The service of documents at the centre of the Procuradores conference in Sevilla

A highly European seminar

Two days of rain in Seville. Unthinkable! It is under this exceptionally bad weather that the national conference of the 9800 Spanish Procuradores was held in Seville on February the 2, and 3, 2007. The UIHJ was strongly represented by its president, Jacques Isnard, its vice-president, Roger Dujardin, its board secretary, Bernard Menut, a board member, Francis Guépin, and its first secretary, Mathieu Chardon. The delegation was reinforced by the Spanish-speaking Dominique Aribaut-Abadie, member of the French delegation, replacing Leo Netten, 1st vice-president of the UIHJ, prevented.
If the weather was bad, on the other hand, the legendary warmth of our Spanish colleagues largely contributed to make this important event a moment of friendship and confraternity, in spite of a difficult context of waiting for reforms.
The theme of the conference, “the intervention of the liberal professionals in the enforcement of court decisions”, was indeed of an extreme topicality.
The Procuradores were represented by Juan Carlos Estevez Fernandez-Novoa, President of the General Council of the Procuradores of Spain, Lorenzo Christian Ruiz Martinez, Vice-President of the General Council, Marcelo Lozano Sanchez, senior of the College of Procuradores of Seville, Javier Carlos Sanchez Garcia, President of the College of Procuradores of Coruna, Juan Manuel Gago Rodriguez, President of the College of Procuradores of Zamora, Jose Eduardo Sanchez Romero, President of the College of Procuradores of Andalusia and Silvia Garcia Vigne, Procurador in Barcelona.
The authorities were represented by Maria Jose Lopez Gonzalez, in charge of the service of Justice of the Public administration of Andalusia, Ricardo Bodas Martin, General Manager of the relationships with the Administration of justice and Carlos Rios Izquierdo, member of the General Council of the Judicial Power.
Two foreign delegations also attended the seminar: Antonio Gomes Da Cunha, President of the Chamber of Solicitadores of Portugal, and Juras Kovacs and Zoltan Levante, respectively Vice-President and secretary of the National Chamber of the judicial officers of Hungary.
Last but not least, Mr. Javier Borrego Borrego, judge at the European Court of human rights, had answered favourably to the invitation which had been made to him by his Procuradores friends and honoured this highly European demonstration with his presence.

Reinforcing legal safety in Europe

During the opening ceremony, Ricardo Bodas Martin, General Manager of the relationships with the Administration of justice, indicated that this congress was going to contribute positively to the work of justice. “No competence must turn its back to the professionals who innovate and contribute to improve the public service of justice” declared Mr. Bodas Martin. And to add: “We are at an important stage and we are willing to accept all that will improve the public service of Justice. The ministry for Justice will study all the initiatives which you will promote”.
For his part, Carlos Rios Izquierdo, member of the General Council of the Judicial Power, remembered his first meeting with the Procuradores, in November 2001, followed by the meeting in Avila in 2002 and the congress of Mallorca in 2004. Mr Rios Izquierdo indicated that it was important that the Procuradores are aware of the necessity to tend towards the harmonization of the legal systems in the European Union.
Jacques Isnard, President of the UIHJ, recalled the fifteen years during which the UIHJ and the Procuradores did not cease to meet and to exchange. Recognizing the accomplished work but regretting the processes of reforms eternally in progress, President Isnard declared that “one cannot continue any more to create Europe with only nineteen countries where judicial officers exist”, while recalling that Spain is not part of these nineteen countries. “One needs a profession specialized in enforcement. We will not create the European area of justice without Spain. Spain must create this liberal, autonomous and responsible profession, and must stand ready to ensure its training. The Procuradores exist. They have vocation to develop these activities and to become the agents in charge of carrying out the enforcement of court decisions. Without that, one will not develop the economy, one will not develop the instruments and one will not develop the investments. It is necessary to reinforce the legal spirit of security in Europe. This is what you will be talking about during these two days” concluded Jacques Isnard in front of an audience convinced by the accuracy of his remarks.
Speaker in his turn, Juan Carlos Estevez Fernandez-Novoa, President of the General Council of the Spanish Procuradores, indicated that the Procuradores want to show that “debt collection, service of documents and the exercise of the profession in Europe by professionals give an impulse to the economy”. By thanking the authorities for their receptivity and for having translated in the laws the wishes of Procuradores, the President announced that with the service of documents carried out by Procuradores, the public service of justice was going to be strongly instigated.
Then it was the turn of Maria Jose Lopez Gonzalez, in charge of the service of Justice at the Public administration of Andalusia, to intervene. Mrs Lopez Gonzalez recalled how much the profession was close to her by her preceding functions and that the Procuradores were highly qualified professionals. “By your presence you are an essential help for the guarantee in the procedures. You also have a horizon, a goal, that of the European Union. You will contribute to this homologation of the procedures in these countries where there is a regulation similar to ours” she declared.
The opening ceremony was completed by the remarkable intervention of Javier Borrego Borrego, Judge at the European Court of Human rights. Mr. Borrego Borrego underlined the chronic backlog of the Court, with today 90 000 requests per annum. Eight hundred million individuals can address to this jurisdiction. The magistrate of the Court of Strasbourg gave a report on several Spanish important decisions which had consequences in the jurisprudence relating to the equitable lawsuit envisaged in article 6.1 of the European Convention on human rights. Concerning the subject of the conference, Mr. Borrego Borrego considered that it is “splendid to gather collectives of various countries around the idea of a liberal professional of the execution”. “The States can neither delay the execution nor to dodge it. The rule of law and the equitable lawsuit is opposed to any interference in the administration of justice. That is unquestionable and clear in the eyes of the Court. This rule of law applies in all important matters but also in the daily implementation” he declared.

