International Colloquium of Nicosia: Towards the Establishment of a Hierarchy of the Modes of Service of Documents in the European Union

 

 

The Service of Documents by Judicial Officer, a Source of Legal Security
 

The UIHJ Stobra 2 program was launched and presented during the Council of the European Presidents of the UIHJ held in Brussels (Belgium) in March 2012. It aims to harmonize the service of cross-border documents in civil and commercial matters, in particular within the European Union. A first meeting was held in Constanta (Romania) on 5 September 2012 and laid the groundwork for the project.
The island of Cyprus was chosen for this Stobra 2 second meeting. Our colleagues from Cyprus have the monopoly on the service of documents. However, they are confronted with practical difficulties.
The colloquium anticipated the future work that will be carried out by the European Commission within the framework of the reform of Regulation 1393/2007 of 13 November 2007 on service of documents.
It had a dual purpose. On the one hand, help to shed light on the problems faced by judicial officers of Cyprus. On the other hand, share national experiences and identify common grounds that can lead to engage in the process of harmonizing the service of documents, in particular the document initiating proceedings and more even the various methods of handing the document to the addressee.
The UIHJ delegation was composed of its President, Leo Netten, its First Vice-President, Bernard Menut, Vice-President, Dionysios Kriaris, its General Secretary, Francoise Andrieux, and its two First Secretaries, Mathieu Chardon and Jos Uitdehaag.
Cypriot judicial officers came in number as well as judicial officers from Greece. The National Chamber of Judicial Officers of Hungary was represented by its Vice-President, Ferenc Csaszti, and his Secretary, Gyula Kovacs. We noted the presence of our Armenian colleagues.
The symposium was opened in the presence of Irene Christodoulou, Chief Registrar of the Supreme Court of Cyprus and Theodorus Ioannidis, President of the Bar Association of Cyprus. Ms Christodoulou expressed the interest of the Supreme Court of Cyprus in the event and in the service of documents. Mr. Ioannidis noted that when judicial officers are concerned with the service of documents, they help to ensure legal certainty. He stressed the importance of training and indicated the need to facilitate the service of documents. Costas Hadzikosteas, president of the National Organization of the Judicial Officers of Cyprus, welcomed the participants. He said he hoped that the colloquium would help find solutions to the problems that the judicial officers of Cyprus meet when carrying out the service of documents and that he would present.

The Postal Service, a Source of Legal Uncertainty

In his introductory speech, Leo Netten expressed his pleasure to be in Cyprus. He thanked the chambers of the judicial officers of Greece, Athens and Cyprus for hosting this conference together with the UIHJ. President Netten recalled that in Sibiu (Romania), in 2009, the UIHJ had organized a main international conference to mark the 10th anniversary of the European Summit in Tampere. On this occasion, the UIHJ had written and presented a draft EU directive of a harmonized document initiating proceedings. This project includes the mentions which, according to the UIHJ should be found in this document. This paper also shows how documents should be securely served to the addressee by a professional lawyer, such as the judicial officer.
The President of the UIHJ in particular recalled that during a meeting of the European Judicial Network in civil matters held in February 2012 in Brussels, the service by post was criticized by several countries, emphasizing its lack of legal and practical security.
Historically, the UIHJ considers that the information given to the defendant on his rights and obligations is essential to the rule of law. This information should meet two requirements. It should first be genuine, that is to say have been actually given to the defendant. It should also be unquestionable. To be unquestionable, it is necessary to be able to prove conclusively that the defendant has received the information. The only way to fulfil these two requirements is a direct personal service to the addressee by a person, a liable professional who can guarantee the conditions of the service. The judicial officer meets these two requirements. He has an additional advantage. He is able to give information to the defendant at the time of the delivery of the documents because of his position of judicial officer and trained lawyer. This is particularly important in domestic law. This is even more important in international or Community law. Litigants, who live in different countries, speak different languages and are subject to different rules. The protection of the defendant becomes an imperative that if not reached, vacuums the entire judicial process of its substance. Having highlighted these issues, President Netten thanked the speakers for the answers they would provide.
As an introduction to the works, the film made by the UIHJ for the symposium of Sibiu on the service of documents in the European Union was shown. This film, directed by René Duperray, former general secretary of the UIHJ and Françoise Andrieux, is still valid. It demonstrates both the great disparity of the methods of service, but also that the judicial officer is able everywhere to carry out that fundamental mission.

