An Exceptional Event
Supreme body of the Union before of the permanent council and the board, the international congress of the UIHJ consists of all the judicial officers depending on national chambers or associations representing the profession. Its resolutions are compulsory. It is within this framework that the UIHJ organizes its international congress every three years, in turn on a different continent. It was the first time since 1952, date of the first congress of the UIHJ in Annecy that this demonstration was to proceed again on the French soil. Rightly, it is Marseilles - second town of France and stronghold of the president of the UIHJ, Jacques Isnard - which was selected to accommodate the supreme body of the UIHJ. The event was all the more exceptional as Jacques Isnard was to put a term at fifteen years of an uncontested presidency at the head of the UIHJ, due to an amply deserved retirement. The event was also exceptional by the extent and the value of work presented. It was about determining the place of the judicial officer in the law, in the State, and in the world. Forty-three speakers - judicial officers, law professors of international repute, and international experts from twenty-six countries of four continents, followed one another at the floor. Everyone agreed to recognize the very high-quality of the debates and the excellence of the organization.
In the main auditorium of the Palace of Congresses of Marseilles, time has come to solemnly open the 20th international Congress of the UIHJ. With his legendary wit, Jean-Claude Gaudin, Senator Mayor of Marseilles, opened the ceremony. He started by thanking the high-ranking Magistrates, including Vincent Lamanda, First President of the French Court of Cassation, who honored the meeting by their presence. He also thanked the local magistrates and prosecutors for the assistance they brought to the city in the management of the often dramatic difficulties that it met this last summer (collapse of the stage of Madonna at Marseilles' Stadium and fires in particular). He said how delighted he was by the honor made to Marseilles as the world capital of the judicial officers in 2009 before being the world capital of culture in 2013. Marseilles, as France's second biggest city, is a town opened to foreign countries and to generosity, and to quote Blaise Cendrars: “Marseilles belongs to those who come from the open sea”. He pointed out the fundamental role of the judicial officer in the fundamental Rule of law for possible litigants.
Guy Duvelleroy, president of the French National Chamber of judicial officers said how proud France was to accommodate the whole world in Marseilles. Justice is one of the fundamental stakes of the 21st Century and requires the cohesion of the professions of law. This must be done around three axes: modernization of the professions, controlled dematerialization of procedures, and competitive adaptation. This congress is exceptional for many reasons: the number of participants, approaching one thousand, but also the audacity of its work, in particular regarding the classification of goods, and the end of President Jacques Isnard's mandate, a visionary man. “With passion and determination President Isnard has been, for fifteen years, an ambassador of law in the world, a representative of freedom, a force of proposal with conviction and efficiency.” Then, the French president indicated that, even during a period of crisis, the judicial officer can bring a true added value to the citizens and the Rule of law while finding sources of valuable activities if he is a professional with an independent statute. Before concluding, Mr. Duvelleroy thanked the organizers of this congress - “a small team by the size but big by its efficiency”-, its general reporter, Francoise Andrieux, as well as René Duperray, general secretary of the UIHJ and Luisa Lozano, secretary of the UIHJ.
Then Pascale Fombeur, director of Civil Affairs for the French Ministry of Justice, reminds that the judicial officer is the recognized authority to prevent private justice. Upstream, he guarantees the respect of the presence of the parties by the information of said parties; downstream he guarantees the right to the enforcement of a decision, which is a corollary of the right to a fair trial. Thus the essential mission entrusted by the state to the judicial officers, some of whom being government officials, other liberal professionals. Defending the service of documents by judicial officer, in particular the electronic service, Mrs. Fombeur greets the quality of the work of the French National Chamber of judicial officers and the UIHJ in connection with the Chancery, and encourages the ambition and the long-term planning of the UIHJ in Europe and in the whole world.
A Great Profession of Enforcement
President Jacques Isnard pointed out how honored the UIHJ was to be accommodated in France. It is a return to the sources, since the Union was founded at the congress of Annecy in 1952 on the initiative of President Jean Soulard. He thanked the French National Chamber of Judicial Officers: “The Street of Douai is the house of all judicial officers from all over the world”. He greeted the size of the Greek delegation (do not forget that Marseilles was founded by Greeks from Phocaea towards 600 BC.) and the size of the Cameroonian delegation. The spontaneous execution being illusory, the judicial officer is the unavoidable pivot of the Rule of Law around three pillars: judge, lawyer, judicial officer. Though under which statute? Until 1990, few States were concerned. Then, a conjunction of major events intervened:
- Policies (fall of the Berlin Wall, collapse of the Soviet block);
- Economics (single European market, the Hague Convention in 1992, Ohada treaty in 1993);
- Legal: first steps of Community projects.
Thanks to the perspicacity of Baudouin Gielen, the Belgian President of the International Union, the congress of Warsaw in 1994 decided to extend the liberal statute. From 1996, the statute of the judicial officer as being liberal, independent and private has being copied from the French statute and is still today. Nowadays, all continents have adopted this statute, in particular 19 member states of the European Union and 27 African states. This harmonization supposes an ethical framing and a professional liability. Can one doubt the future of the liberal judicial officer as being independent and private? That is improbable because no liberal statute has ever got back to being civil servant and he is the guarantee of legal security. Jacques Isnard concluded by preaching a great profession for the enforcement of movables and immovable and multi-field activities (post-legal mediation, auctions, bankruptcies, declaratory instrument under private signature...).
Then Francoise Andrieux, general reporter of the congress, put forward the obviousness of the choice of Marseilles to accommodate the congress. It is the town of her ancestors and a plural city: ethnic origins, culture, religious. The mixture created the harmony. The harmony will be the wire of Arianne of this congress. It is the result of the bonds between law and economy and economy and justice. The “Law and Economics” (economic analyzes of the law) consists in subjecting legal concepts to an economic micro-analysis. This analysis seeks the effectiveness of the court order considered as a result. Efficiency concerns the organization of justice, its actors and bodies and their respective attributions, as well as the enforcement of the decision. If the economy wants to be a science which observes facts and seeks their causes, the law on the contrary has the role of creating standards. The law must be observed through the economic prism. The extreme diversity of goods calls for finding criteria of classification. Property law on these goods is a base of our society. The law must remain in tune with its environment by respecting a certain flexibility to guarantee legal security. Is the law of the market compatible with justice? Economic freedom and justice are not opposite but complementary through the concept of trust. Economy needs legal security in the Rule of Law. Francoise Andrieux convinces us that the judicial officer is the pillar of the Rule of Law, from his training and his place in the middle of economic relations. And to point out to us the quotation of Pierre-Gilles of Genoa “The true point of honor is not to be always in truth. It is to dare, propose new ideas, and then to check them.” It is by these words that was closed the opening ceremony of the 20th international congress of the UIHJ.
After a reminder on the structures, the objectives (principal and collateral) of the Union, president Isnard commented on the six objectives developed by the UIHJ. They all were largely filled during his term of office. The UIHJ took part in the general meetings of the United Nations in New York and in Paris, was present in Brussels within the “Forum”, the European Judicial Network and E-Justice. As regards the Council of Europe and the CEPEJ, the UIHJ took part in the meetings concerned with its statute of privileged NGO where it integrated the CEPEJ GT-EXE working group on enforcement. It continued its fruitful cooperation with The Hague Conference on Private International Law. The president put forward the international actions; he gave a report of the six seminars, the six conferences on the statute and the activities of judicial officer, of the six conferences on enforcement procedures, the seven days of study and of the four international missions. He insisted on the widening of the Union with seven new members and summarized the activities undertaken by the International union, while emphasizing that the Union took part in 118 meetings compared with the 93 during the preceding term of office. He finished by thanking very cordially the collaborators who worked hard throughout these three last years.