A sand castle under a Belgian downpour

The first round table related to the service of documents. It was placed under the chair of Francis Guépin, former president of the National Chamber of the judicial officers of France and member of the board of the UIHJ. Answering the reflections of Mr. Borrego Borrego on the influence of the European Court of Human Rights, Francis Guépin indicated that the jurisdiction of the wider Europe still influences the Member States and has sometimes as a consequence - as it was the case in France with the Court of Cassation - to modify the rules of some institutions.
Four brilliant interventions followed one after the other until a late hour of the day.
Initially, Manuel Juan Gago Rodriguez, President of the College of Procuradores of Zamora, pointed out that the Procuradores, within the framework of the administration of justice, could carry out service of documents by all the means admitted by the law. He drew a very complete picture of the various modes and conditions of service of legal documents.
Following this thorough presentation, Javier Carlos Sanchez Garcia, President of the College of Procuradores of Coruna, evoked the legal nature of the function of Procurador, both private and public, in collaboration with the parties. He mentioned a report on the service of documents by the profession. This report shows the effectiveness of the service of documents, which constitutes a factor to reduce the delays in the enforcement process. More than 21 million documents were thus served in 2005 by the 67 Spanish colleges of Procuradores, this amount being on a constant increase. Problems however remain. The law provides for that if the recipient is not met at his residence, the Procurador must come back with two witnesses to validate the service. To solve these problems, “We must adopt measures to eliminate the obstacles within the framework of the service of documents. We need a full capacity of identification” declared Mr. Sanchez Garcia.
It was then to the Frenchman Bernard Menut, former president of the national Chamber of the judicial officers of France and secretary of the board of the UIHJ, to give a presentation on “the Praetorian construction of the law of enforcement”. From the roots of a European law of enforcement and the European Convention of the Human rights, the secretary of the UIHJ developed the concept of the law of enforcement in Europe. Initially, our colleague defined the conformity of the law of enforcement compared to the principles of the equitable lawsuit. In that respect, legal security, effectiveness and effective enforcement are essential factors. Then Bernard Menut confronted the conformity of the law of enforcement with the principles of a reasonable time, thus regretting the absence of recourse in internal law. Lastly, the secretary of the UIHJ evoked the law of enforcement compared with the principles of equality of weapons, in particular asserting the character of insecurity of the postal notification compared to the service of documents by judicial officers.
The first day of the conference was completed by the authoritative review of our Belgian fellow-member Roger Dujardin, Vice-President of the UIHJ, on the topic: “Community Texts: the base of an autonomous law of enforcement”. Roger Dujardin first of all presented practical observations on the (EC) Council Regulation n°1348/2000 of 29 May 2000 on the service of documents in the Member States in civil and commercial matters. Then he presented the (EC) Council Regulation n°44/2001 of 22 December 2000 relating to the competence, the recognition and the execution of court decisions in civil and commercial matters, by comparing it with the 27 September 1968 Brussels convention. Lastly, continuing his review on the European legislation to the use of the judicial officers, the Vice-President of the UIHJ concentrated on article 17 of (EC) Council and Parliament Regulation n°805/2004 of 21 April 2004 creating a European payment order for uncontested claims. Roger Dujardin was very critical towards this instrument, describing it as a “sand castle under a Belgian downpour”.