Establishing a Possible Hierarchy of the Methods of Service

After an overview of the objectives and the state of play of Stobra 2 made by Bernard Menut, the first roundtable included Françoise Andrieux, President Costas Hadzicosteas and George Mitsis, President of the Chamber of Judicial officers of Athens. The roundtable was chaired by Efhtimios Preketes, former president of the National Federation of the Judicial Officers of Greece. This roundtable helped compile an inventory of the service of documents in France, Greece and Cyprus, three countries where the judicial officers carry out this mission as part of their main activity. If the system of service of documents in France and Greece - very similar - is known, the system in force in Cyprus has specific features and is interesting to describe. With few exceptions, the judicial officers have to hand the document to the sole addressee only. Any other method of delivery is prohibited. This poses important practical issues which are prejudicial to the public service of justice. When the addressee wishes not to get the document, he can hide or use various stratagems. The judicial officer is required to make multiple attempts until his performance obligation is satisfied. In case of a document initiating proceedings, the court case is dependent on the result. Time stretches. The work of justice is blocked.
Dimitri Tsikrikas, professor at the University of Athens, intervened to remind the importance of service of documents, which may occur for example to interrupt a prescription. For him, the rights of individuals - that is to say those of the plaintiff and of the defendant - should be placed at the centre of concerns.
The second panel focused on the service of documents with regards to European instruments. A thorough review and comparison of Regulations 1393/2007 (Service of documents), 805/2004 (European Enforcement Order) and 1896/2006 (European Order for Payment) was presented in terms of the service of documents with regard to regulations 805 and 1296. The chair of the workshop was Bernard Menut. Mathieu Chardon, 1st secretary of the UIHJ presented the principles of Regulation 1393 and the Vade Mecum on this regulation and which is freely available on the website of the UIHJ. Dimitri Tsikrikas, spoke about the other two regulations, and Regulation 44/2001 of 22 December 2000 (Brussels I Regulation). Professor Tsikrikas considered that the service of documents was essential in the context of these three instruments. The judicial officer ensures the defendant's right to defend himself. To be effective in all cases, the service of documents should be carried out by a judicial officer and not by post, as now allows EU regulations. The service of document is the focal point of a fair trial. Dimitri Tsikrikas found that there could be a hierarchy of methods of service at European level. In this regard, the service to the person of the addressee ensures respect of the fundamental rights of defence. However, in the interests of the applicant's rights and the legal system, other modes of service should exist, including a  "fictitious" service in very limited cases after carried out all the research necessary to try to serve the document to the recipient. This allows not blocking the judicial process.
Bernard Menut, in charge of the summary of this workshop concluded that it was heading towards a convergence of methods of service.
 