The 1st workshop, with for topic “the change”, proposed to reflect on a harmonization of the classification of goods and the need for a new concept of contract law.
The first of the two parts of this workshop treated the harmonization of the classification of goods.
For Aïda Kemelmajer de Carlucci (Argentina), judge at the Supreme Court of Mendoza, Professor at the Law Faculty of Mendoza, member of the Scientific Council of the UIHJ, under the concept of “good” one finds all and anything, an ox, an egg, but also the Renault factories, a ticket of one hundred Euros, or the pond of the Town of Avray. Expressions such as “objects” and “goods” contain notions relating to the evolution of human civilization. Today, there are new material and spiritual needs. Mrs. de Carlucci endeavored to give various definitions of the notions of good and object, etymologically and according to various legislations.
For a long time, we hear that an object is tangible when it is likely to be immediately perceived by our senses. It is intangible when it is perceived only by our intelligence. It is sometimes difficult to classify certain “goods”, for instance the human body and its components, a corpse, ashes of a corpse, animals, clouds, wastes from a hospital, etc. In addition the environmental protection has been producing material changes for a certain time.
Then, the speaker approached the need for classification of objects and goods to know which legal mode to apply. The majority of codes classify goods according to a double point of view: - compared to the goods in themselves; - compared to the people to which they belong (State, private individuals, church, etc).
Professor de Carlucci finally evoked the obsolescence of traditional criteria following the changes which have occurred and to occur in the factors that condition the legal diagram: “Legal classifications are likely to become partially or completely inappropriate with the sought-after goals, unless gradually carrying out corrective interpretations necessary to the adaptation of the respective standards so that they can be effectively applied to a reality that constantly evolves.”.
For Maurice Tancelin, former Professor at the University of Laval (Quebec), after the 1930 crisis, one attended a change related to the handling by the economists on the American way of thinking. This prevalence appears in the separation of property and control of businesses; it is integrated into the “New Deal” programme of Roosevelt.
In 1960, Cowes, an English economist who will obtain the Nobel Prize in 1991, states that the production factor in a society is the right to achieve actions with economic goal conceived as laws. In large businesses, the caused wrongdoings must be admitted as the simple negative effect of the positive effect of production (i.e.: pollution). It is at the base of the economic analysis of the law. The capacity of the judges is extraordinarily developed in North America (“The code says the things, the judges make the law”), contrary to the countries where executive, legislative and judicial powers are better distributed.
Professor Ioan Les, Dean of the Law Faculty of Sibiu (Romania), member of the Scientific Council of the UIHJ, then stated that a modification of the classification of goods is possible, but difficult. The law of goods was never considered as the best part of the civil code, the more so as the category of goods of agrarian origin is obsolete.
It is not natural to divide the monopoly of distraint. Thus, lawyers and notaries do not have the same competences. Doctrinal evolutions are spectacular. Certain authors propose to create a special category of goods, which would end up in three types of goods (movable, immovable, animal), the distinction between movable and immovable being outdated, and the saying “when it comes to movable, possession means ownership” being challenged.
Then Professor Les studied diverse legislations (Canada, Netherlands, Austria, Spain, France, Chile, Romania,...) to come up with the idea of a new classification between registered and un-registered goods in various files (land, administrative,...). According to him, registration allows the legal security of goods, with a specific legal mode for registered goods, without however completely forgetting the movable/immovable classification.
After having pointed out the historical origin of the classification, in the French civil code, between movable and immovable goods, Odile Dunaud, judicial officer in Thiais (France), endeavored to show that other classifications can be put forward. A real estate, a valuable and productive source of income, is no longer an inheritance with the passing of years. At the 20th Century, fortunes based on movables develop considerably. New wealth falls into the category of movable goods. This classification based on a physical criterion, fixity or mobility of goods, involves consequences on legal publicity, securities, the theory of possession and on the difference in value between immovable and movable goods. Our colleague affirms that this classification became unsuited. Other distinctions could be considered.
Through examples and legal cases, Odile Dunaud initially reminded that immovable can be classified in three categories: by their nature, by their destination or by the object to which they apply. As for movables, they are characterized by their nature or by the determination from the law.
Movable goods are divided into tangible (material objects) and intangible (rights) goods. However this major distinction is completed by various secondary distinctions. Doctrines offer other classifications with legal consequences. One finds for example consumable goods and consumer goods. Fungible goods also exist, as well as owned and property-free goods, or goods in and out of trade. One can also take into account the value of the good with capitalization and consumption goods and fruits and products.
Also, a classification only based on physical criterion of the goods and the rule “res mobilies res vilis” as it was set by the writers of the French civil code is outdated. A grooming of the rural world of 1804 is insufficient. Is the classification based on the criterion of value satisfactory? To try to answer this question, the speaker focused on proposing a new classification of goods. “The advent of the immaterial must encourage us to reconsider the law of goods” she said. One of the lines of thinking results in claiming that true goods are not things but the rights attached on these things or which indirectly lead to get them. The other track is that suggested by the European Convention of Human Rights and that of Article 1 of its protocol n°1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”. Then Odile Dunaud evoked the contracts of trust and their incidence in French law. Also it is necessary to think in a line of international economic exchanges with common general principles independent from the systems of Common Law or Roman-Germanic law. The concept of value is in the middle of a new classification of goods, the term of “good” being regarded in the broadest possible acceptance as being the rights having a pecuniary value and registered as part of the assets of a natural or a legal person, as opposed to extra patrimonial rights. The judicial officer must be in the middle of this classification since he ensures the execution on the debtor's assets by the implementation of civil enforcement procedures both on movable and immovable goods and, we hope for it in the very near future, is the conductor of the seizure of immovable. According to Odile Dunaud, this approach should have an international influence while moving from an objective and static vision of things to a subjective and dynamic description of real or personal obligations.
If we say to you now that these enthralling debates continued at the time of the cocktail offered by the National Chamber of the judicial officers of France in a magic place, the Palace of the Pharo, would you believe us?
Work resumed on Wednesday 9 September with the second part of the first workshop. The topic related to the consequences of the harmonization of the classification of goods on the necessary adaptation of Contract Law. The workshop was chaired by Francoise Andrieux.
Mathieu Chardon, judicial officer in Versailles (France), 1st secretary of the UIHJ, carried out a comparative study between the systems of civil law and Common Law, as regards contracts and their un-enforcement. The analysis was made at European but also international level. For our fellow-member, a new classification of goods and a reform of the contract make it possible to consider new activities for the judicial officers, at the service of the law and the citizens, while placing “the judicial officer in the middle of the contract”. Mathieu Chardon illustrated his remarks by presenting the “made safe” contract by the judicial officer: a contract in which this professional would intervene at all the stages of its life. And to conclude: “the contract law, leant with a new classification of goods, represents a gigantic think tank from which the judicial officers can draw to propose concrete solutions to the endemic problems which are the legal insecurity, the increasing complexity of economic exchanges and the backlog of courts”.
Anton Jongbloed, professor at the University of Utrecht (Netherlands), member of the Scientific Council of the UIHJ, indicated that in the Netherlands, before the civil code of 1992, the classification of goods was done between movable and real property. The civil code instituted that a movable is any property which is not real. To classify goods, several criteria can be taken into account, in particular the use which is made of the good. According to classification, the judicial officer will intervene more or less easily.
