Help Strengthening the Probationary
The National Chamber of Judicial officers of Greece expressed to the UIHJ its willingness to organize an international event on the theme of evidence given by the judicial officer through his activities of enforcement, service of documents and statements of facts. The judicial officers of Greece wish indeed to be fully involved in carrying out statement of facts and other measures to establish and preserve evidence. The UIHJ partnered with our colleagues in the scientific organization of this international event.
The delegation of the UIHJ consisted in its president, Leo Netten, Dionysios Kriaris, president of the National Chamber of judicial officers of Greece and member of the board of the UIHJ, Sue Collins, member of the board of the UIHJ (USA), Françoise Andrieux, Secretary General, Mathieu Chardon, 1st secretary and Luisa Lozano, Administrative Secretary. Ten countries were represented: Argentina, Belgium, Bulgaria, Cyprus, France, Greece, the Netherlands, Portugal, Spain and the USA. The scientific day was held in the salons of the Hotel Titania in Athens. It drew about eighty people including many judicial officers, academics and personalities of the legal professions.
Amongst the participants and speakers were Jacques Isnard, former president of the UIHJ and honorary president and five members of the Scientific Council of the UIHJ: Robert Emerson, Professor at Law at the University of Florida (USA), Natalie Fricero, professor at the Faculty of Law of Nice (France), Ton Jongbloed, law professor at the University of Utrecht (Netherlands), Aida Kemelmajer of Carlucci, professor at the Faculty of Law of Mendoza (Argentina) and Paula Lourenço Meira, president of the Commission for the Efficiency of Enforcement (Portugal). The Scientific Council of the UIHJ also held a meeting on 6 October 2011 in Athens to work on the project of the UIHJ of a World Code of enforcement, as well as the next international congress of judicial officers which will take place in Cape Town (South Africa) the first week of May 2012.
In his opening speech, Dionysios Kriaris thanked the many Greek personalities, among which:
- George Petalotis, deputy minister of justice;
- Fokion Georgakopoulos, President of the High Court;
- John Adamopoulos, President of the Bar of Athens;
- Stelios Manousakis, president of the Bar of Piraeus;
- Kostos Vlachakis, President of the Chamber of Notaries of Greece;
- Panagiotis Lymperopoulos, Judge of the High Court;
- George Papantoniou, President of the Bar Association of Cyprus;
- Kostas Chajikosteas, president of the Chamber of Judicial officers of Cyprus;
- Athanaiou Plevris, member of the Greek Parliament;
- Vasilios Rigas, president of the Organization of the proceedings;
- As well as Klamaris Nikolaos, Dimitrios Tsikrikas and Nikolaos Katiloris, law professors at the University of Athens.
President Kriaris said the judge's decision is based on the evidence that was presented during the trial. Evidence relies on testimony, statements and reports. He regretted that testimony can be unreliable whereas it is sometimes the only available evidence. He said that statements of facts may help to strengthen probationary. The judicial officer, as recommended by the Guidelines of the European Commission for the Efficiency of Justice (CEPEJ) of 17 December 2009 for a better implementation of the existing recommendation of the Council of Europe on enforcement, is a professional who operates daily in the field of statements of facts. Statements of facts appear to be an important element that improves the efficiency of justice.
Leo Netten congratulated President Kriaris and the National Chamber of Judicial officers of Greece, for the perfect organisation of the day. He stressed the importance of statements of facts in the finding of evidence. The president of the UIHJ recalled that measures of statements of facts carried out by judicial officers feature in the activities which development is encouraged by the Council of Europe in accordance with the CEPEJ Guidelines.
George Petalotis, Deputy Minister of Justice of Greece, welcomed all participants. He stressed the important role of judicial officers in European countries and the important contribution of the Greek Chamber which brings together professionals who are “in the field all day”. "As intermediaries between citizens and justice, judicial officers are the receptors of the economic and political situation of our country," he said. The Deputy Minister of Justice has endorsed the precept according to which, for the citizen, justice is done only when the court order is enforced. The judicial officer has multiple functions within judicial activities. The political power and lawyers have a duty to plan for the future and move forward. In spite of the crisis which is a reality, said Mr Petalotis, "judicial officers are factors of economic and social development." "We must be united for the common good," he concluded by wishing fruitful work to all.
