A Perfectly Organized Event
The delegation of the UIHJ was lead by Jacques Isnard and consisted of Leo Netten, First Vice-President and of its Secretary, Bernard Menut. Our hosts also showed interest in the training of Judicial Officers. They had called for the participation of the French National School of Procedure, represented by Abel Didier Pansard and Patrick Safar.
The Judicial Officers of many countries took part in this first congress. There were Delegations of Belarus, Latvia, Germany, Tajikistan, France, Netherlands and the Russian Federation. This extraordinarily rich participation gave an aura of prestige to the whole meeting. The magnificent buildings of the Supreme Court added a special touch to this perfectly organized Congress, thanks to Mr. Iraq Yelekeev, Vice-President of the Committee of Legal Administration at the Supreme Court.
The contributions were of very great importance and the questions were numerous, indicating a great interest for knowledge from the Kazakh Judicial Officers.
A Relevant Alternative
For Mr. Bakhytzhan Abdarimov, President of the Committee of Legal Administration at the Supreme Court of Kazakhstan, the institution of the private Judicial Officer is considered as a relevant alternative to the current State situation. It is necessary that the citizen can choose between the private and the civil servant Judicial Officer. Kazakhstan wants to be directed towards an important evolution of the current situation of the legislation in order to improve the material situation of the Judicial Officers and to increase their capacities of intervention, in particular by allowing them a broader access to patrimonial information on the debtor.
Mr. Adilzhan Bayzhanov, Judicial Officer at the Court of Kostanay, underlined the poor material situation of Judicial Officers in Kazakhstan and called for a revalorization of this situation. He denounced the weight of the bureaucracy in the current system. In an excavated technical analysis, he showed how costly a civil servant is. A State civil servant costs 2 Million Tenge per annum (1€ = 1.65 tenge), so that the State engaged a process of rationalization which results in “getting rid of” State civil servants. A competitive concept must be integrated in the sector of justice and enforcement. One needs Judicial Officers with a certain competition between them. There are currently 1,700 Judicial Officers and 244 positions are covered (14%). One notes a strong rotation of the Judicial Officers (20%) higher than the national figure, which obviously underlines an “abnormal situation” of the function.
Jacques Isnard, President of the UIHJ, presented the actions of the UIHJ in the world. He recalled how much our organization is devoted to the promotion of the statute of the private Judicial Officer, which financially makes it possible for him to be autonomous. He reassured the audience on the fear of the unknown, which can legitimately torment the civil servant Judicial Officers of Kazakhstan. The president of the UIHJ underlined how much the private statute is a powerful stimulus for the effectiveness of his actions and the improvement of his material situation. The private system reduces the State budget while bringing resources in the form of taxes. The independent liberal model that the UIHJ proposes appears perfectly adapted to the changes wished for by Kazakhstan, and in particular, with the economic development of legal security. President Isnard concluded insisting on the imperative need for a high training level for the Judicial Officer of Kazakhstan.
Mr. Han Sung Cha, Vice-Minister for the Administration of the Justice of the Republic of South Korea, presented the Korean legal system, as well as the training system for the agents of justice. At this occasion, the UIHJ renewed its contacts with South Korea. Enforcement Agents serve legal documents, but they are not Judicial Officers as such - they are under the supervision of the Court. Currently in Korea, there are more than 300 Enforcement Agents who can obtain the assistance of the police force to carry out the decisions of court whenever necessary.
Regression of Negative Perceptions
Mr. Serguey Sazanov, First Vice-Director of the Judicial Officers' Service of the Russian Federation, indicated that size of the Russian Federation explains the significant number of professionals of the execution. There are 59,200 people committed to the process of execution of court decisions in the Russian Federation. Only half of them are Judicial Officers while the remainder of the personnel is of administrative nature. The activity of the Judicial Officers is rising. To meet the extra work, an important process of computerization was engaged in twelve areas. An important promotion campaign of the profession was carried out for the attention of the citizens of the Federation. Thanks to that campaign, the number of negative perceptions of the profession regressed in the minds of the population.
