The Associações of Oficiais of Justiça Avaliadores Federais (FENASSOJAF) groups in Brazil officials whose mission is to collect the receivers of the State at federal level. The President of the FENASSOJAF, Joaquim Castelao, asked the UIHJ to attend the conference organized by his national association. The convention being held in conjunction with the permanent council of the UIHJ, Leo Netten, President, asked José Carlos Resende to represent him.
Our colleague gave a speech that we reproduce below.
Let me start in my name and in the name of Leo Netten, President of the International Union of Justice Officers (UIHJ). President Netten thanks the FENASSOJAF who organized this high quality congress in such an unusal location. It would never have crossed my mind being asked to speak of the UIHJ in a boat on the coast of Brazil !!
The President Netten was due to be here today to speak on what is this International Union. However, due to prior commitments in Paris at the Permanent Council of the UIHJ, he is unable to attend. He has given me the honour of speaking on his behalf and asked me to pass on his best wishes and hopes of FENASSOJAF and UIHJ to further increase their collaboration.
I'd like to thank everyone involved in the organisation of the congress : its president Joaquim Castelão; João Paulo Zambom; Iracema Pompermayer, Maria Regina Ferreira; Neemias Freire and all those who I have not been able to remember their names. Thank you also to the speakers and all the judicial officers.
For those who do not know me, let me present myself. I am a Solicitor and “Agente de Execução”. The profession of Solicitor existed in Portugal and Brazil since the Filipino Ordenações. It is extint in Brazil 50 years ago. In Portugal it has evolved into an independent professional from the judicial and ex-judicial rules.
My father was a judicial officer and finished his carrer as a solicitor, a title obtained by 10 years of good service at the highest level as judicial officer. Other ways of becoming a solicitor was to take a degree in law or a course organized by the Solicitors Chamber.
Today we need to have a degree in law to become solicitor in Portugal.
I got involved in these things as I was President of the Solicitor's Chamber between 1999 and 2004 and have enjoyed it even since then.
I will try to talk about the UIHJ and the Portuguese experience.
As you know,the Universal Declaration of Human Rights approved by the United Nations has some fundemental points one of which applies to us:
Article VIII : “Everyone has the right to receive from the competent National Governments effective remedy for acts that violate their fundemental rights recognised by the constitution or by law.”
The European Human Rights also adds that all citizens have the right to a fair trial within a reasonable time.
The European Courts for Human Rights had recognize in various decisions that Judicial officer coloborate in the goods administration of justice and see them as an essential element of the Rule of law.
What type of judicial officers exist in the world?
The function of a judicial officer exists in the majority of countries irrespective of their professional qualifications, local nuances and translation of their designation. The Judicial officer is an essential part to secure citizen's fundemental rights set out in the law.
In Europe there are four professional model.
As a result of the introduction of the Napoleonic codes after the French Revolution, the Judicial officer appeared initially as a high ranking imperial official. Over the years in France, Belgium, Luxemburg, Holland, Greece and Switzerland the profession developed into a independant professional subject to the control of the judge. The Eastern Countries(ex-Soviet states) also adotped this model. In Italy, Spain and Germany the Judicial officer is a civil servant. In Nordic countries independant institutions were created to process enforcement procedures. The solution in the UK varies regionally, for example where the enforcement procedure is carried out by a Sheriff who can jail those who do not pay, a solution adopted by countries practising this procedure know as Common Law. European solutions are reflected in African and Asian countries, usually copying the colonizers' system. The South American countries have Civil Servants as Judicial officers.
One of the curiosities of the models which have at it's roots latin law and the napoleonic codes is the existence of common figures: the writ of summons and the judicial attachment.
In 2002 the number of summons and enforcement procedures was such that the Ministry for Justice decided to investigate European solutions to the problem. They concluded that they could not employ more judges, Judicial officers or increase the courts to reduce the procedures. It was decided that a liberal solution was to be implemented in Portugal.