The Adequate Information of Users: a Necessary Element of a Fair Trial

The third panel looked into the Hague Conference on Private International Law, the Hague Convention of 15 November 1965 on the service of documents in international matters, and the service of documents.
Fanny Cornette, PhD, UIHJ Consultant and recent winner of the thesis price of the National School of Procedure of Paris for her thesis on “The Service of Documents in the World” presented the Hague Conference on Private International Law. For decades, the UIHJ has on-going relationship with this over a hundred years old international organization. Fanny Cornette said that 67 states apply the 1965 Hague Convention. She recalled the genesis of this convention: a first text on 14 November 1896, two conventions (17 July 1905 and 1st March 1954), then the deposit by the UIHJ in 1960 of a memorandum relating to service of documents abroad, which formed the basis for the 1965 Convention. This agreement allows judicial officers to transmit documents to be served directly from one country to another (Article 10 b). The speed and efficiency of the process is then unique.
Guillaume Payan, a lecturer at the University of Maine (France) and a UIHJ consultant, endeavoured to compare the service of documents between Regulation 1393 and the 1965 Convention. At the end of his analysis, Guillaume Payan observed that neither of the two instruments provides provisions for the transparency of Assets. For him, the judicial officer should have access to information in the context of his mission of serving documents. As Professor Tsikrikas, he proposed to consider a hierarchy of modes of transmission and service of documents.
The fourth panel was chaired by Efthimios Preketes. It concerned service of documents, as an element of evidence of all the activities of the judicial officer. Bernard Menut first addressed the service of documents as regards the Guidelines developed by the European Commission for the Efficiency of Justice (CEPEJ), adopted on 17 December 2009 by the Committee of Ministers of the 47 member states of the Council of Europe. Our colleague recalled that the UIHJ had actively participated in the CEPEJ working group. The First Vice-President of the UIHJ emphasized that this fundamental document seals the standard of the profession of judicial officer and civil enforcement proceedings in Europe. With regards to the service of documents, item 17 of the Guidelines states that "Notices to parties concerning the enforcement of judicial decisions or enforceable titles or notorised or other documents are an essential aspect of the law of enforcement. Due notification of parties is a necessary element of a fair trial, in the sense of Article 6.1 of the European Convention on Human Rights ". Item 18 proposes to develop standard templates for user information at all stages of enforcement. By adopting these guidelines, the 47 member states of the Council of Europe recognize that "It should be possible to entrust enforcement agents with the service of notices. To this end, member states should determine conditions for a secure method for the service of documents "(item 20). Similarly, "where notices generate rights or obligations, it is the duty of the enforcement agent to ensure that the parties are served with adequate notice in a timely manner" (item 21).
Jos Uitdehaag then presented an overview of the service of documents in the Balkans and South East Europe. The First Secretary of the UIHJ emphasized that in all the countries concerned, the service of documents was considered to be one of the main problems, also in enforcement procedures. Especially the service by post appears to be completely inefficient and a lot of problems arise because of the wrong service or no service at all. A lot of problems could be solved by a decent and correct service of the documents introducing proceedings and introducing enforcement. Wrong service, or no service at all might cause months of delay in proceedings and might lead to a substantial increase in the number of enforcement cases in the courts. Jos Uitdehaag did not fail to recall that these problems gave rise to regular trials before the European Court of Human Rights for violation of Article 6.1 of the European Convention on Human Rights. He then gave an account of the situation in the countries of the region: Albania, Bosnia and Herzegovina, Republika Srpska, Croatia, Kosovo, FYR-Macedonia, Montenegro, and Serbia.
Finally, Marcos Dracos, lawyer, lecturer at the University of Nicosia, presented the situation in Cyprus regarding the role of service of documents as evidence of all activities of the judicial officer.
The fifth roundtable focused on the interests of the circulation of documents and European requirements. Guillaume Payan recalled that, under Article 65 of the Treaty on European Union, “Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include improving and simplifying the system for cross-border service of judicial and extrajudicial documents...”. At the end of a crystal clear speech Mr Payan again exposed the idea of a hierarchy of methods of service in the European Union.
The sixth workshop theme was "From electronic service of documents to e-Enforcement." Dionysios Kriaris referred to the electronic service in Greece. Bernard Menut presented the French system which has just come into force, a system which he criticises for its complexity and its lack of practicability. Then Françoise Andrieux spoke about electronic enforcement in Europe. Finally, Ferenc Gasczki presented the electronic system of service of documents in Hungary which he qualified as efficient and fast.
Following the presentations, a discussion with the audience was introduced in which many ideas were exchanged. In particular, Professor Tsikrikas observed that, to standardize the document initiating proceedings, it was first necessary to standardize domestic law. Anyhow, when closing the colloquium, Leo Netten said that the work did contribute to enrich the Stobra 2 project. He thanked all the participants for their presence and their interest and the speakers for the quality of their presentations.
Then tradition prevailed. The participants continued their discussions during the evening with music and delicacies. Captivated by the dances and the sound of the bouzouki, the debates soon took a wider angle, and focused on great demonstrations of friendship, closeness and brotherhood, one of the features of the UIHJ.