that this title contains in itself a paradox which would admit the contradictory idea of a kind of probation, a contradiction which would consist in occupying a freed but blocked profession? In truth, this is how judicial officers find their specificity, their legitimacy, or their relevance relating to their field of intervention. Obviously, the concept can appear complicated when one combines freedom of exercise and subordination: i.e. to comply with the law, a liberal professional who must justify his actions both to the creditor and the relevant official Authority, when required, being thus placed at the service of both. The liberal judicial officers control this substantive contradiction and turned it into a conceptual asset allowing them to fit the title of your forum: they enforce on behalf of the State under the authority of the law, and their submission is part of their statute.

They crown the principle that no one has other rights than always fulfilling their duties, thus preceding the Manichaeism which characterizes our profession: prerogatives and submission, liberalism and regulation. This enables them to be presented in the form of guarantors of the Rule of law and the strict application of the law. They are pledge of security and of guarantee, you told us, Mr. President of the UIHJ. Mr. Brahmi El Hacemi, adviser at the Supreme Court added to your remarks by specifying that the judicial officer is in the middle of the respect of the balance between the rights of the creditor and the interests of the debtor. The rule of law must apply and ensure standards and must thus have the means of maintaining law and order on its territory. The legal tool thus appears in the middle of the intervention of the State in the Rule of law.

One of the legal tools of the Rule of law is none other than the judicial officer, instrument of the respect of standards. He is there to convert the authority of a court order into a concrete reality. His double quality (public officer with the statute of a liberal profession) constitutes at the same time a pledge of independence, liability and effectiveness. Legal provisions would only be abstract proclamations of the existence of a right if Justice did not make sure of their effectiveness in the heart of society. The liberal judicial officer is conscious of carrying the responsibility for this effectiveness within which his finds his own blooming, both professional and financial. He fulfills a mission. But what is a mission? It is the pursuit of a higher target, a holistic direction - thus an accepted responsibility - rising in theory from terms and conditions, entrusted to an individual or a group in order to produce expected results.

Under the angle of his mission, the expected results of the judicial officer are the compliance with the law through the implementation of legal decisions. For that, he exerts coercive means. These means crossed the centuries, as Anne Kérisit pointed out, from the Visigoths to the judge of execution. This means they have adapted in the process to social and economic evolutions, in particular as regards forms of inheritance of debtors. Besides these means should be at the service of the judicial officer in all countries and Kokoé Gaba Dos Reis, President of the Togolese judicial officers, made us dream of a standardization of enforcement regulations through the example of Ohada. Can we actually make this dream come true for instance with a world code of enforcement? Isn't it so, Mr. President Netten??? Thanks to the forced enforcement, the judicial officer thus takes an active part in the good functioning of the justice system while affirming his capacity as a secure authority on the matter. It is about trusting professionalism: trust on behalf of the judge, trust on behalf of the creditor, and trust on behalf of the debtor. Mr Brahmi El Hacemi said it well: “all provisions on execution are based on trust”. From this point of view liberal professional offers all guarantees, in particular during the service of documents, in their mission relating to giving information to citizens where the judicial officer exerts, as indicated Mr. Maatougui Farid, an important role in the proof of the delivery of information.

But, just as easily, when it comes to forcing someone to respect his engagements, apart from any legal distraint, the judicial officer will also be present in a broad sense to implement covering of debts resulting from a contractual engagement and will implement the covering of these sums, thus exerting his core activity and his know-how, avoiding the lawsuit and helping reducing the courts backlogs by his actions. Patrick Safar describes the judicial officer as the natural agent of amicable debt collecting, even of all types of collecting. He was supported in this by Anne Kérisit. Here, in Algeria, Mr. Boutouchent recalled that the amicable debt covering, is not only registered in the activities of the judicial officer, but can also take its full place there since debt collecting agencies do not exist there. As Anne Kérisit pointed out, the training of the judicial officer, his statute, and his ethical rules guarantee the same treatment to all creditors and, at the same time, guarantee the rights of the debtor. Moreover, his deep knowledge of the inheritance of the debtor is likely to help the judge to decipher debtors' declarations.

