This great international symposium was organized by Ioan Les, Dean of Faculty and member of the Scientific Council of the UIHJ. Many experts and theorists took part in the conference, in particular professors of the universities of Cluj, Iasi, Oradea, Tg.Mures and Sibiu, Jacques Isnard, president of the UIHJ and Adrian Stoica, assistant treasurer of the board of the UIHJ, or Eugen Huruba, director of the Training center of the judicial officers of Romania. Among the subjects presented by the judicial officers, we present you the full text of the intervention of Jacques Isnard on the topic of the statute of the judicial officer in the world.
Contribution of Jacques Isnard, president of the UIHJ
The Statute Of The Judicial Officer In The World
Before approaching the statute of the judicial officer, let us speak about this profession whose difficulty is precisely to identify its actors. Indeed, unlike notaries or lawyers of which the name, except for some alternatives, take on a common international phonetism, ex: notary, notaïo, notar... lawyer, avocatto, advocat,..., the judicial officer appears under very contrasted names:
- Huissier de justice (the term comes from huis: that is to say guard and of huis, usher, guard: that is to say guard at the doors) in France, Belgium and Luxembourg,
- Sheriff, Bailiff, Enforcement agent in England,
- Gerichtsvollzieher in Germany,
- Kronofogdemyndigheten in Sweden,
- Ufficiali giudiziari in Italy,
- Komornik in Poland,
- Executorii judecatoresti in Romania,
- Etc.
This evocation would only be anecdotic if it did not already outline the contours of the disordered architecture of our profession. Moreover the subject itself “the statute of the judicial officer” is enough to raise the slightest doubt: indeed, strictly speaking there is not one statute of judicial officer, but “various” statutes of judicial officers and, must we add, of enforcement agents. In so far as these differences remain, a bond links these professionals, that of the enforcement of legal decisions and other enforceable titles. Whatever the name conferred to him in an existing given political or social State, judicial officers or enforcement agents are strong elements of the legal chain. Voluntary enforcement exists only in the mind of idealists, because no culture, no religion, or no philosophy never managed to create the perfect being. It is necessary thus to resign to the idea that voluntary enforcement is finally only a myth, and only constraint can overcome resistances. To conclude such a task, since the oldest times, there exists a professional, the enforcement agent or the judicial officer (I), whose perimeter of activity as well as the extent of his capacities fit within the framework of a statute (II).
I - The Enforcement Agent And The Judicial Officer
The enforcement agent is a civil servant of the State ensuring the public service of the enforcement of decisions and enforceable titles. His action is generally circumscribed with this sole prerogative. The judicial officer is a liberal, private and independent professional who holds the monopoly of enforcing judgments and other enforceable titles under the terms of a delegation of public power conferred to him by the State. His mission is a public service mission attached to the administration of justice. Let us describe in details the elements which characterize these two types.
A - The Enforcement Agent
1 - A Binding Authority
The enforcement agent is generally governed by two provisions: a traditional one, concerning the statute of civil servants, and another, more specific, referring to his professional qualification and his functions. In some countries enforcement agents are attached to several ministries. Sometimes they even depend on the Supreme Court. In Scandinavian countries, in Sweden, up to a recent time, judicial officers were attached to the ministry of finances and the ministry of justice. In Italy, Germany and Austria, they only depend on the ministry of justice. In Spain or Kazakhstan, they are subjected to the authority of the judicial power.
2 - Access Terms To The Functions
The value attached to the function of enforcement agent is measured with reference to the place he has in the framework of the service to which his is attached. The cursor, on a value scale, varies from basic agents to highly ranked civil servants. In Scandinavian countries the enforcement agent (Kronofogdemyndigheten) is a high level civil servant equal to the legal body. In Germany he is recruited among the legal body after a special examination. In Spain and Austria, he is a civil servant of lower category.
3 - Dependence Towards A Higher Level Agent
Naturally the enforcement agent is subjected to the supervision of a whole hierarchy which comprises ranks extending from the category of auxiliaries to that of national enforcement director (Sweden). But the hierarchy also extends through the capacity of the judge who has a total authority on the agent (Austria, Spain). In Germany, the system is particular. Indeed, the judicial officer profits from an original mode which confers him a great liberty of action. Thus while being civil servant the German judicial officer can install his office in a private place and employ staff. In compensation, he perceives a State allowance coming in addition to his salary. The judicial officer depends on the county court and divides his activity with a kind of super clerk who is the Rechtspfleger. Sometimes execution is directly allotted to the Judge. It is the case in Spain where the Judge is in theory the only person able to carry out enforcement. But obviously it is hard to imagine a member of this legal body dealing with climbing staircases of buildings to attach furniture. Under these conditions the Judge can delegate enforcement to court employees called “agentes”. Besides, enforcement in this country takes a completely irrational form since it requires the presence in addition of the debtor, of the agente (enforcement agent), of an official representative of the judge and of a Procurador (who represents the creditor). The principle of an execution reserved to the only Judge is a Spanish cultural specification since it is also found in Cuba and probably in other Hispanic States.