Mr. Meirkan Turgayev, Chief of the Department of Investigations of the Ministry of the Kazakh Internal Affairs, underlined one of the characteristics of the current enforcement system in Kazakhstan. Indeed the refusal to obey a court decision on behalf of a debtor is a criminal offense, which is carried out by the Public Prosecutor. But the debtor is exonerated from it if he is actually insolvent. This “criminal” support for the execution of court decisions seems however difficult to evaluate, and a better co-operation is desirable between the various actors of the enforcement of court decisions as well as with the courts.
Mr. Heinz Juergen Nagel, Head of the Control Department of the Activities of Enforcement Agents of Bremen (Germany), presented the German enforcement system, which is for the moment entirely implemented by civil servant agents with an “average” legal level. In spite of its Staff Regulations on civil servants, the German Judicial Officer can employ staff to help him in his task, but he must pay their wages himself. The German Judicial Officer receives wages between 2,100 Euros up to 2,800 Euros. Each action is priced, and the State gives a special allowance to cover the administrative expenditures of the office. An incentive allowance is transferred to the German Judicial Officer if he achieves his goals. The President of the Court maintains a control on the Judicial Officer, but he does not have the right to give him instructions. The declaration, under oath (declaration of inheritance), on behalf of the debtor is recorded with the Court, and any creditor can take note of this list of debtors. Mr. Nagel considers that this declaration of inheritance is a very inciting system to oblige the debtor to pay. According to him privatization must lead to important savings for the State budget (40,000 Euros per annum are transferred by the State to the German Judicial Officers for the functioning of their offices). In parallel, the suppression of such an allowance should increase the costs for the debtors.
A ceremony awarding diplomas to the more deserving Judicial Officers closed this First Congress, with a ceremony combining dignity and seriousness, but also fondness.
The Need for an Effective and Fast System
During the second day, Jacques Isnard made a detailed presentation of the UIHJ, its history and its objectives. With regards to the many countries present at this international conference, he made an important promotion for our organization and its actions. The president insisted on the major part that Kazakhstan would be able to play in the immediate future for the promotion of the ideas of the UIHJ.
Han Sung Cha presented the situation in South Korea and in particular the seizure of the goods in the South Korean legal system. The mode of execution takes into account the nature of the goods which are seized. Thus a specific mode exists for immovable, boats or planes. The Judicial Officers depend on the State, but are regarded as independent. They are assigned to a court and their number depends on the importance of the court. They serve documents and ensure the executions according to the requirements of the law. They profit from a high recognition on behalf of the legal authorities. During their actions other specialists like locksmiths can assist them.
Wolfram Eberhard, Judge at the Berlin Court, insisted on the need for a State to have an effective and fast enforcement system for court decisions. He considers that the private execution of the court decisions must be fair to all citizens, whether they are given to a private or public Judicial Officer. He, however, pled for a competition between Judicial Officers in order to render a better service to the citizens. The training of the enforcement agent is taken into account in the law. It must be as precise as possible so that it can meet its various needs.
Bernard Menut, Secretary of the International Union of the Judicial Officers, made a summary presentation of the recommendations of the Council of Europe (Rec 16 and 17/2003), which traces the concepts of an equitable enforcement of court decisions and other enforceable titles. It insists in minimum legal standards concerning the structures in charge of the enforcement of court decisions in the Member States of the Council of Europe. Of course, the countries can have more advanced legislations. Kazakhstan is not, for the moment, a member of the Council of Europe, but it desires to integrate this international organization where the UIHJ collaborates narrowly, in particular with the CEPEJ (European Commision on Efficiency of Justice).
Mr. Gunters Hmelevskis, President of the Judicial Officers of Latvia, made a presentation of the legal situation in his country, and in particular, that of the Judicial Officers. He referred to the evolution since the fall of the Soviet Union. In his capacity as a Judicial Officer he referred to his own experience. As a former civil servant Judicial Officer, he experienced very insufficient wages and a lack of training. Being now a private Judicial Officer, he explained how much the evolution represented a progress for him and for Latvian justice. The Independent Latvian Judicial Officer carries out his activity in definite territorial boundaries. (137 territories).
