A follow up to a mission that started in 2001
In the framework of the Fourth Joint programme between the Council of Europe and the European Commission for Moldova, that started in 2001, the Council of Europe had asked Mathieu Chardon, Member of the Committee of UIHJ, to participate in a seminar that was held on 3 and 4 June 2003 in Chisinau (Moldova) on enforcement of court decisions in civil and commercial matters (see the report in UIHJ Magazine n°16, p. 29). An assessment report for strengthening and developing the enforcement of court decisions in civil and commercial cases followed, dated 11 June 2004, was prepared by Mathieu Chardon and Barbara Göth-Flemmich, Judge in Vienna, expert at the Council of Europe.
For the follow up of this report, the Council of Europe asked Mathieu Chardon (France) and Jos Uitdehaag (The Netherlands), two members of the UIHJ Committee, as well as Franck Walterson, senior advisor at the Ministry of Finance of Sweden, also expert at the Council of Europe.
To prepare the September meeting, comments and opinion on the draft law on the system of forced enforcement of court decisions in the Republic of Moldova were prepared by the three experts during summer. The meeting was held during two days in Strasbourg, at the head office of the Council of Europe, on 1and 2 September 2005, in presence of Alexey Kojemiakov, head of the Private Law Department of the Council of Europe. Mrs Merete Bjerregaard, administrator of the Private Law Department of the Council of Europe, had perfectly organised the meeting and took care of the coordination of those two very fruitful days.
The Moldovan experts consisted of ElenaMocanu, Vice-Minister of Justice, Valeriu Devderea, Head of the Department for the Enforcement of Judicial Decisions, Elena Poalelungi, Head of Human resource and Public Relations Division, Angela Bostan, Head of the Hancesti Office of of the Enforcement of Judicial Decisions, Dinu Vataman, consultant, Legal and Normative Acts Elaboration Division, assisted by two interpreters.
The Council of Europe was also represented by Carsten Mahnke, Deputy Team Leader, the civil and commercial judiciary project, Moldova, and by Yoni Stojanova, assistant at the Private Law Department of the Council of Europe.
A dense program encouraging multiple exchanges
The program included an overview of the law enforcement system in Moldova by the Moldovan experts. The 11 June 2004 assessment report on Law enforcement in Moldova was then presented and commented by Mathieu Chardon. Problems encountered in the implementation of the enforcement Code and was of solving them were presented by the Moldovan experts and then debated with the Council of Europe experts, who shared their experience in this field and proposed possible solutions. The draft Law on the system of Forced enforcement of court decisions as well as the management and training of enforcement authorities in Moldova were presented by the Moldovan experts, followed by commentaries and discussions with the Council of Europe experts. The two days ended up with the proposals for follow-up activities regarding the enforcement of court decisions and the next possible steps to reinforce the system. The debates were very rich and dense, both during the two days of the seminar and the informal dinner that was organised by the Council of Europe on 1 September, during which every participant had the occasion to go deeper into certain aspect in a relaxed and friendly way.
A difficult situation calling for reforms
Globally, there has been little improvement situation of Moldovan Baillifs of the Republic of Moldova and enforcement measures since the visit of the Council of Europe experts in Chisinau in June 2003. After the Second World War, court clerks were in charge of enforcing court decisions directly under the supervision of the Judge. In 1964, the functions of Court Bailiffs were created. Bailiffs were mainly asked to enforce court decisions. Due to the increasing workload during the seventies, there was a modification period, which took a long time. In 2002, the Department of the Enforcement of Judicial Decisions (DEDJ) was created. During three years, the DEDJ concentrated his actions to clear the backlog of un-enforced court decisions (65% of the 120 000 court decisions given in 2001 remained un-enforced). Towards the end of 2003, it was established that a number of 380 000 court decisions to enforce, the annual workload having tripled since 2001. The backlog has since been absorbed but it is known that today, around 450 000 court decisions are to be enforced every year.
The DEDJ includes 445 persons in total - 50 persons in the Central office and 395 in the 42 territorial Sub-divisions, each of them under the supervision of the head of territorial Sub-division.
A vice-director is appointed when the Sub-division included more than 20 Bailiffs and more than 20 000 court decisions to enforce annually. From 2005, secretariats were organised to collect and record documents for the purpose of solving problems.
One of the main problem is the recruiting of personnel. Two vice-directors have been missing for a year. The Ministry of Justice cannot find the qualified person for those posts. All possible candidate refuse the application. They find the salary too law and the responsibilities two high. There is not enough equipment, not enough means of transportation and not enough office space for the personnel.
There are also problems in training. There is no academic course at University regarding enforcement of court decisions. In the end, the persons that accept to work in the DEDJ are often young people who want to have a professional experience that will allow them to move on as soon as possible. They also are sometimes the ones who couldn't get another application in the other administrations of justice (police, magistrate, ... ).
In the new law, Bailiffs can obtain information regarding debtors (bank accounts, address, employers, personal assets, ...) directly from the concerned entities (social security, banks, cadastre, ...). But those entities complain that given those information is costly and that they have not the sufficient staff to meet Bailiffs' expectations. A network must be created but there is unfortunately no budget at the moment to create such a system.
The professional training is operated using two means: internal, in an office, and external, in a training centre of the Ministry of Justice. The internal training is organised by the heads of offices. A training program is set up. But after an assessment, it appeared insufficient. Seminars and conferences are organised in the local territories. At present, only 180 enforcement agents are trained, due to lack of funding. Furthermore, it is difficult to attract students, due to law salaries, and there are no Law professors specialised in the field of enforcement of court decisions.
Discussions about a possible setting up of a liberal profession for Bailiffs and for training
The system of enforcement does not work as it should. The Moldovan experts acknowledge that their system is not perfect and that the multiple cases held at the European Court of Human Rights have been lost by Moldova on numerous occasions. Moldovan are wondering which system could function better, maybe using a mixed system (civil servant or independent liberal professionals) or only independent liberal professionals. They have asked the assistance of international expert who are accustomed to this debate and who could help them solving it. The Moldovan representatives also declared they stood ready to discuss the possibility to set up a Bailiff profession based on a French or Dutch model.
Concerning training, the aim would be to organise 3 months training courses (it appears at present unrealistic to propose an 18 months training like for the Judges) and to set up an ongoing training. For that purpose, 5 to 10 trainers would have to be trained in order to organise the basis of such a training. Once again, good will and experience of other States are required. Mr Devderea also insisted on the fact that the role of the Council of Europe was decisive for the preparation of trainers amongst Bailiffs. It should be necessary, he continued, to train them on theoretical and practical international aspects of enforcement. For us, this is very important. It would help us to adapt our legislation to whatever is the norm elsewhere, for a more efficient harmonization.
A inevitable bringing together with UIHJ
At the term of the seminar, the Council of Europe experts proposed for a delegation to come to Paris to attend the UIHJ Permanent Council that will take place on 24 and 25 November 2005. This exceptional participation would allow our colleagues from Moldova to get acquainted with no less than the 40 delegations from all around the world that regularly attend this international event. On that occasion, a visit to Bailiffs' office in Paris and Versailles, as well as a visit to the head office of both the French National Chamber of Bailiffs and the French National School of Procedure would also be an efficient way of making many contacts that would help the Moldovan representatives to get on with their reforms. The UIHJ and its president, Jacques Isnard, is strongly in favour of this perspective and declare their full support to Moldova in the reforms it wished to undertake.
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