4 - Other Forms of Intervention
•••Military
The inconsistency of systems where enforcement strictly concerns the service of the State is not limited to these few examples. This presentation must be completed by disturbing participants under the appearance of paramilitary or private elements. In Russia, judicial officers are subjected to a true military regime while being equipped with large gauge weapons. Moreover the use of uniform by enforcement agents in former Soviet Republics is rather frequent (as in Kazakhstan).
•••Private
They are existing particular cases in particular in Canada and the United States where participants titular of an administrative authorization (license) are allowed to proceed, on warrant of a judge, with certain specific acts of execution (repossession of pledged equipment, trucks, vehicles, boats...).
•••Police officer
Very occasionally the police force exerts missions of execution of civil matter, either on a principal basis because judicial officers do not exist, or because the law of the country prescribes for the police force to proceed to such actions. Among the Member States of the UIHJ, none of them uses the police force on a principal basis for enforcement in civil matter.
B - The Judicial Officer
1 - Admission Requirements
The occupation of judicial officer is governed by a set of provisions which mainly appear in his status. The professional liberal and independent judicial officer is appointed by the Minister for justice at a given location. The nomination intervenes after the candidate has met the conditions of exercise required by law. Access differs from a State to another. In France a Master 1 Law degree is necessary as well as a two years training course and a national professional examination. These criteria correspond to the conditions of recruitment of other legal bodies or other legal professions. This rule also relates to French speaking African States. Other countries decided to raise the level of knowledge and competences (Lithuania, Romania). However, much remains to be made in this field to achieve a harmonization of the rules governing access to the profession. The Council of Europe, with recommendation 17 of September 9th, 2003, and the CEPEJ opened a vast project to carry out this objective. Nevertheless, it is advisable to be realistic and to conceive that this resolution will remain vain unless the profession decides to mobilize in favor of training. It is to be observed that with the assistance of the National school of Procedure of Paris, certain countries took positive steps in this direction (Romania, Latvia, Tunisia).
2 - Liability- Ethics - Competition
One of the characteristics emerging of the function of judicial officer resides undoubtedly in the mode of responsibility to which it is attached. The judicial officer, like the gymnast on his bars, is constantly searching the right balance between the requirement of an always impatient creditor waiting for his due and a debtor who feels reluctant to be enforced. The smallest fault of the judicial officer engages his personal and professional civil liability, even penal. For citizens Ethics and deontology are a powerful protection and a necessary guarantee against reprehensible actions of judicial officers. Lastly, competition is a mother of excellence insofar as it creates a real competition in the efficiency between judicial officers.
3 - Sphere Of Actiities
The bond between all judicial officers, as for enforcement agents, depends on their core activity which is the enforcement of judgments and other enforceable titles. Nevertheless, whereas enforcement constitutes the only field of action of enforcement agents, the field of intervention appears much broader for judicial officers. Indeed, the latter exerts many peripheral activities, even different, which overflow the threshold of the only seizure. In Belgium, France, or the Netherlands, judicial officers serve judicial documents, establish reports, proceed to voluntary sales of personal property and especially intervene in the amicable covering of debts. They provide legal advice and under certain conditions, assist or represent parties before courts. This list shows all the remaining differences in the respective prerogatives of the two branches of the profession. Ultimately one can deduce that it is the nature of the function and the sphere of activity which determine the statute of the judicial officer, who, for having varied throughout history, remains solid in his bases.
II - The Statute Of Judicial Officers And Enforcement Agents: A Deep Ambiguity. The Slip Towards Dangerous Drifts. How To Cure It?
A - Statute Of Judicial Officers And Enforcement Agents: A Source Of Ambiguity
1 - The Judicial Officer And The Enforcement Agent: A Profound Disparity
It is in 1560 (Orleans Act by Charles IX) that in France the first provisions appeared to regulate the activity and statute of ushers in a liberal form. We then lived a time, which extended besides until the 19th century, where ushers could not all read and write, hence their great dependence towards Judges, to whom they were to submit a verbal report of the result of their work.
Fortunately, the situation has strongly evolved and in France legislation now establishes a separation between the capacities of the Judge and the prerogatives of the judicial officer. In Europe, during conflicts and occupations of territories, many European States took as a starting point the system in force in France to transpose it, initially, in their legislation before abandoning it (Italy, Spain, Germany, Sweden), so that at the time of the widening of the EU, only France and Benelux countries had a body of judicial officers. Everywhere else were enforcement agents. We described the differences which separate judicial officers from enforcement agents. However the situation is far from being clear because the line between the two branches still remains vague. Undoubtedly these difficulties are bound to States which hardly perceive the nuance between the concepts of a liberal professional and that of a civil servant agent in charge of a public service.