Guarantee of ethical rules

The second round table took place on the following day, on the topic of “debt collection and enforcement”. It was placed under the expert chair of Marcelo Lozano Sanchez, senior of the College of Procuradores of Seville.
Jacques Isnard gave a presentation on the organization of the Community area of security and justice. The President of the UIHJ indicated that the reasons for which the UIHJ wants to promote the occupation of judicial officer in Europe articulate around three pre requisites:

Jacques Isnard indicated that the judicial law in Europe develops under the combined action of the Community texts, the work of the Council of Europe and that of the European jurisdictions (European Court of Human Rights and the Court of Justice of the European Communities). Legal security is reinforced on the one hand by the improvement of the rights of the defendants and on the other hand by the use of the service of documents by judicial officers. “All would have been simpler, deplores President Isnard, if one had instituted a single method of introducing the lawsuit such as with the service of document by a judicial officer or a qualified agent. Thus by the effect of the physical handing-over of the document, the legal security would have been preserved, guaranteeing the rights of the defendant while privileging, in addition, a double information. One could, indeed, have informed the defendant by providing him with indications on the lawsuit and have informed the judge of the conditions of the handing-over”. Lastly, the President of the UIHJ evoked the program set up by the UIHJ Washington Congress on the multidisciplinary judicial officer world-wide.
Then Dominique Aribaut-Abadie, member of the French delegation of the UIHJ, had the heavy task to replace Leo Netten, 1st Vice-President of the UIHJ, prevented, to speak about the collection of debts. She made a brilliant demonstration, in a perfect Spanish. While noting that the Procuradores did not deal with the collection of debts, Dominique Aribaut-Abadie invited our fellow-members to invest this market. “The speed of the international economic exchanges needs a fast and reactive service of collection of debts to protect credit. We can offer them the amicable service of collection of debts” she indicated while insisting on the fact that the judicial officers are the best professionals to carry out at the same time amicable and judicial collection of debts. Our French colleague also specified that “the responsibility for the professional judicial officers makes it possible to guarantee to work according to ethical rules'”. After a practical examination of the methods of debt collecting, Dominique Aribaut-Abadie concluded by indicating that the judicial officers and the Procuradores are the suitable professionals to guarantee the interest of both creditors and debtors.

A great capacity of adaptation

Mathieu Chardon, 1st secretary of the UIHJ, then gave a presentation on the future of the European judicial officer. Initially, the 1st secretary evoked the divergent past of the judicial officers in Europe - with the East/Western cleavage - to note that the destiny of these professionals converged naturally towards a harmonization at a European level, helped in that in particular by the actions of the UIHJ. In the second time, Mathieu Chardon evoked the future prospects for an occupation of a harmonized judicial officer in Europe and, beyond, in the world. “Let us bet that the occupation of a harmonized judicial officer on a European plan, yesterday's utopia, will be a reality tomorrow, for a better public service of justice to the profit of all the citizens” our fellow-member concluded on a very positive tone.
Silvia Garcia Vine, Procurador in Barcelona, then evoked the amicable debt collection from the Procuradores' point of view. From the statement according to which Procuradores have “a great capacity of adaptation”, our colleague noticed that the small companies do not have the proper structure to carry out the collection of their debts. They entrust this to specialized agencies which “create a pressure against the debtors”. “There are each time more and more debt collection agencies which have no ethical rules and which charge prohibitive tariffs” she regretted. She proposed that the Procuradores, experimented, responsible and qualified professionals, with a tariff, deal with the collection of debts, which could then “become an important aspect of our activities”.
To echo to the intervention of Mrs Garcia Vine, Lorenzo Christian Ruiz Martinez, Vice-President of the General Council of the Procuradores of Spain, evoked the examples of the private debt collecting companies, such the “Cobrador del Frac”, which literally badger the debtors by exerting on them an unbearable pressure. One of the - degrading - services offered by these companies is to have the debtor followed by a person disguised as a toreador, a monk, a clown, etc, in order to shame him. Our fellow-member specified that if these practices exist, it is because of a lack of an effective system of enforcement in Spain. “The execution consists in a colossal quantity of processes near the judge” noted our colleague. The first solution of the very important backlog in the enforcement of court decisions would consist in entrusting the Procuradores with the service of documents within the framework of enforcement. “If the judge or his clerk authorizes the Procurador to achieve all the steps of the enforcement, one decision will be enough to take care of the whole of the process” indicated the Vice-President of the General Council of the Procuradores of Spain. It must then be envisaged to give to the Procuradores the full capacity of certification within the framework of the service of documents.

After these two very dense and promising days, President Isnard congratulated the Procuradores on the actions which they carried out within the framework of the enforcement of court decisions and the service of documents, whished them the success that they deserve and ensured them of the full support of the UIHJ to their noble and just cause.
Finally, after a superb dinner, it is under the rhythms of tango and paso doble that the seminar was completed... in a Spanish way!