Solicitors were chosen and asked to develop the neccessary competences to process citations, notifications, and the attachment of assets as part of the Administration process. The judge in charge of the process would oversee and control these Solicitors who were first called “Solicitadores de Execução”, and later “Agentes de Execução”.
The processes are attributed to the “Agentes de Execução” via a computer system. They research the assets to be attached: vehicles, property, salaries etc... and the attach the assets as cited using the appropriate marketing required. The judge is only called when fundamental rights are in question. They must authorize agents to use forceful entry and access to banking and fiscal information.
The Solicitor - “Agentes de Execução” can be relieved of duties by the judge or by creditor. They are subject to an independant authority called the Commission of the Efficiency of Administrations who can impose disciplinary procedures where necessary.
The system has not been without criticism. It has been relatively succesful in large citities; however the results were not so favourable in local towns.
In the case of Administrations of fiscal debt, civil servants assume the role of Admistration Agents.
In the case of people without income, Judicial employees assume the role.
The solicitor - Administration agent deals fundamentally with civil claims.
The “Agente de Execução” is paid based on the financial results of each claim. From what I understand, with the exceptions of some Administration Agents in Lisbon and Porto who have many processes, one “agente de Execução” in Portugal earns a lot less than a Brazilian Judicial officer! They only retire at 65 and have identical problems as the Judicial officers in Brazil!
Naturally you would ask: is this private justice? I think not. The processes are always a result of the judicial sentence.
Private justice exists when someone decides who the debtor is, how much is in debt, how much is to be paid and how it is to be paid without having a judicial reveiw.
The UIHJ would like to join all Judicial officers around the world. The UIHJ was established in 1952. The Union is currently comprised of associated professionals in 70 countries. Its objective is to represent and collaborate with its members internationally. It strives to improve and harmonise the rights to national procedures and international treaties.
The UIHJ is a member of the UN - Economic and Social Coucil as a non governamental organisation. It is a permanent collaborator with the Hague Conference in Private International Law, particularly in relation to the development and implementation of judicial conventions.
In Europe the UIHJ is an permanent observer member of the European Comission for the Efficiency of justice.
The UIHJ has various regional organisations, of which the African stand out, with OHADA and the Mediterranean and Nordic countries.
It is currently striving to maintain its institutional collaboration with MERCOSUR, a Regional Organisation of the South American Treaty, and with the American Law Institute
I would like to draw your attention to two UIHJ initiatives of significant interest.
The first relates to the creation of the Institute of Internatinal Private Law and Enforcement Law. The Institute gathers judicial information, develops International Private law, offers training to professionals, studies and publishes judicial communications and maintains a worldwide library on these subjects.
The second relates to the development of what is called e-Justice, in essence the computorisation of the law with special focus on initiatives allowing the secure transmission of standardised information between judicial officers.
I cannot forget to mention an ambitious project recently initiated to create a worldwide code of enforcement in conjunction with professional and academics from all continents.
The UIHJ is not a syndicate. It does not strive for better salaries or charges (in the case of Solicitors) for its members. It strives for the dignity and independence of all kind of judicial officers and will stand beside, whatever the professional role, whenever these values are questioned.
The UIHJ can inform its Brazilian colleagues on initiatives to harmonise worldwide procedures and on related judicial studies in order to collaborate and dignify the profession in the eyes of all the Brazilian Judiciary.
The UIHJ wishes to actively collaborate with Brazilian judicial officers whenever they are involved in processes in other countries where the UIHJ is represented.
What can the Brazilian colleagues do for the UIHJ? Apart from being members and participating in its iniciatives they can send to the UIHJ their judicial and academic studies and actively work together with foreign Judicial officers acting in Brazil. Who has not yet had a procedure in which either side has its orgins or residency in various countries with diverse judicial systems?
I would like to end with my hope that our calaboration increases and that everyones visits or contacts us. We are at your service.
If any of you will go to Portugal please visit us. At least we could recommend a good wine or a restaurant to eat salted cod Portuguese style!
Please feel free to ask any questions.
Rio de Janeiro, 28th November 2010
José Carlos Resende