For Claire Sandbrook, sollicitor, president of High Court Enforcement Officers Association (England, Wales), in the British system of enforcement, the judicial officer must wonder which goods can be subjected to distraint. Two categories of goods are considered: tangible goods that can be seized, and tangible goods that cannot be attached through distraint. Courts determine what is attachable or not, following various criteria (human, economic ...). The difficulty is on two levels: this system does not make it possible to classify goods, and the decisions of the various jurisdictions can be contradictory.
Robert Emerson, professor of Business Law at the Warrington College, University of Florida (USA), made a brilliant and humorous introduction, attired in various hats related to various topics, like when lecturing his students. Then he continued his passionate topic wearing a Napoleon hat, symbol of the Civil Law! Economy influences justice and the mode of classification of goods, which can be goods or services, and will be subjected to the law of contracts (i.e.: is a fuel delivery a good or a service? Interpretation can make it possible to win or lose the trial!). The difficulty is increased because of a lack of a uniform law. No foreign law currently being currently taken into account by the Federal Supreme Court, Professor Emerson proposed exchanges between the various world systems for a harmonization.
Following this intervention, a roundtable was held on the practice of contracts in the economic world and the alternative modes of conflicts resolutions. Took part in this roundtable Claude Brenner (France), Professor at the University Paris II, Pantheon Assas, Sue Collins (USA), constable, deputy vice-president of the UIHJ, Nicola Hesslen (Sweden), permanent secretary of the UIHJ for the Scandinavian States, Jerome Okemba Ngabongo (Congo), judicial officer, and Piemonrat Vattanahataï, Judge, professor at the Law Faculty of Bangkok, member of the Scientific Council of the UIHJ.
Claude Brenner treated the post-judicial mediation, under a French angle. Distraint took a central place in economic relations and especially in contracts related relations. For him, at the dawn of the 21st Century, the phenomenon of “un-judiciarisation” of distraint is seen associated with the re-discovery of the “virtues of negotiation and the agreement of parties”, but at a post-judicial level and under the form of an institutionalized mediation. Initially, Professor Brenner considered the possibility of such a mediation through on one hand, the obstacles relating to the basic right to enforcement (the force of the contract, right to distraint), and in the other hand, the obstacles relating to the legal organization of enforcement (legal organization of distraint, voluntary planning of distraint). Then, the speaker specified which can be the methods of the post-judicial mediation. “The conceivable methods of the post-judicial mediation must be clarified under a double angle: that of the functions of the mediator and that of the scope of the imposed preliminary on the ground of enforcement”. Among the functions of mediator, he distinguishes the object from the mediation, a kind of “invitation made to the debtor to state to the claimant the possibilities of an alternative - but still satisfactory - enforcement”, and the choice of the mediator, on the subject of which the judicial officer should “appear in good place among the agents who could be invested with this function”. Lastly, on the scope of mediation, Professor Brenner estimates that it should constitute an obstacle to distraint sanctioned in case of infringement by the withdrawal of the enforcement procedure and by the possible responsibility of the claimant and the judicial officer, under the condition, of course, to subject enforcement to a preliminary mediation attempt to the appreciation of the judicial officer, or establishing a reciprocity of the responsibility between the creditor and the debtor.
Sue Collins spoke about the practice of contracts in the United States based on her experience as constable, function which is similar to the Sheriff of South Africa, or the Enforcement Officer in the United Kingdom. She described several of the effects attached to the contracts. The contract which she negotiates with her customers makes it possible for example to establish or outline the authority and scope of the work to be provided to the client, to set the price and length of time the work will be provided, and the whole of its terms. This enables her to plan for the costs, the number of personnel needed to be hired to provide the services and the equipment needed in the office and in the field. A contract also provides exclusivity for the agency. A contract can include a provision that any problems or conflicts concerning the contract can or must be settled by arbitration without court action. In the United States, there are several ways to obtain a contract. Two of those methods are by private negotiations with individual clients or by a bid process for larger clients and government entities. Some larger firms also use this second process to obtain services for their work. It is a requirement that these agencies publish that is called an RFP ('request for proposal”). Then Sue Collins proposed several spheres of interventions being able to be assured by the judicial officers, among which arbitration and mediation, or the work of investigation which replaces statements of facts in certain countries.
After having pointed out the various kinds of mediations and described the role of the professionals able to implement it in Sweden, our colleague Nicola Hesslén, who exerts in Gothenburg, took to compare mediation such as it is practiced in Sweden and in Denmark. In Sweden, mediation is voluntary or judicial and, in all cases, consensual. Judicial mediation makes it possible to solve 80% of litigations, but it is prohibited to the Swedish judicial officers, because incompatible with their civil servant statute. Mrs. Hesslen asked herself: “Today in Sweden judges, lawyers and experts carry on this activity of mediator. But why judicial officers, who have the same high level training as judges and lawyers cannot carry out this activity? ” From this comparison, although both countries judicial officers are civil servants, there is a great difference between these two States. In Denmark only a judicial officer can be mediator. Why consequently not compare the two countries and propose the activity of mediator to Swedish judicial officers? Such a proposal seems to fit within the framework of the will to harmonize the training and the activities of judicial officers in Europe.
In his turn, Jerome Okemba Ngabondo evoked the practice of contracts in the economic world and the modes of conflict resolution in his country. In Congo, the contractual practice in the economic world focuses on “an African solution”, i.e. an amicable resolution of conflicts, which finds its greater expression in the “palaver”. Among the alternative modes of conflicts resolution, one finds conciliation and mediation. Conciliation is envisaged by the Code of civil procedure. The parties can resort to it to any stage of the litigation. It also exists as regards preventive resolution or employment disputes. Mediation, as for it, is ensured by the mediator of the Republic. In parallel there are ad hoc bodies of alternative conflicts resolution. These bodies are for examples stipulated by the parties in their contract by means of arbitration clauses. “This is where we have to consider the role or the part which can be played by the judicial officer” estimated our fellow-member. This professional is seldom designated as mediator or conciliator. For as much, he “becomes an element of conciliation when he serves a summons to pay or performs a conservative measure”. Then the speaker explained in what way alternative modes of conflicts resolution can be means of transformation of the Congolese economic and judicial area. These alternative modes can act as “palliative to the clutter and the slowness of courts” and also as “key elements of the creation of dedicated bodies of conflicts resolution by the economic actors”.
Piemonrat Vattanahathai indicated that in Thailand the use of alternative modes of conflicts resolution becomes increasingly frequent and occupies an important place in the resolution of disagreements. The resolution by way of mediation and conciliation is spread throughout the country and in all the jurisdictions, including the Courts of appeal and the Supreme Court, which helps ensuring public peace beyond the distraint of the law. Piemonrat Vattanahathai brilliantly exposed the legislation in force on the matter in Thailand, before evoking the practice through examples resulting from her personal experience. Taking into account the many interests of the alternative modes of conflicts resolution for the parties, the courts and the State, a bill will be voted to introduce mediation at and outside courts and will impose even for certain disputes an obligation to mediate before any legal procedure, which means that the courts will only be addressed to in the last resort.
The subject of the second workshop was “the opening”. The topic of the afternoon, “The judicial officer in the world”, was entrusted to the team of Rose-Marie Bruno, judicial officer in Arles (France). A historical background on the occupation of judicial officer in the world and on the creation of the UIHJ in 1952 initiated the work.