Through the many contacts he has with all concerned parties the judicial officer can appreciate the opportunity to carry out a given procedure and thus avoiding useless expenditure to the claimant. For that he must have the necessary information to an effective and relevant enforcement. He must own accurate information, have access to various files of information, even if it is true that he can make his opinion of a situation while on the spot. This way, he can evaluate the solvency of a debtor as no other. But it is necessary that the set up means are really effective and allow him to pursue his mission.

We all acknowledge that we are not all equal when it comes to access to information and we strongly felt the skepticism and the disappointment of Rose-Marie Bruno as regards this effectiveness - even if she hadn't heard the developments of our Portuguese fellow-member, Manuel Rascao Marques, who mentioned the access of the Portuguese judicial officer to State databases. Anyhow, she had not measured her luck compared to the difficulties of African judicial officers who, as Honoré Aggrey said, do not obtain anything without fighting notwithstanding the help of the Ohada, in particular on the level of banking information. An influential element in all the fields of the social life, as mentioned by the director of the Civil Affairs, the mission of the judicial officer does not stop to the execution of engagements or the enforcement of legal decisions. As an element of legal security, he plays a part to protect people (citizens taken as law consumers, in particular as defined by Mr. Hadri Abdelaziz), to protect the goods and to protect all kinds of rights including intellectual rights as illustrated by Mr. Boutaba and Mr. Chawki. As such, he has a duty to advice, which completes the pallet of his activities, as underlined Jean-Michel Rouzeaud. His role can even go beyond and the judicial officer can become the mediator alleviating conflicts according to Freddy Safar.

The liberal judicial officer is a responsible and qualified professional. Agent of the trust of the legal institution, he must in all circumstances be worthy of this trust. The official supervision is then impossible to circumvent. The statute which confers on the judicial officer a monopoly is protective. It is a cocoon - but beware, this chrysalis should not prevent him from becoming a butterfly capable of gathering pollen and nectar from flower fields. Inside this cocoon, and whatever the concerned activity, impartiality, objectivity, honor, probity and delicacy will prevail, and will act as counterparts of the monopoly.

A profession whose activities are legally enacted must then consider that there lies its core activity, its base, and its starting point for the future by opening the doors of progress, of multi-field activities, to be at the service of economy.

II. The professional judicial officer at the service of the economy: a liberty of action permitted by the flexibility of the statute

Liberty of action means that the judicial officer acts freely. His statute enables him to extend his activities to other fields than his core activity and to have thus the faculty to adapt to progress. We presently evoked legal security. I would like to reconsider this concept that judicial officer is an element impossible to circumvent. How can the judicial officer become the actor of legal security?

Very simply because he holds a piece of the public power to carry out legal decisions, that he is responsible of his actions in front of its peers, that he acts under the control of an official Authority, that his liability is guaranteed towards citizens by the whole profession, that he has followed a thorough training course, and that he is a local lawyer close to citizens with whom he establishes a true local relation, according to the remarks of Rosine Bogoré Zongo. For all these reasons, the liberal judicial officer professional is an emblematic figure of legal security.

However the State must ensure that legal security ensures guarantee of investments and development of trade. “Establishment of the Rule of law and respect of freedoms encourages development, simply because economy needs legal security and freedom of trade”. Rule of law, legal security and economic development are then closely bound, thus widening the mission of the judicial officer. As regards his non-monopolistic functions, the judicial officer works for the guarantee of economic exchanges because he prevents or solves conflicts in particular by means of establishing and keeping evidence. As Alain Ngongang said, “all is evidence in his activities”. This assertion can only be illustrated through the statute of the judicial officer which confers the trust we mentioned.