Installing Statements of Facts at International Level
The three workshops composing the conference were preceded by an overview of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters lectured by Dimitrios Tsikrikas, assistant professor in the Faculty of Law, University of Athens. Professor Tsikrikas beforehand thanked the presidents of the UIHJ and the National Chamber of Judicial officers of Greece to allow him to develop this very important topic. Rogatory commission is a central element of the trial. It is possible to take action to obtain evidence in foreign countries. Thanks to Regulation 1206/2001, the requesting court sends its request quickly and simply to the competent court abroad. The court must take the required steps within forty days. It cannot deny its mission when the application is complete and complies with regulatory requirements. Regulation is an important step with regard to the taking of evidence abroad. It facilitates the collection of evidence. It allows the judge to decide in full knowledge. Provisions on harmonized procedures in the European Union are based on national laws. The European institutions are introducing European regulations based on national law. The unification of the procedures at European level will lead to the reconciliation between peoples.
The topic of the first workshop was evidence and new technologies. How to combine evidence, new technologies and judicial officer? This question was asked to the three speakers of the workshop, chaired by Panagiotis Lymberopoulos, Judge at the Court of appeal, member of the Greek Department of the European Judicial Network. Paula Lourenço Meira, president of the Commission for the Efficiency of Enforcement (Portugal) spoke to introduce the legal enforcement reforms in Portugal and their results, and the role of the enforcement agent in her country especially in the domain of e-Justice. She said the prior role of the Commission for the Efficiency of Enforcement of Portugal proposes recommendations for improving the efficiency of enforcement, control the activities of judicial officers. The Commission also participates in the training of judicial officers. "Judicial officers are important with regard to evidence," said Mrs Meira Lourenço. In Portugal, when a debtor fails to pay his debts and is insolvent, the judicial officer publishes a notice on a website visible to all. "It is very effective," she considered. In the field of service of documents, electronic service of documents is possible, for example for Social Security. This system has been operational since 2011. Electronic attachment is also possible since 2003: shares of commercial companies, buildings, vehicles or patents. "These measures are fully satisfying" said the speaker. Electronic publications are made on the website. It is for example possible to view on the Internet which are the vehicles for sale. Everything is recorded on the computer files and evidence is impossible to erase. New technologies allow preserving evidence in a secure way. For the President of the Commission for the Efficiency of Enforcement of Portugal, "judicial officers are the best vehicles for this security."
Jos Uitdehaag, judicial officer (the Netherlands), First Questor of the Committee of the UIHJ, presented the history having encouraged the Dutch judicial officers to invest in new technologies, particularly to enable them to have access to information on debtors. Our colleague also spoke in detail about authentic deeds and their benefits, especially in terms of evidence. Following him, Alain Bobant, judicial officer (France), President of the National Federation of Trusted Third Parties (FNTC), said how much he was moved to speak in the "cradle of human civilization." Alain Bobant discussed how, in France, judicial officers have set up a procedure with all the technical prerequisites to allow judicial officers to make statements of facts on the Internet. "Why not raise the Internet statement of facts to ISO standard and not install it at international level?" asked Alain Bobant. He presented the FNTC he chairs. This federation consists of four colleges. The first college contains the operators and providers of trust services. These people will identify the author of an email and keep the message through time. The second college includes editors and integrators of computerised solutions. The third college includes experts. The fourth college regroups institutional and regulated professions. Alain Bobant ended his speech by announcing that the UIHJ has now incorporated the FNTC. Netten President thanked him for this integration and stressed the international aspect of the FNTC. Alain Bobant announced the possible creation of a working group on "Judicial exchanges" within the FNTC to bring together the technologies and to be interoperable. President Bobant called on the countries to meet so that the techniques are interoperable, which is fundamental.