Our colleague exposed the points developed by the various congresses of the past twenty years which fixed the will of the UIHJ to set up an independent liberal judicial officer with a high level of training: a professional - the professional - on all continents who carries out his multiple and varied activities. This multi-field activities on a world scale calls for the recognition of a great profession of enforcement which includes all the sides of the resulting activities. Within this kaleidoscope of activities, a special place must be held for the statement of facts which makes of the judicial officer the main administrator of evidence. The team of the congress proposed the creation of the statement of fact with universal evidence value, which is a transposition of a de facto situation, illustrated by the digital statement of fact. Through the authentic document under private signature, the judicial officer acts as the council of the parties, who of is capable to authenticate their wills. A great profession of enforcement, yes! But for what activities?
The second part of work focused on proposing the establishment of common standards at the service of a worldwide enforcement. That supposes a procedure in each country which respects the conditions of article 6 § 1 of the European Convention of Human Rights. It is the option chosen by the team of the congress. A title which travels without borders supposes the mutual recognition of legal decisions in the world.
Europe showed the way with the Brussels I Regulation which laid the bases of a reduced exequatur and the European Enforcement Order. The recognition of the titles at world level must take account of the coexistence of the Civil Law and the Common Law. To allow an effective and fast cross-border enforcement, it is necessary to give the judicial officer access to information on the assets of the debtor wherever he is located. It is the first standard selected. Enforcement professionals could consequently exchange their files under cover of professional secrecy. To allow world enforcement by means of cross-border enforcement measures, such was the second standard selected. Following the example of the Mareva injunction which allows a London judge to order conservative measures in another country, it is necessary to think of cross-border enforcement measures. Such was the problems subjected to the perspicacity of Professor Cuniberti. We must go towards a great enforcement profession at the service of structural enforcement standards at worldwide level. Enforcement law is not an “evolving law” but “the law of the future” was the conclusion of Rose Marie Bruno, before giving the floor to the first speaker.
For Carlos Calvo, President of the National chamber of the judicial officers of Luxemburg, in the countries of Latin law, whereas judicial officers are by principle the only professionals able to carry out legal decisions, several provisions contradict this monopoly (seizure of salaries, seizure of property). In Luxemburg, the judicial officer carries out the valuation and the public sales of tangible and intangible goods, as well as harvests. Notaries are the only ones to carry out the public sale of immovable. Collaboration between judicial officers and notaries would be more adapted. The judicial officer would ensure the public sale of immovable. He would then cash the money and would pay the creditors. The notary would be limited to the authentication of the sale and to the land publicity. In Romania, Hungary or Estonia, the sale of immovable is done by the judicial officer and is supervised by the judge. That functions with wonder. Judicial officers are effective and fast. Carlos Calvo invited for this purpose the various delegations and the UIHJ to focus on the White Paper of 18 December 2007 on the Integration of EU Mortgage Credit Markets presented by the Commission (COM(2007) 807 final). Indeed, the European Community considers that Member States should improve the effectiveness of their procedures of compulsory sales and land recording. He evoked an additional possibility to feed the multi-field activities of judicial officers by indicating that in Luxemburg judicial officers proceed to the auction of unrated bonds at the stock exchange.
Anne Kérisit, judicial officer in Douarnenez (France) indicated that to prove is to try to make a right recognized as the truth. Evidence is thus the demonstration of the existence of an act or a legal fact having legal consequences. The judicial officer is the professional of the evidence everywhere in the world. By the means of statement of facts, the judicial officer brings a guarantee of objectivity and impartiality. Then, why not assert a statement of facts with universal convincing value in the case of purely material observations which do not call for any opinion on behalf of the judicial officer who carries out the work and which should be only the transposition of a material situation? Two examples of this type of statement of facts are immediately applicable: the statement of fact on the posting of the existence of a building permit and the Internet on-line statement of fact.
Marc Schmitz, judicial officer in Saint-Vith (Belgium), quaestor of the Committee of the UIHJ, presented the amicable collecting of debts. For our fellow-member, this matter constitutes today “one of the key fields for the future of the profession of judicial officer”. He then attempted to define this matter by wondering whether the terms “collecting” and “amicable” were not opposed. The collecting of debts, whether judicial or extra-judicial, is the natural task of the judicial officer. The creditor prefers to have one partner for the recovery of his unpaid debts, throughout all the procedure. In the Netherlands, judicial officers can not only make extra-judicial covering and distraint, but also can represent the creditor at court to obtain the enforceable title. All the procedure of covering is thus in the hands of the judicial officer. “Here is an example of a perfect multi-field activity” said our fellow-member. But that is not the case in many countries, not only in those where the judicial officer is civil servant, but also in countries like Luxemburg or Belgium. The phase of “pre-judicial” collecting makes it possible to draw aside a great deal of files from the courts, already strongly encumbered by the current workload. Moreover, for small debts (under 100 Euros for example) court fees and lawyer expenses are considerably more important than the debt itself. This is why Marc Schmitz suggested an extra-judicial debt collecting with shared expenses “not to penalize the creditor in good faith who wishes to carry out a last amicable attempt before turning to the judicial phase, but also to remind the debtor his responsibilities in the event of late payment for his debt”. And to recall that the judicial officer, and only him, in his capacity as neutral member of a legal profession, can guarantee to all parties the respect of their rights within the framework of an extra-judicial covering. Subjected to strict ethical and disciplinary rules, he will act so that any extra-judicial covering will become a true covering by amicable agreement. Consequently, “Collecting” and “amicable” are not contradictory!
Then, Jos Uitdehaag, judicial officer in Etten Leur (the Netherlands), 1st quaestor of the Committee of the UIHJ, presented the whole of the reforms existing in the Balkans countries and which turn to the creation of a liberal judicial officer, in particular with the help of the Balkans Enforcement Reforms Project (BERP): Albania, Bosnia & Herzegovina, Croatia, Kosovo, Montenegro, Serbia, and the Former Yugoslav Republic of Macedonia (judicial officers of this country have already adopted this statute).
Gilles Cuniberti, Professor at the Universality of Luxemburg, wondered about the liberalization of the circulation of judgments or enforcement titles then to that of enforcement measures. The Hague Conference on Private International Law tried to negotiate recognition of the judgments on a worldwide scale. This attempt did not work out due to the abandonment of the United States because of its refusal to acknowledge an extension of the Brussels Convention to the Northern American continent and the European presupposition on what is a court. However, two exceptions were presented: the New York Convention on arbitration, embryo of a liberalization of the circulation of enforcement titles as well as the 2005 Hague Convention when the court was chosen by the parties. He stressed that the preliminary service by a local judicial officer of the decision is the indispensable condition of this liberalization. The extraterritoriality of the conservative measure was consecrated in London by the Mareva injunction which allows for the freezes of assets of the debtor even when they are located abroad. The installation of standards of enforcement and the European model of the international seizure of banking assets, single instrument, are the start of the liberalization of the circulation of enforcement procedures.
Vladimir Yarkov, professor at the University of Yekaterinburg, member of the Scientific Council of the UIHJ, initially presented the broad outlines of enforcement law in the Russian Federation and, in the second time, a panorama of international enforcement rules in his country. Professor Yarkov insisted on the importance of the Federal Service of judicial officers of Russia, which takes account of several factors: an immense territory, a “very peculiar mentality of the population”, and a transitional period of the national law and economic. The Federal Service counts today nearly 65000 civil servants including approximately 24000 judicial officers for a population of approximately 142 million inhabitants. In 2008, approximately 36 million decisions were put to enforcement, of which 10 million related to road infringements. Mr. Yarkov indicated that the idea of a liberal system is strongly discussed in Russia since the Nineties but that no decision was still made. The speaker indicated that there are two types of judicial officers in Russia: those who ensure the execution of the enforceable decision and those who ensure the safety of courts. One of the problems underlined by Vladimir Yarkov is the rate of enforcement on pecuniary debts of natural persons which is very low since it does not exceed 10 to 15% as regards private law. Another is the overload of the judicial officers and the very important number of enforcement cases, in particular out of administrative matter (approximately 70%). In conclusion of his presentation, Mr. Yarkov indicated that the Russian Federation bases its system of enforcement of legal decisions on the values of the European Convention of Human Rights and estimated that the economic development of his country will be able to be of considerable influence on the improvement of enforcement law on the national territory.