There are currently 100 Judicial Officers and a real competition is exerted between the Judicial Officers. The Judicial Officer has the essential function to carry out the court decisions, but also the service of documents and statement of facts. Information concerning the situation of the debtor is accessible to the Judicial Officer. The ethical requirements of the Judicial Officer are high and the initial training holds an important place. After his university degree, the Judicial Officer must be trained on a practical level. The discipline holds an important role in controlling the activity of the Judicial Officers. The liability for the Judicial Officer is covered by an insurance paid by the Judicial Officer. The Latvian colleague thus made a brilliant plea for the private system and the importance for the Kazakh colleagues to change the system and to quickly set up the private system, which was the subject of a law in Kazakhstan. For him, the private Judicial Officer is the best way to fight corruption.
Making the Judicial Officers More Independent
Professor Vladimir Yarkov, holder of the Chair of Civil Procedure at the University of Ural, presented the various systems of execution. While preferring to qualify the private system as being a “non budgetary” system, his analysis was conceptual and his presentation of the three models was remarkable - budgetary system, non-budgetary system and mixed system.
Mr. Makhmadisso Saidov, Judge at the Supreme Court of the Republic of Tajikistan, reported the development of the prospects of the law on execution in his country. Indeed a deep reflection is at hand to make the law evolve in a more effective direction. The Enforcement Agents are in charge of the enforcement of court decisions. The bill in progress proposes to widen the functions of the Judicial Officers by widening their competence, while making them more independent. The qualification and the permanent training are major topics for the improvement of the efficiency of the Judicial Officers.
Mr. Alexandre Orlov, Chief of the Judicial Officers of the Commercial court of the Republic of Belarus, evoked the service of the Judicial Officers created in 1998 at the Commercial Court. Eighty-One (81) Judicial Officers ensure the enforcement of its decisions (there would be approximately 300 Judicial Officers in all of Belarus). The Judicial Officer must have a high legal or economic training and a practical experience in the courts. The access to patrimonial information is done within a time allowed by the law and the Judicial Officer has access to a database containing all the bank accounts of the citizens. It seems however, that they do not have access to the database of the motor vehicles. Means of transport are placed at the disposal of the Judicial Officers to ensure their missions. The ongoing training of Judicial Officers is provided for law, and the expenses of the Judicial Officers, set to a total value of 5%, are transferred at the Central Service in order to ensure the wages but also to improve the material conditions.
High-Level Training for the Judicial Officers and Their Employees
Abel Didier Pansard, President of the French National School of Procedure, presented the School of Procedure and its history. He reported on the number of trainers and the activities of the school. He detailed the training processes, which lead to promote the students who follow the training courses. The training of trainers to the new teaching techniques attracted the interest of the participants. He confirmed the need for a very high level training for the Judicial Officers and their employees.
Leo Netten, First Vice President of the UIHJ, presented the situation of the covering of debts by the Dutch Judicial Officers. Insisting on the professionalism of the Dutch Judicial Officers, he mentioned that debt collecting, and in particular by amicable means, was to be regarded as a factor of development and diversification. The figures provided on this activity by Mr. Netten had the effect to arouse the participants' imagination (they are currently government officials). The wish of the Judicial Officers of Kazakhstan to create a very active profession and to increase their effectiveness, like their material situation, led them to very positively consider the Dutch experiment of the recovery of debts. Leo Netten finally insisted on the fact that, due to his ethics, the Dutch Judicial Officer brought all the necessary guarantees for the protection of both the debtor and the creditor.
Patrick Safar, treasurer of the ENPEPP Judicial Officer, made a very detailed analysis of the statutes of the Judicial Officers in Europe and in particular the duality of the liberal and civil servant statutes in Europe. He insisted on the performance and the efficiency of the professionals with a liberal statute compared to the government officials. In his capacity as an expert having taken part in the preliminary works of the new law of the Judicial Officers of Kazakhstan, he recalled the change within the last two years, and considers the process in Kazakhstan appears to be irreversible.
