Opening of the Casablanca round table. From L. to R: Najia Rahali, Director of Studies, Cooperation and Modernization at the Ministry of Justice of Morocco, Mustapha Ramid, Minister of Justice and Liberties of the Kingdom of Morocco, Jacques Bühler, Chairman of the SATURN Centre of the CEPEJ Clementina Barbaro, Head of the Cooperation Unit of the CEPEJ
Finding Effective Solutions
The third visit to the Kingdom of Morocco organized by the CEPEJ from 15 to 19 April 2013 under the joint program between the European Union and the Council of Europe "Strengthening democratic reform in the Southern Neighbourhood (South Programme)" included a roundtable held in Casablanca with all the partners involved in this fundamental activity.
On 17 and 18 April 2013, twenty participants gathered in the economic capital of Morocco to discuss the issue of service of documents in Morocco: the Ministry of Justice and Liberties, The National Order of Judicial Officers of Morocco (NOJO), judges, lawyers, clerks, local authorities of the city, as well as representatives of the Post.
The CEPEJ representative included Clementina Barbaro, Head of the Cooperation Unit of the CEPEJ (Council of Europe), Jacques Bühler (Switzerland), Chairman of the SATURN Centre of the CEPEJ (Study and Analysis of Judicial Time Use Research Network), Joao Arsenio de Oliveira (Portugal), member of the CEPEJ Working Group on Quality and Mathieu Chardon, judicial officer (France), first secretary of the UIHJ. The NOJO was represented by its president, Redouane Behnamou, its first vice president, Abdelaziz Fouganni, and its secretary general, Karim Achehboun.
The aim of the roundtable was to prepare the ground for a pilot project with the Court of First Instance of Casablanca on the service of documents before that court in civil matters.
Before the meeting, an assessment report on the efficiency of justice in the kingdom of Morocco with recommendations was prepared by the CEPEJ on the basis of two previous visits (see article on our website) http://www.uihj.com/en/the-service-of-document-at-the-heart-of-judicial-reform-in-morocco_2159013_1016024.html, in June and October 2012. This report included a section on the service of documents and recommendations prepared by Mathieu Chardon.
Minister of justice and Liberties Mustapha Ramid wanted to mark by his presence his personal interest and that of the ministry of justice and the Government in the work of the South Program whose implementation is entrusted to the CEPEJ. Mr Ramid thanked the Council of Europe and the CEPEJ. He declared he wanted to show by his presence his personal interest in this very important round table in the context of the reform underway. The Justice Minister said he had read with interest the Chardon report on service of documents and had appreciated the clarity of the identified problems. "We are concerned by the issues raised by the service of documents" he said. "We need to find effective solutions to overcome the challenges that the defendant faces. Everyone has the right to a fair trial. The law shall guarantee equality of persons before all jurisdictions, to allow justice to conduct its activities to deliver justice in a timely manner." Mr Ramid continued considering the issue of service of documents as "a priority" in the national dialogue that is committed to the reform of the Judiciary currently underway. "The mission of judicial officers is of great importance as regards service of documents" ruled the Minister of Justice. He said that the objectives were to define a "clear and effective" service of documents. He assured that the conclusions of the work would be considered by the Ministry of Justice. He concluded by stating that implementation of the recommendations that would be presented would be provided to promote and upgrade the Moroccan Judiciary with the assistance of the Council of Europe and the European Union.
Following this particularly constructive and positive speech, Clementina Barbaro, on behalf of the Council of Europe, thanked the Minister of Justice and Liberties for taking the time to open the panel. Ms Barbaro expressed her gratitude to all those who helped organizing this round table, especially Najia Rahali, director of studies, cooperation and modernization at the Ministry of Justice of Morocco, and her team. Clementina Barbaro recalled that the Council of Europe and the CEPEJ were asked to implement the South Program and make its expertise and skills available. "We appreciate the strong commitment of the Ministry of Justice, the Superior Institute of Judges and the pilot courts of Casablanca, Agadir and Sidi Kacem". She went on to say that Morocco had hoped to become an observer state of the CEPEJ. "The CEPEJ is strongly committed to help Morocco. The experts' recommendations are expected to improve the judicial system" she promised.
Effective Service Processes to Ensure Timely Service of the Date of Hearing to the Parties
The roundtable was organized around three sessions: identification of issues, group work and a definition of a pilot project with the Casablanca court. Jacques Bühler previously recalled the CEPEJ programs underway in the framework of the reform of the Judiciary in Morocco, especially in the three pilot courts.
Then Mathieu Chardon presented his report on the service of documents in Morocco, integrated to that of the CEPEJ. In his speech, the first secretary of the UIHJ shared his thoughts on the importance of the service of documents in procedural law, especially when it comes to the document initiating proceedings. He based his presentation on two judgments of the European Court of Human Rights. In the Gospodinov against Bulgaria (Application No. 62722/00) case of 10 May 2007 on the basis of Article 6.1 of the European Convention on Human Rights, the Court imposed on member states of the Council of Europe to establish effective notification procedures, to ensure notification of the hearing date to the parties in a timely manner. In the Miholapa against Latvia (Application No. 61655/00) case of 31 May 2007, the Court held that the principle of equality of arms requires a fair balance between the parties, in order to present their cases in a situation that is not too disadvantageous compared to the opponent and that these principles concerning all the procedural law of the Contracting States, they also apply to the special field of service of judicial documents to the parties.