Adrian Stoica, judicial officer in Costanzia (Romania), member of the board of the UIHJ, author of a recent thesis of doctorate on the seizure of immovable, evoked the emergence of structural standards to the service of the installation of an enforcement law. Adrian Stoica recalled that lawsuit and enforcement are regarded as part of the notion of fair trial within the meaning of article 6 of European Convention of Human Rights. He indicated that the position of the Council of Europe on the harmonization and the effectiveness of enforcement procedures is currently very “energetic”, and that it is actually the first source from which positive norms result. The jurisprudence of the ECHR constitutes a second source of structural positive norms. The right to enforcement exists when the debtor voluntarily does not carry out the terms of the decision which was returned and when the creditor wishes the implementation of this decision. Enforcement law represents the uniting structure of procedure rules or the technical procedure mean to restore the creditor in his rights, by the application of the enforcement title. And our fellow-member to give an outline of the main features of enforcement law, amongst other things:
- A branch distinct from other branches of the law;
- An autonomous law of the substantial law;
- A law having specific basic principles based on those governing the whole of the judicial activity;
- A law made up of an ensemble of procedure rules having for object enforcement;
- A law recognized for the creditor and placed at his disposal.
In conclusion, for Adrian Stoica, enforcement law will constitute the guarantee of legal positivism for the parties with enforcement procedures.
In the evening was held the traditional dressed-up evening at the Palace of the Congresses. In a convivial and relaxed environment, the participants could admire the splendid traditional outfits from all countries, thus facilitating exchanges of cultures and the birth of new friendships within the great international family of the judicial officers.
The morning of 10 September begin with the viewing of the report that René Duperray, general secretary of the UIHJ, and Francoise Andrieux shot in all European Union countries on the service of the document initiating proceedings, which had already been seen during the international symposium of Sibiu (Romania) in May 2009 (see the article on our site).
This viewing was followed by the 3rd workshop, “the guarantee”. It was chaired by Honoré Aggrey, judicial officer in Abidjan (Ivory Coast), permanent secretary of the UIHJ for central and Western Africa. It consisted in three parts. The first part was entitled “Principle and classification of the standards”.
Marie-Hélène Duplaa, judicial officer in Marseilles (France), member of the Managing Board of the National School of Procedure of Paris, presented the role of the judicial officer in the establishment and the application of legal standards. Our colleague wondered initially about the criteria of the Rule of Law. In this context, the executive power should not interfere in the judicial power. The judge should not interfere in the enforcement of court orders. “There must be independence between the judge and the judicial officer” declared our colleague. Like the judge, the judicial officer must be completely independent towards the executive and administrative power as with the judicial power, from which he should not undergo any pressure. For enforcement to be effective, the judicial officer in charge of enforcing a court decision must be able to work serenely and with impartiality. Then Marie-Hélène Duplaa indicated how, according to her, judicial officers can fit into standards. Admittedly, she noticed, from his position in the judicial system, the judicial officer does not have as a function to work out legal standards, but to respect and to implement them. For as much, by his experience, his activities and his high level training, he can be a force of proposal. Because of his hierarchical professional organization, the professional chambers or orders are in connection with the public authorities. This force of proposal also results in the participation of the representatives as stakeholders in working groups for the development of new provisions in the fields concerning the profession. And to quote as example the French 1991 provision on the reform of civil enforcement procedures, which was inspired by the profession. The profession can be prospective also upstream, and proved it. The idea of a European Enforcement Order was presented in 1992 at the time of the national congress of judicial officers of France. Our colleague also evoked the many actions of the UIHJ on the matter: the participation of the UIHJ in the CEPEJ working group on enforcement (CEPEJ-GT-EXE), the creation of UIHJ-EuroMed, the participation in the European Judicial Network in civil and commercial matter, etc. In other words, “the liberal and independent judicial officer contributes to the reinforcement of the Rule of Law while ensuring the application and the respect of standards”. And to conclude that the reinforcement of the profession can only take place through the harmonization of laws and procedures, the said harmonization being achieved through international conventions.
Dionisios Kriaris, Vice-President of the National chamber of the judicial officers of Greece, recalled that the function of judicial officer is as old as the institution of justice. The judicial officer was always, and will always be, at equal distance between the two parties of litigation. When he performs his duties, he does not carry out the orders of the claimant. He is not the employee of his client and is not consequently constrained to follow his instructions. He does not carry out his orders but acts exclusively and according to the rules of the law and only according to those. In parallel, by his action he must continuously show that he is a bulwark of defense of the citizen. Until the legal decision is given, the role of the judicial officer is to ensure by his actions the rights of the defendant to information, so that his sacred right to a fair trial is ensured. History teaches us, and this is an undeniable fact, that the majority of citizens actually seek the functional intervention of the judicial officer, since they know that their rights will not be flouted. This is why, said our fellow-member, it is important to resist newly appeared ideas such as the “privatization of the collecting of debts”. The security offered by a justice where legality and morality can be identified is ensured by the judge and the other public officer, the judicial officer, concluded Dionisios Kriaris.
Guillaume Payan (France), UIHJ consultant, university lecturer of the University of Maine, indicated how the judicial officer took part in the development process of European legislative acts. In a very complete talk, Mr. Payan initially evoked the methods of exercise of the participation of the judicial officers in this process. Accordingly, he underlined the specificities of the phase of adoption of European legislative acts, with the preliminary works and the legislative procedure itself. Then he described the phase of application of the European legislative acts, with the implementation of the European legislative acts and the re-examination of these acts. In a second time, the speaker evoked the factors of effectiveness of the participation of the judicial officers in the process. In this respect, he raised the institutionalization of such participation. The European Judicial Network in civil and commercial matter opened to the legal professions by a decision of the European Parliament and the Council of 18 June 2009. A European Forum of discussion on justice was also created in 2008. Lastly, Guillaume Payan explained how the continuation of the statutory reforms can make it possible to look further into the collaboration of the judicial officers with the European institutions. These reforms can be considered under the problems of the representativeness of the judicial officers near the European institutions and also under that of the diversity of the statutes of the judicial officers within the European Union. A study conducted at European level by the profession on ethics, training and discipline would be, according to him, “likely to increase the trust which the Member States put in their enforcement professionals and in the enforcement professionals of other Member States of the European Union” and “could open new prospects as for the action of the European Union in the field of enforcement itself”.