2 - Sources Of Ambiguity
A persistent ambiguity remains around the concept of “civil servant”. A first argumentation consists in supporting that distraint would be a prerogative of public power which cannot suffer any exception to the principle of exclusiveness to the profit of public civil servants. Moreover, one can issue strong reservations on the fact that enforcement can be entrusted to independent actors who are also creditors' agents. A totally different demonstration accredits the thesis whereby, while preserving the values which seal its authority, a State can delegate its prerogatives of public power to independent professionals as long as they are surrounded, by law and statute, of the precautions that each individual case requires. Ultimately nothing should be opposed to entrust to judicial officers all sectors of distraint. This delegation should however only intervene to persons individually designated and invested “intuitu personae”. It is precisely in the transposition of this device, within the official system, that lies the ambiguity. Indeed for the State, the judicial officer, even private and independent, must narrowly remain subjected to the control of the Public Prosecutor, the authority of the Judge and the power of the Minister for justice (or of the President of the Supreme Court). Ultimately, he is a professional “liberal civil servant”, which is only a caricature that suggests the existence of a permanent supervision. How then, to reconcile these apparently very opposite concepts?
B - The French System: A Solution?
1 - The Unique Mode Of The Judicial Officer Auxiliary Of Justice And Of The Public And Ministerial Officer
The French system could be at the base of an innovating reflection. The origins of the statute of the French judicial officer date back, as we saw, to the middle of the 16th century. Since this period structural elements of the French statute have rested on two stands: the belonging of the judicial officer to the court system and his classification within the rank of public and ministerial officer.
a) The judicial officer member of the court system and auxiliary of justice
This characteristic of the French judicial officer is often ignored. In the civil and penal field courts in France are made up of judges, clerks and a judicial officer. All sit in costume and fill a specific role. The judicial officers assigned to this function are called “court ushers”. They are named for all the duration of their career by the court and their successors in their office keep this function. For this reason, judicial officers are emergent actors in the legal process that confers to them the very estimable quality of auxiliary of justice. Because of this membership, they can be appointed by the judge to carry out statements of facts and give consultations within the framework of the measures of instruction decided during the lawsuit.
b) A Ministerial Officer
In fact, in France the judicial officer is never compared to a civil servant, even if he exerts his functions under the control of the public prosecutor and if his appointment depends on the Minister for justice. For as much, he is entirely independent of the judge whose role exclusively consists in settling disputes. This originality of the French statute results from a double concept ignored in Europe: that of public officer and member of the legal profession. One says of the judicial officer that he is a ministerial officer because he is appointed by the Minister for justice in an office which he chooses himself, provided that it is available, and for the acquisition of which he pays an allowance to the one preceding him. It is said that he is a public officer because he delivers judicial documents in public matter which include authentic parts (date of the document, signature of the judicial officer, indications relating to the parties...). The characteristic of the functions of the French public and ministerial officer lies in what could be thus formulated: “in his field of intervention, the judicial officer can do everything on his own initiative without control nor authorization providing:
1 - Respect to the texts which govern his functions and activity
2 - He engages his civil and penal professional liability in case of wrong doings.”
Obviously, the judicial officer remains, in addition, subjected to rigorous rules as regards disciplinary matters and ethics. In France the judicial officer leads enforcement and advises parties as regards measures to be undertaken. He prepares requests and even can, according to the cases, represent parties before courts (as in the Netherlands). He must reconcile all at the same time the requirements of a creditor always in a hurry to obtain satisfaction and the situation of a debtor who can be worthy of interest and who has a low solvency. The French judicial officer is never the object of pressures, nor of foreign interventions. Moreover the competitive system excludes any assumption of corruption. Obviously, this statute is far from being perfect, but it must be appreciated in the light of other existing formulas but also of dangerous drifts existing because of slacken legislations.
2 - Drifts
Cases are unfortunately numerous where one observes the existence of very imperfect modes of distraint, even dangerous, where the traditional architecture of the Rule of law, which is designed around a legal system based on the emergence of the Judge, the lawyer and the judicial officer, is entirely broken up. According to the general principle, the delegation of public power can be granted only to one agent “intuitu personnae” and not to a private group which would choose among its employees those who would be ready to proceed, for their own accounts, with operations of distraint. Moreover, it can appear contestable to conceive enforcement in a dual form by associating private business enterprises. One can wonder whether such a manner of conceiving the public service of justice remains in conformity with the constitutional mode of a Member State, the more so as in certain countries this form of private justice can take intolerable forms, in violation with the rules of protection of privacy. Thus are “cobradors del frac”, “pink panthers”, “Repomen”, even “boxers” or the Mafia, who replace judicial officers to collect debts by employing intimidating methods or resorting to violence. These intrigues and these behaviors are firmly condemned by the Council of Europe which is determined to fight against all forms of private justice. This willpower results both from Recommendation 17 of September 9th, 2003, and the work of the European Commission for the Efficiency of Justice (CEPEJ).
In spite of deeply anchored roots in various civilizations covering our planet, the occupation of judicial officer is very young in its modern and international design. Like all trade associations, it undergoes the changes imposed by the effects of a worldwide economic situation which supports financial and economic emergence. However, there is an element which could not be occulted: that of legal security. Without a body of qualified, responsible and effective enforcement professionals, legal decisions are likely to remain dead letters. Now a State which does not ensure enforcement of titles is marginalized from economic sectors and investment. Thus it is essential that, with the UIHJ, States endeavor to work for the promotion of a body of highly competent and harmonized judicial officers. It is in this direction that Romanian judicial officers are heading for. May they be congratulated and thanked for their engagement at international level.