Evidence Given by the Judicial Officer
The second workshop concerned the evidence given by the judicial officer through its traditional activities of service of document and enforcement. It included two parts. The first part dealt with the intrinsic evidence through these traditional activities. It was chaired by Nikolaos Klamaris, professor at the Faculty of Law, University of Athens. Professor Klamaris thanked President Kriaris for his invitation. He said the university felt that the judicial officers were involved in the good functioning of justice. Aida Kemelmajer de Carlucci thanked the UIHJ and the Greek Chamber for giving her an opportunity to speak here in Athens. Evidence and trial are related to the securing of rights. There is a right to evidence. Professor de Carlucci looked at the broad definition of evidence in international affairs. "A right does not exist if it cannot be proved said the Romans”, she recalled. Each proof has its great value at different periods of times. For example, can admission be a real proof? Each era highlights a type of proof. Ten years ago, there was no mention of electronic evidence. The object of proof concerns facts. Admitted facts need not be proven. Only contested facts should be proven. Mrs de Carlucci continued her very detailed presentation on all aspects of this fundamental law concept.
Robert Emerson presented the outlines of the judicial system of the USA, through judges, including their mode of appointment. He insisted that the trial system in the United States is essentially based on facts. Vasilios Rigas, Judge of the Supreme Court of Greece, President of the Union of men of proceedings dealt with the guarantee of evidence served by the judicial officer. He introduced the compulsory mentions of documents prepared by the judicial officers in Greece. "The documents made by judicial officers relating to enforcement and service of documents contain essential elements in terms of evidence," he said. Regarding enforcement measures, Mr Rigas said the mention of the attached movable good serves as a certificate of evidence. This is possible in the light of the trust placed in judicial officers.
Luis Ignacio Ortega Alcubierre, Vice-President of the Supreme Council of Procuradores (Spain), spoke about the recent reforms in Spain having led Procuradores to serve judicial and extrajudicial documents. However he regretted not being able to carry out statements of facts for the time being, this activity being one of the objectives set by the Supreme Council of Procuradores. He outlined the areas of the Procurator in the proceedings. The Procurator is an independent and impartial professional. Going through the various existing modes of evidence, our colleague acknowledged that the Procurator is today rather passive in this field.
Konstantinos Pantouveris, treasurer of the National Chamber of Judicial officers of Greece presented the latent aspects of evidence in the documents issued by the judicial officers. Many mentions reported in these documents are considered as evidence. Our colleague said that it is rare for a citizen to challenge these mentions inasmuch neutrality is recognized and admitted as a characteristic of the judicial officer. Since 2005 the Greek Chamber has been promoting the possibility of carrying out statements of facts. Professor Tsikrikas prepared a paper for this purpose. To date, this request was not successful.
Mathieu Chardon intervened to discuss service of documents and enforcement of judgments in their aspects as elements of proof. Because of their status, insisted the First Secretary of the UIHJ, French judicial officers are "essential element of procedural law" when they serve documents, asserting their date. The service of documents can therefore intrinsically secure the rights of the parties. As regards the enforcement of court decisions, our colleague cited numerous examples in which documents made by judicial officers contain intrinsic evidence.
Natalie Fricero recalled that in Community and European law, there are basic rules of access to evidence. There should be no discrimination as regards evidence across countries. Human rights should be respected. This requires the intervention of independent professionals. These professionals have shown their inherent loyalty and independence. They can therefore be trusted. "Reforms must take into account the role of professionals and judicial officers in the service of document, enforcement and also in the activities of statements of facts" said Professor Fricero. According to the law, the authentic deed should have a larger probative value than that of documents made between individuals. New technologies are proven safe. "The finger that clicks on the computer must be an" appropriate finger”, a judicial officer's finger " claimed Mrs Fricero. It is imperative that judicial officers are involved in the integration of new technologies. All systems must guarantee the Rule of Law. She recalled that, on 14 January 2010 (No. 53451/07, Popovitsi v. Greece, Procedures, March 2010, comm.. 70, N. Fricero) the European Court of Human Rights judged that states must deploy all necessary procedures to ensure the full - and not theoretical or illusory - enjoyment of the rights guaranteed by Article 6 § 1 of the European Convention on Human Rights, particularly in the area of the service of documents initiating proceedings. Thus, the judicial officer guarantees the proof that service was regularly carried out. This legal professional is also involved in the proof that the recipient was informed of the contents of the document.