Then Ivana Borzova, head of the Department of justice in Civil Affairs of the Czech Republic, member of the European Commission for the Efficiency of justice (CEPEJ), presented the role of this institution of the Council of Europe. She indicated that one of the roles of the CEPEJ is to facilitate the implementation of legal international instruments of the Council of Europe relating to the efficiency of justice. For this reason, the CEPEJ is very concerned by the enforcement of legal decisions, which is “an essential element of the good performance of the Rule of Law in the countries”. Mrs. Borzova pointed out that in 2003, the Committee of the Ministers for the Member States of the Council of Europe adopted two recommendations as regards enforcement, one, Rec(2003)16, on administrative matter, the other, Rec(2003)17, in civil and commercial matter. The speaker indicated the essential points of recommendation 17 as regards enforcement and enforcement agents. Concerning the latter, they should enjoy the best consideration, be qualified in the achievement of their functions and act constantly in the respect of professional standards and high and recognized ethics. They should be objective in their relationships to the parties and be subjected to a professional control and a follow-up which can include a jurisdictional control. The need for an initial and permanent training is also envisaged. According to a CEPEJ study, there would be approximately 62 000 enforcement agents within the 47 Member States of the Council of Europe. Every two years, the CEPEJ publishes a report entitled “European Legal systems”. In its last 2008 edition, the report concludes that it is important that enforcement profits from an adapted training and a sufficient qualification to make it possible for the interested parties to make an effective and reasoned application of enforcement measures, in respect of the basic rights and individual freedoms. The representative of the CEPEJ also indicated that a working group on enforcement (CEPEJ-GT-EXE) was made up to propose guiding lines for a better implementation of recommendation 17 in the Member States. This working group is made of representatives of six States (Russian Federation, Germany, Greece, Croatia, Monaco and the United Kingdom), and by the UIHJ, represented by Leo Netten, 1st Vice-President, and Mathieu Chardon, 1st secretary. The final report of the working group should be presented for adoption during the 14th plenary meeting of the CEPEJ in December 2009. Mrs. Borzova declared herself convinced that the excellent co-operation between the UIHJ and the CEPEJ will continue and thanked the organizers for inviting her and for its hospitality.
Frédérique Ferrand, professor at the University Jean Moulin Lyon 3 (France), member of the Scientific Council of the UIHJ, treated the possible confrontation of articles 6 § 1 and 8 of the European Convention on Human rights (ECHR) taking into consideration the right to the enforcement of legal decisions. Mrs. Ferrand indicates that article 6 § 1 of the ECHR contains three great types of guarantees:
- Upstream of the fair trial, the effective right to a court;
- The right itself to a fair trial;
- And downstream from the fair trial, the substantive law to an effective enforcement of final judgments according to European case law.
But this right knows some restrictions, either in the general interest (social order, prevention of the risk of disorder, etc), or in the legitimately protected interest of the debtor (right to a place to live, right dignity or right to health). Thus, “the opposition of the basic rights of the creditor and the debtor can result in reducing the right to the effective execution”. Article 8 of the ECHR guarantees to any person the “right to the respect for his private and family life, his home and his correspondence.” Then Professor Ferrand put forward the jurisprudential contours of these four basic rights to wonder whether the guarantees enacted by Article 8 can obstruct, in certain cases, the effective enforcement of a legal decision. Quoting the Pini and other v. Romania case of 22 June 2004, she recalled that the Court had retained the violation of Article 6 § 1 but not of article 8. A “clash” can for as much occur between the basic rights of the debtor and the creditor. In some European countries, the taking into account of the situation of the debtor goes very far since the effect of an eviction or a seizure of property on his health can justify the refusal of the enforcement of an enforceable and final judgment, as it is the case in Germany where sometimes even the physical or psychic health condition of the debtor makes the seizure of his housing unconstitutional. To conclude, Professor Ferrand wondered about whether the ECHR would approve this German jurisprudence more concerned of the life and the health of the debtor than of the rights of the creditor consecrated in a final decision.
The second part of the workshop treated the place of the judicial officer within the framework of legal security.
Natalie Fricero, Professor at the University of Nice-Sophia-Antipolis, director the Institute of judicial studies, member of the Scientific Council of the UIHJ, sought to determine the concept of principle of security in the Rule of Law. The French Administrative Supreme Court gives a definition: “the principle of legal security implies that citizens are, without insurmountable efforts from their part, able to determine what is allowed and what is forbidden by the applicable law. To achieve this, the enacted standards must be clear and understandable, and not be subjected, in time, to too frequent, nor especially unforeseeable changes”. The Court of Justice of the European Communities also established the principle of legal security as a general principle of Community legislation, in the Bosch case of 6 April 1962 (CJEC, De gens Uitdenborgegerd v. Bosch and A. 13/61, rec. P. 89). In parallel, the European Court of Human Rights referred to the legal security for the first time in the Markx v. Belgium case of 13 June 1979 (n°6833/74). Professor Fricero also put forward the famous Pini and others v. Romania case of 22 September 2004. She then wondered about the reasons which make of the judicial officer a guarantor of legal security. Initially the judicial officer is a key element of the legal system. The European Court thus judged on several occasions that the processes of service of documents initiating proceedings are directly integrated in the fair trial. The speaker estimated that the fair trial would remain dead letter if the given judgments were not carried out. The judicial officer is also presented as a guarantor of the keeping of evidence, the safety of commercial exchanges, of the globalization of safety, and of a good functioning of the European legal area. In the final part of her intervention, Natalie Fricero indicated how the judicial officer could be guaranteeing legal security. First of all, he is, by answering the need for security of citizens. The membership of a regulated profession is a vector of economic efficiency and legal security. The judicial officers are very involved in e-justice programs and thus anticipate tomorrow's justice. For as much, they are devoted to maintain a true proximity with the citizens: “The approach of proximity of the judicial officers is a reality, visible through the meshing of the territory. The judicial officer is law professional close to the citizens, in particular in rural environment, able to give advice and to allow a real access to justice” Professor Fricero recalls. Lastly, this security should be reinforced by equipping the judicial officer with larger prerogatives, in particular in the search for information making it possible to locate the condemned debtor. Mrs. Fricero ended her intervention by pointing out the role of the states which has the duty “to fulfill their positive obligations with regard to judicial officers, so that they can, indeed, exert this crucial role that all citizens are expecting...”
Alain N'Gongang Sime, President of the National chamber of the judicial officers of Cameroon, gave a complete presentation on the judicial officer, essential element of the Rule of law, within the framework of legal security. The judicial officer is a securing actor of transactions. By his quality as a proximity lawyer, “the judicial officer demystifies the law and helps economic operators to feel a sense of security and trust”. His quality of multi-field professional of the law is also a pledge of security, just as that of public and ministerial officer. But for President N'Gongang Sime, the judicial officer also takes part in the good functioning of justice. He is the corollary of the separation of powers and recommends that justice is “free from the executive power, free from political and street pressures, and from the public opinion”. He guarantees the sacrosanct principle of the contradictory which allows the parties to have their arguments discussed at court, of exerting their right for appeal and of profiting consequently from a fair trial. The speaker explained how the principle of legal security is registered as a basic right in the Rule of Law. His presentation was based on the invocation of a right to legal security in European and American law, and on the existence of the right to legal security in the majority of African systems. After having evoked in detail the various aspects of the right to enforcement and enforcement law through various examples, amongst which the monopolistic activities of the judicial officer and the government bond as regards enforcement, Alain N'Gongang Sime concluded that the essential contribution of this professional to the consolidation of the Rule of Law goes along with the training and the independence of the judicial officer.