Mathieu Chardon then relied on two reports ordered in 2004 by the European Commission within the framework of the reform of Regulation (EC) No 1348/2000 of 29 May 2000 on cross-border service of documents in the Union European. In each of these reports, the Mainstrat and LexFori companies had identified the dangers of service by post, even by registered letter with acknowledgment of receipt, due to uncertainty about the date of the service or the identity of the recipient of the document. Each report concluded for an abandonment of the postal service in favour of the service by a professional lawyer, i.e. by a judicial officer. Finally, on the occasion of the 10th meeting of the European Judicial Network in civil and commercial matters held in Brussels on 9 and 10 February 2012, as part of a panel discussion on the revision of Regulation (EC) No 1393/2007 of 13 November 2007 on the service of documents in the European Union, several countries have recognized that the postal service did not work for practical and legal reasons. Mathieu Chardon indicated that these positions are shared by the UIHJ, which includes 73 member countries, including Morocco, and which also presented at an international conference in 2009 in Sibiu (Romania) a draft directive to a harmonized document initiating proceedings (See the report on our website). http://www.uihj.com/en/a-european-document-initiating-proceedings-yes-we-can-_1018318.html
The Chardon report consists of three parts: a description of the existing system, an assessment of existing problems with recommendations and a summary of these recommendations. In the Kingdom of Morocco four modes to summon the defendant before the court currently exist:
- Notice sent by the Registry Officer
- Document served by a judicial officer
- Document mailed by the Post (registered letter with acknowledgment of receipt)
- Administrative service.
In the opinion of the participants and all the people who were consulted during the previous mission, among these four modes, only the documents served by a judicial officer seems to be satisfactory, provided to strengthen the means available to the judicial officers to carry out their mission. The first secretary of the UIHJ introduced the film made by the UIHJ in 2009 in most countries of the European Union on service of documents, highlighting the major differences between countries in this respect.
Finally, he noted how, in selected countries of the European Union, a document may be served on a person whose address is unknown. He based his presentation on the information contained in the UIHJ Grand questionnaire, a questionnaire of 350 questions about the profession of judicial officer in fifty countries of the UIHJ.
Abdelaziz Fouganni, first vice president of the NOJO said that all documents could be served by his profession. He went over all the proposals of the officers of Moroccan justice, including:
- Introduction of a compulsory identification by the recipient;
- Introduction of an official document of handing of the document instead of the current certificate;
- Strengthening and details on how to serve documents;
- Access to information for effective service;
- Monopoly of service for judicial officers;
- Application of international standards of service.
Consensus on the Service of Documents by a Judicial Officer
In the second session, very constructive discussions resulted in agreeing on a general consensus on the service of documents by judicial officers.
Hassan Ouabhi, President of the National Bar Association of Morocco, called for an overhaul and simplification of the texts, saying that "the judicial officers are the most qualified for this mission of service."
Abdellah Bougida, president of the Court of First Instance in Casablanca, said that "it is necessary to choose an institution that must take responsibility." He declared sharing the conclusions of the Chardon report.
For Abdelmati El Kaddouri, President of the Administrative Court of Agadir, things should be seeing pragmatically: "The four modes of service are good but now the main mode of service being by a judicial officer we should focus on that and develop it. We have everything to gain".
Farid Ousy, Judge at Civil Affairs of Ministry of Justice acknowledged that the judge is the guarantor of the rights and freedoms of citizens: "We should enrich the methods of service and supervise those who perform service."
Redouane Benhamou, chair of NOJO lamented on the long delay in cases pending before the courts. This delay is due, according to him, to the use of traditional methods. "The service of documents is a legal proceeding. It should move away from the administrative function. Some African countries are much more advanced than us. Why have we stagnated? We kept the old methods. I insist on the fact that the service should be carried out by the judicial officers to ensure the rights of the defence. We believe that the authorities in the national debate will find solutions. We have great confidence in the Minister of Justice. We should focus on the mechanisms in place and the functioning at an international level” he pleaded.
Mustafa Baadi, representing the Post, told the Post placed at the disposal of the authorities all of its products and that could develop new ones to meet the expectations of the Ministry of Justice regarding service of documents. At this stage, Jacques Bühler recalled having seen a consensus in favour of the service of documents by judicial officers. This does not mean that proposals of the Post could not come in complement of the service by judicial officers, quite the contrary. Following him, Abdelaziz Fouganni said he was convinced that technical solutions would be found, in collaboration with the Ministry of Justice, the pilot courts and the CEPEJ.
Finally, in the opinion of Najia Rahali and Abdelmati El Kaddouri, it is not necessary to wait for a new law to act. Mr El Kaddouri suggested working with the existing texts. It was precisely the purpose of the third session of the roundtable: defining the contours of a pilot project with the Casablanca court.
A true master of ceremonies, Jacques Bühler suggested working on four themes:
- Access to information relating to the location of the parties;
- Service process without the curator;
- New hybrid product of the Post;
- Implementation of the project.
Four working groups were formed. They could provide guidance that will quickly propose concrete solutions. These will be the subject of a report to be submitted to the CEPEJ end of May 2013.