Fighting counterfeiting
The second part of the second workshop involved the extrinsic evidence beyond traditional activities. It was chaired by Françoise Andrieux. Marc Schmitz, judicial officer (Belgium), Questor of the Committee of the UIHJ, presented the statements of facts and their implications in terms of proof. Our colleague also presented the judicial or amicable sequestration. Sequestration is a very common activity in Belgium and other countries. It ensures the conservation of movable property that is the subject of a claim or litigation, pending a court decision. The judicial officers are neutral, impartial and independent professional, who are usually appointed by the judge to place the goods “under the hand of justice” and preserve them.
Rose-Marie Bruno, judicial officer (France), Honorary Member of the UIHJ, said the judicial officer carries out two types of activities, one exerted as a monopoly, and the other one non-monopolistic and mainly relating to the finding and the keeping of evidence. Our colleague identified three areas. They relate to the preparation of private agreements, summons including questioning of the addressee and statements of facts. The judicial officer prepares private agreements, including leases. He can also draw up agreements between creditors and debtors specially those installing payments. When carrying out summons including questioning of the addressee, the judicial officer's role is between that of an investigator and an expert. As regards statements of facts, our colleague recalled that the judge always gives probative value to the statements of facts carried out by judicial officers. She said that statements of facts of SMS are becoming more frequent as are statements of facts carried out during strikes.
Sue Collins said the rules are different in each of the fifty states of the USA. The US Marshall deals with criminal and civil cases. Since 1983, the law allows any person of age to serve documents as long as he is not involved in the proceedings. In 2003, the system of trans-state service of documents was entrusted to a private company. The results are very positive. Sheriffs are elected for an average of four years. Process servers have developed over the last thirty years in the USA. Their role is to serve court documents. They cannot enforce these court decisions.
The third workshop was entitled "Evidence and economy". Georgis Mistis, chair of the workshop, is the president of the Association of Judicial Officers of the Courts of Appeal of Athens, Piraeus, Aegea, Dodekanisou and Lamia. Françoise Andrieux addressed the topic of counterfeit, "a truly global plague that affects all sectors and all countries." Counterfeiting damages businesses. It also damages the image of companies and can be very dangerous for consumers. The procedure of counterfeit and forgery includes the proof of the disorder caused by counterfeiting. Three conditions are required to implement the procedure: the existence of an intellectual property law, the existence of the counterfeit, and the existence of certain conditions relating to the applicant. In France, judicial officers routinely carry out attachments relating to counterfeit.
The last round table consisted in a panel of international experts: Robert Emerson, Natalie Fricero, Ton Jongbloed, Aida Kemelmajer de Carlucci and Dimitrios Tsikrikas. President Jacques Isnard was appointed for the occasion as chair and asked this honourable assembly what could summarise the day. All agreed to declare that evidence is an essential element of civil procedure, due to legal certainty. The distinguished professors considered that there is a need for harmonization in the European legislation relating to evidence. The response to this need implies the harmonization of the prominent role of the judicial officer in the domain of evidence, supported by the probative value of the documents he carries out.
At the end of the round table, two recommendations hereafter reproduced were issued and called in his closing speech by President Netten.
The recommendations of Athens
1. The document issued by a judicial officer should include the proof of its contents with the value of an authentic deed because it is done by a trained professional, a public officer.
2. The implementation of e-Justice must be done in consultation with all legal professionals in respect of fundamental rights.