On a similar topic, Jean-Michel Rouzaud, President of the National School of Procedure of Paris (ENP), initially insisted on the statute of the judicial officer at the service of the legal security of citizens. Indeed the judicial officer is liberal in many States, but he is also a public and ministerial officer with a delegation of public power and a public service mission. He holds a piece of the public power for the benefit of the general interest, which makes of him a liberal professional guarantor of legal security. Naturally, he is constrained with certain obligations and is thus compelled to a forced ministry. “Monopoly and forced ministry are consubstantial and one is justified only by the existence of the other” pointed out Jean-Michel Rouzaud. Another fundamental aspect is the independence of the judicial officer. “How could he, at his level, take part in the legal security if he was not independent?” he wondered. Thus he must be impermeable to possible pressures, whether from the debtor or from the creditor. Independence must also exist with regard to public authorities. Moreover the judicial officer is characterized by his impartiality, as was mentioned by the preceding speakers, but also by their responsibility which is “unlimited towards citizens”. Then, the President of the ENP of Paris showed how quality training makes it possible to ensure a larger respect of the rights of citizens. “Only a rigorous initial and full education and then a powerful and accessible on-going training will allow the judicial officer to be a legal and judicial actor guarantor of legal security, in charge of honest and equitable procedures”. Finally, concluded the speaker, it is the conjugation of this statute and of this training that will confer the judicial officer with this legitimate trust which will make of him an essential actor in the Rule of Law and a guarantor of legal security impossible to circumvent
The third part of the 3rd workshop related to the topic of the judicial officer in the middle of the economic activity.
Paula Meira Lourenço (Portugal), President of the Committee for the Efficiency of justice of the Ministry for Justice of Portugal, member of the Scientific Council of the UIHJ, opened the floor by presenting the changes in her country. She informed the congressmen of the reform of enforcement procedures which were led in Portugal between 2000 and 2008. Since 2008, accent was put on e-Justice and the “e-enforcement agent”. Portugal seems one of the most advanced European countries in this field like the speaker showed through the following topics:
- Data-processing working platform of the judicial officer;
- Electronic enforcement procedures;
- Electronic service between judicial actors and electronic service of the Tax Department and the Social Security;
- Direct and electronic access of the judicial officer to information relating to the identification of the defendant and his assets;
- Electronic attachments and publications;
- Simplification of access to electronic files of enforcement;
- Creation of a public list of enforcements.
Paula Meira Lourenço completed her intervention by presenting the Commission on the Efficiency of enforcement of which she is the president.
Mohamed Bousmaha, judicial officer (Algeria), wondered initially how the judicial officer can be a pledge of the stability of the economic world. He indicated, according to him, which were the expectations of the economic world, and who could play the part of economic agent. “The economic world is characterized by a multitude of speakers of various statutes working in areas where stakes and goals are different one from the other” he declared. Thus the world calls for “the need for an accompanying agent who transcends the more and more criticized concept of borders and to finally become everywhere the guarantor of these transactions”. Naturally, this agent is the judicial officer. He will have to guarantee this need for stability of the economic world through his monopolistic and additional activities. This agent is naturally keen on new technologies. His liberal statute offers guarantees such as the control of the tools of his intervention and constitutes a bulwark against corruption. For our fellow-member, the judicial officer of the 21st Century will be a high level lawyer and involved with “the concretization of an area of justice without borders”. Mohamed Bousmaha also evoked in details the role of the Algerian judicial officer in the economy of his country. He recalled that this occupation rises from a strong political will of reforms and an opening of the profession on public authorities. The reforms undertaken led the Algerian judicial officers to profit from new tools of intervention which make their work particularly effective: search for information on the debtors' assets, conduct and control of the whole of enforcement procedures on tangible, intangible and immovable goods, mediation, sequestration, etc. He ended his presentation by mentioning that the Arab League had chosen the statute of the Algerian judicial officer as standard and announced the creation of the African northern Association of judicial officers.
Emmanuel Madiot, judicial officer in Saint-Junien (France), underlined the difficulty which consists in trying to join together two delicate environments to bring closer: justice and economy. In other words, does the requirement of justice have its place in economic relations? But justice “ensures the compliance with the rules, and contributes to the necessary trust to make possible and especially more efficient the economic activity”. At first sight, the judicial officer is closer to the judicial world, to justice, than to the economic world. Nevertheless, the liberal judicial officer participates in the economy of his country. He creates wealth. He invests. He employs. He collects and pays taxes. In parallel, he is subjected by his statute to “strike a balance between moral and legal values, and useful calculations”. He is also a regulator of the economy. By his action, by his missions and his professional activities, he intervenes in the relations between natural or legal persons. For example, when he carries out a legal decision, he reduces the part of the existing risk in the economic relations and contributes to the circulation of financial flows by recovering the sums due to private individuals or legal entities. Emmanuel Madiot then projected himself in the future to wonder about the place of the judicial officer in a moving world, which keeps accelerating its changes. For him, one of the fundamental parameters is the contraction of the world with increasingly powerful means of communication, making distances less relevant. The profession should show the Business world its capacity to make deals beyond borders. The judicial officer should seek the harmonization of his functions, and in particular while trying to extract the best practices and the best procedures from each country, to try to reproduce and to adapt them in other countries, obviously by taking into account the legal specificities of each one. Another parameter is the domineering role of technology in our environment. “There is a new world where everything has to be built and invented” said Emmanuel Madiot. Then he evoked the alternative modes of conflicts resolution and in particular mediation by stressing that, by his competences, his independence and his impartiality, the judicial officer is fully qualified to fulfill this mission. “Any upheaval is a source of opportunities. Let's seize them!”
Louis-Raymond Maranda, President of the Chamber of the judicial officers of Quebec, recalled as prolegomena to his intervention that Canada is the second largest country in the world after the Russian Federation. Quebec, with its 7.6 million square km and its 1.6 million inhabitants is the largest of the ten Canadian provinces. Canada knows two types of law: Common Law and civil law. Louis-Raymond Maranda described the difficulties but also the significant changes of his profession during the last years. There are today 450 judicial officers to cover the territory instead of 750 fourteen years ago. In spite of this spectacular decrease, the judicial officers from Quebec are always in the middle of the economy. Since 2002 they fight to obtain the authorization to carry out the amicable collecting of debts. In addition, they obtained the function to make sure that all movable property of a value of more than one thousand dollars is free of any bond and this, by checking in the Register of personal rights or of movable goods, a Government organization which records the bonds in order to ensure a right of following for the creditor. The sale under control of justice is also allowed to the judicial officers, although not as a monopoly.
Marta Pertegas presented the Hague Conference on Private International Law of which she is secretary of the permanent board. More than 130 countries are associated with this worldwide organization created in 1883 or belong to the network of the 38 conventions and the protocol adopted between 1951 and 2007. “The Hague Conference does not deal only with the negotiation of these conventions but also with their implementation” she specified. Mrs. Pertegas then presented the convention on choice on court agreement which aims at facilitating the recognition and the execution of legal decisions in a country other than that where they were returned, since a clause of choice on court agreement exists between the parties. The speaker also presented the convention of 23 November 2007 which should “ensure a new era as regards international covering of maintenance obligations towards children”. Among its characteristic features, this convention includes speedy and simplified procedures for the recognition and the execution and an obligation of a fast and effective execution. This convention could naturally interest the judicial officers. Then the secretary of the board of the Hague Conference focused on the Hague convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This convention is presently in force in 59 countries. With the help of a visual presentation, she indicated everything that the convention avoided: “length and cumbersome diplomatic channel which makes that the documents to be transmitted abroad must take the long road before finally arriving in its receiving State”. Approximately 37 000 requests for service were made on the basis of this convention in 2007. 66% of the requests were carried out within a deadline of two months, “which, in a world context, is a very reasonable time”. She concluded by indicating that the convention must be considered as “a bridge built between the different contracting States” and then invited the States which did not already done so, to consider joining the convention which preserves all its topicality and all its utility.
