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HomeSéparateurFocusSéparateurInstitutionsSéparateurCouncil of EuropeSéparateurRecommendation relating to the enforcement of decisions of justice
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Recommendation relating to the enforcement of decisions of justice

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On the 9th of September 2003, the Committee of Ministers of Justice of the Member States of the Council of Europe adopted a recommendation that sets down the bases for a standardisation in terms of enforcing legal decisions and the agents charged with their enforcement.

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Fair, efficient and accessible legal systems underpin and strengthen the constitutional state, on which the European democracies are based. The enforcement of a decision is an integral part of the fundamental right of every human being to a fair trial within a reasonable time period in conformity with the article of the European Convention on Human Rights (ECHR). The pre-eminence of law is a principle that can be respected only if the citizens truly have the possibility, in practice, to defend their rights and to contest illegal acts. It is because it is founded on these great principles that the recommendation edicts the directing principles concerning the enforcement of decisions and the agents responsible for enforcing them.

A fair and efficient enforcement procedure

The recommendation applies in civil and commercial law and also concerns the rights of the consumer as well as those of the working population and the family. It concerns legal decisions but also other enforceable decisions, both legal and otherwise. The recommendation evokes the pre-eminence of internal laws but states that the law should be sufficiently detailed to bring legal security and transparency to the procedure. The parties concerned shall cooperate in the enforcement procedure in an appropriate manner. It is encouraging to see that the recommendation lays down the bases for an obligation for the defendant to provide up-to-date information regarding his revenues, his assets and "any other pertinent issue". Any case of misuse, coming from any party during the enforcement procedure, as well as untimely delays in the enforcement procedure shall be avoided, notably by clearly defining the rights and obligations of all concerned.

Competent and responsible law enforcement agents

The status of those charged with enforcing the decisions, their role, their responsibilities and their powers should be set out in the law to bring as much security and transparency as possible in the enforcement procedure. The competence and morality of those charged with enforcing the decisions must be exemplary: after a prior advanced qualification period they should take a series of exams to evaluate their theoretical and practical knowledge. A continued training is also required. They must also respect high and recognised professional and ethical rules, as well as being subject to professional controls and a surveillance that may include a jurisdictional control. Finally, when a State employs such enforcement agents, it must offer them appropriate working conditions, the necessary material resources, sufficient personnel and pay them adequately, which is unfortunately far from being the case in a number of countries in which the enforcement agents do not benefit from an independent status.

The UIHJ has declared itself to be generally satisfied by its recommendations in as much as they head in the direction of the objectives that it has set itself. However, it is regrettable that, in a domain as important as the notification of documents, the conveyance of documents by the enforcement agents themselves, electronic mailing and the postal systems are apparently placed on equal footing. Indeed, the UIHJ continues to declare that at present only the conveyance of the documents by the enforcement agents themselves constitutes an efficient and appropriate method for ensuring the notification of documents.
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