The most significant document in the establishment of the keeping of evidence is, as recalled Dominique Aribaut-Abadie, statements of facts, of which she besides pointed out the origin: counterfeit and this since the 14th Century. Without going back there, Algeria very early understood the stakes of counterfeit when it introduced a system for the protection of royalties, as pointed out Belhachemi Boucif, a premiere in third-World countries.

As economic actors businesses use the law as much as they are ruled by it. They need the law as they need legal security, and the permanent evolution of their economic environment leads them to always ask for more of it. Via evidence and the rights of the judicial officer in this field, there is an obvious adequacy between economy and the law. The liberty of action of the judicial officer is turned towards results, the whole process being at the service of economy, as shows the counterfeiting procedures exposed by Pierre Tefnin. To develop international trade, it is necessary to use uniform conventional legal means suitable to ensure safety of exchanges and to put economic actors in a position to trust each other while at the same time giving them new means. This exchange is then the occasion for the judicial officer to play his part as regards new technologies.

It is also necessary to adapt and develop his activities to offer complete services to economic actors.

The judicial officer serves documents and informs, and this through legal paper (No, Mr. Chardon, I do not forget the nonverbal communication which is, as you mentioned, the first dematerialized support). For that, he keeps the necessary evidence for relevant and effective information. He then gives the recipient a choice. One can then consider his role through the decision theory which considers as information only what is likely to involve or modify a decision. It is thus vital to ensure the relevance of information, and to offer at the right time properly treated information circuits to enable the proper distribution to the right people. It is exactly the principle of economic intelligence which can adapt here to legal intelligence and where the judicial officer is the pivot through E-justice or networks of professionals who organize themselves on the Internet. I recall the example of Algeria which was exposed by Mr. Sekkache where the National chamber of the judicial officers highly encourages the use of Internet in offices of judicial officers.

The aim is a better service to the citizens. Thus judicial officer uses IT, or are ready to do so, as indicated our African colleagues Hortense Bankolé de Souza and Rosine Bogoré Zongo. The judicial officer reconciles on the one hand polymorphism and unity as a basis of his activities, tradition and modernism to communicate with citizens and reconciles on the other hand his core activity and the multi-field activities to ensure his future.

A thought of Pascal gets us straight into what can be called the philosophical intuition of the requirement of multi-field activities in our work: “All things being caused and causing, being helped and helping, being mediate and being immediate, and all being linked by a natural and insensitive bond which binds the most distant and the most different, I hold for impossible to know the parts without knowing the whole, either to know the whole without knowing the parts.” Let us say that Pascal was its incarnation, since he was at the same time or successively an erudite mathematician, a physicist, a philosopher and a mystic. From Pascal to the work of the CEPEJ, there is finally only one step, guided by the multi-field activities, which we crossed with Mathieu Chardon who evoked the Guide Lines of the CEPEJ, which define in Article 34 the activities of the enforcement agent:

These many activities should be engraved in the marble of our statute!

To be at the service of the State, the law and the economy, the judicial officer cannot escape some aspects:
 

I will end my presentation with adding that freedom of exercise and liberty of action will only find their expression because men and women who will constitute the heart of this profession will make it beat at the rate of each other's respect, whether a fellow-member, a customer, a debtor, a judge.... To beat, doesn't this heart precisely need an arterial surge gotten by diversification? And aren't we also convinced that all the described activities constitute the breath of life of judicial officers and that they are only effective because complete?

If I had so summarize the whole of the remarks of these two days, I would say that the judicial officer offers to the State, to the law and to the economy the qualities of a qualified professional, liable and efficient, able to project himself in the future. This consequently allows me to end these conclusive remarks in a way that I will qualify from now as traditional since it is the third time that I was honored to being entrusted with the task of presenting a summary report and that by three times I tried to answer the interrogation of a certain Jacques Isnard: “Is the essential indispensable?” Well, yes, the preceding speakers at the floor proved it: the judicial officer facing the State, the law and the economy is an essential and indispensable element.