Rodrigo Zuniga Carrasco, adviser of the Minister for the justice of Chile, gave an outline of the situation in Chile as regards civil justice and the significant moves in his country being in particular the enforcement of legal decisions. Many reforms were already led since about fifteen years in criminal, family or labour matters. The field of civil justice, which goes back to 1893, is currently the subject of major reforms. Currently, for Chile, it takes on average of more than five years to obtain a final legal decision. The enforcement of these decisions is ensured by the judges themselves and takes on average two years. In 2005, approximately a million cases were hanging in front of the jurisdictions. In 2008, there were approximately 1.7 million. 80% of these cases relate to enforcement. Hence the idea to set up a system which supports alternative modes of conflicts resolution, such as negotiation, mediation, and conciliation. In parallel, the problem of the enforcement of legal decisions was taken into account. Since 2005 representatives of the ministry for justice and experts went to several countries, of which Portugal, Spain, England and France, to get accustomed with the systems in force. “Our visit in France was the most important one for us” stated Mr. Zuniga Carrasco. Then he announced that a new liberal professional should be created, that of enforcement officer, inspired by the French model, whose mission will be to enforce legal decisions instead of the judge. He cordially thanked the UIHJ for its assistance during the two last years in this domain, and more precisely Jacques Isnard, Dominique Aribaut and Leo Netten.
Jacqueline Lohoues-Oble (Ivory Coast), professor at the Law Faculty of Abidjan, member of the Scientific Council of the UIHJ, presented the treaty of the Organization for the harmonization of Business Law in Africa (Ohada) and the uniform law of enforcement procedures. Professor Lohoues-Oble summarized the Ohada treaty in these terms: “Act together or disappear”. 14 African States sharing several common points (French language, a similar legal system, and the CFA franc) decided to elaborate the treaty which was signed on 17 October 1993 in Mauritius. Today, the Ohada comprises 16 Member States: Benin, Burkina Faso, Cameroon, Central Africa, the Comoros, Congo, Ivory Coast, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad and Togo. Its fundamental objective is to establish an imposing and ambitious program, in the great sectors of the life of businesses, in order to support a harmonious development of all the Member States by a progressive unification of legislations. Among the sectors to harmonize is the question which is the subject of the congress: the judicial officer in the law, said the speaker. And she added: “As an African lawyer, I have to draw the attention of my European, American, and Asian colleagues here present, to a legal system that they perhaps are unaware of or they know little about, and which however can be an appreciable source of information for them, because they could to refer to it insofar as this matter concerns the business law and deals with the law of investments. This law should thus interest the foreign investors who wish to trade with these African States. For once, Africa offers its knowledge to the world”. And this is exactly what Jacqueline Lohoues-Oble did during a brilliant and complete talk on the Ohada treaty and on the uniform act on simplified enforcement procedures, under the double aspect of the existence of a harmonized standard as regards enforcement procedures and also its harmonized application. The speaker closed her intervention by quoting the late Keba M'Baye, one of the fathers of the Ohada treaty: “In Africa there are not rich countries and poor countries, there are only countries which will only be able to develop if they are united, and unity obligatorily implies legal integration”.
Four wishes and a New Board for the UIHJ
On Thursday two very solemn and emotional events took place. The full Scientific Council of the UIHJ was gathered to establish its two new eminent members, Professors Natalie Fricero and Jacqueline Lohoues-Oble. Then, Roger Dujardin gave Jacques Isnard a book written in the greatest secrecy by a score of authors, in the shape of a superb “Liber Amicorum” of 400 pages published by the French Editions juridiques et techniques. Obviously very touched, Jacques Isnard was the subject of a very long and particularly warm “standing ovation” which showed the recognition of all towards the extraordinary work accomplished during his past fifteen years at the head of the UIHJ, leading this organization of about fifteen members to some seventy to constitute the great worldwide family of the judicial officers.
Friday was devoted to the ratification of the new members of the UIHJ: Belarus, Mauritania, The Former Yugoslav Republic of Macedonia, and the Russian Federation.
Then several colleagues were solemnly thanked for their deep investment for the profession: Eliane Oberdeno, President of the National Chamber of the Judicial Officers of Gabon, Nicola Hesslen, Mohamed Chérif, President of the National Chamber of the judicial officers of Algeria, and Jos Uitdehaag.
The organizing city of 21st international congress of the judicial officers in 2012 was also voted: Cape Town in South Africa.
Finally, the new board of the UIHJ was elected for 2009-2012, as follows:
- President : Leo Netten (the Netherlands)
- 1st vice-president : Bernard Menut (France)
- Vice-presidents : Roger Dujardin (Belgium) and Honoré Aggrey (Ivory Coast)
- Secretary : Adrian Stoica (Romania)
- Treasurer : Dominique Aribaut-Abadie (France)
- Vice-Treasurer : Mohamed Chérif (Algeria)
- Vice-Secretary: Dionisios Kriaris (Greece)
- Members : Sue Collins (United States), Johan Fourie (South Africa), Louis-Raymond Maranda (Quebec)
Then was the time to end the congress with the summary report of Francoise Andrieux, general reporter. “Within the law, economy, goods, contracts, standards of execution, Rule of law or legal security, the judicial officer is the perennial element, the anchor, the connection, the hyphen impossible to circumvent” declared Francoise Andrieux. The general reporter centered her talk around the role of the judicial officer in three fields: alternative modes of conflicts resolution, the guarantor of the relations between citizens and the great profession of enforcement. At the end of a brilliant presentation, lengthily cheered by the audience, the general reporter presented the traditional wishes of the congress.
The judicial officer should play a part within alternative modes of conflicts resolution before any lawsuit. He should be able to intervene as an element of control, an element of mediation and of proof in particular through statements of facts so much his impartiality is inherent to his function. He should be able to seal the agreement occurred between parties by a private authentic document which he should be entitled to establish.
The judicial officer establishes daily the link between the debtor and the creditor. He should be able to negotiate installments and enforcement on the goods of the debtors proportionally to the amount of the debts and to the refunding capacities of the debtors by maintaining a balance between parties. The debtor should be able to declare near the judicial officer the goods which belong to him and which he wishes to see becoming “enforced” in order to agree with him on the best way of carrying out the legal decision.
The post-judicial mediation should be able to become the heart of the future enforcement.
Should be adopted common standards forging the enforcement law intended to facilitate the realization, the efficiency and the effectiveness of legal decisions based on the extraterritoriality which would make of the judicial officer the relay of the titles and their accompanying measures
The great profession of enforcement should be created, thus gathering the activities relating to the field of activity of the judicial officers, in particular through training within a structure common to all judicial officers.
The Friday evening gala was mostly exhilarating. Throughout the evening President Isnard was particularly honored by the many delegations. A slide show recalled on two giant screens the stages of his presidency through multiple portraits. Prestigious gifts were given to him and his wife Michèle, in particular from the Cameroonian and Senegalese delegations. A musical surprise was also reserved to him. A piece created for him was played live by the “UIHJ Orkestra” consisting in colleagues of ten States. A CD of the work was also distributed during the evening, as well as a special issue of the Congress Gazette which was devoted to him and which consisted of a token of friendship from about fifty judicial officers and close personalities.
The departure of Jacques Isnard turned a page in the history of the UIHJ. His modesty calls for no further comments but everyone knows that the UIHJ owes everything to him. President Isnard begins a well deserved retirement. We wish him a long and happy life. We know that his heart will always be very close to the Union and that he will always be around!
Another adventure begins, with a new board, a new president and many new goals.
So, from the Marseilles harbor, let's set sails and long live the UIHJ!