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The CEPEJ to Develop a Programme to Strengthen the Efficiency of Enforcement

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At the 16th meeting of its working group on the quality of justice in which the UIHJ participated on 25 and 26 September 2014 at the Council of Europe, the CEPEJ has decided, with the support of the UIHJ to strengthen the efficiency of enforcement based on best practices in relation with its Guidelines on Enforcement.

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The UIHJ was invited to attend the meeting in its capacity as an expert and an observer member of the CEPEJ Working Group on Enforcement (CEPEJ-GT-EXE). It was represented by its first secretary, Mathieu Chardon.

The Working Group on the Quality of Justice of the European Commission for the Efficiency of Justice (CEPEJ-GT-QUAL) is chaired by François Paychère (Switzerland) and consists of experts from member countries of the CEPEJ: Joao Arsenio de Oliveira (Portugal), Fabio Bartolomeo (Italy), Anke Eilers (Germany), Nikolina Miskovic (Croatia), and Ioannis Symeonidis (Greece).

The meeting was attended by John Stacey, President of the CEPEJ, Stéphane Leyenberger, Acting Head of the Justice Division and Secretary of the CEPEJ, and Clementina Barbaro, administrator at the CEPEJ. Also in attendance were Gilles Accomando (France), as an expert, four presidents of Tunisian courts, as guests, observers from the European Union of Rechtspfleger and Court Clerks, represented by its president, Jean-Jacques Kuster, the Mitre Corporation, the Fundamental Rights Agency of the European Union, represented by Jana Gajdosova, and the European Institute of Expertise and Experts (EEEI), represented by Alain Nuée.

The talking points of the agenda included:
- The Guidelines on the organisation and accessibility of court premises;
- The role of experts in the quality of judicial systems;
- Cooperation with the EU Agency for Fundamental Rights on the "Handbook on Access to Justice in Europe";
- Presentation of the Mitre Corporation, an American non-profit organisation founded in 1958 whose purpose is to work for the public interest;
 - Promoting the Guidelines for a better implementation of the existing Council of Europe's Recommendations on enforcement.

As part of this agenda item, Mathieu Chardon presented at the request of the CEPEJ, a document prepared by the UIHJ on issues related to enforcement in Europe. The problems are many and varied. They were identified on the basis of the CEPEJ Guidelines on enforcement. These relate in particular to:
1.    The difficulties faced by creditors;
2.    The location of the debtor and the identification of his assets;
3.    Assets located abroad and transnational enforcement procedures;
4.    The opportunity to seize and realise the seized property;
5.    The preparation of enforcement procedures;
6.    The practical carrying out of enforcement measures;
7.    Obstacles to enforcement.

Six problems were identified by the UIHJ as recurring and constituting the most important obstacles to an effective enforcement. They show in domestic law and at transnational level.

In domestic law
 
1.    Access to information to identify and locate the debtor's assets
The identification and location of the debtor's assets is undoubtedly the biggest obstacle to effective enforcement: enforcement can only affect the debtor's assets. In some countries, judicial officers have direct access to all information to identify and locate the debtor's assets. In many others, this access is partial, long, expensive, ineffective or non-existent.

2.    Access to information for locating the debtor
The location of the debtor is a major problem that, if not resolved, prevents the enforcement procedure. In some countries, the location of the debtor is almost always possible. In others, the creditor or the enforcement agent faces great difficulties.

3.    Obtaining authorisations to carry out enforcement measures
The differences between countries are important as regards authorisations to carry out enforcement. In some countries, enforcement is entrusted to a single enforcement professional who, when in possession of the enforcement order can directly carry out all enforcement measures. In contrast, in other countries, authorisations are needed for implementing enforcement measures. While the debtor has been ordered by a court, these authorisations may slow or even prevent the enforcement process.

At transnational level

1.    Disparity of enforcement procedures
At transnational level, the major obstacle is the huge disparity on enforcement procedures. This results for the litigant in a great opacity when it comes to consider enforcing a court judgment abroad. This opacity also concerns the professionals who advise litigants.

2.    Disparity of the status of enforcement agents
The status of enforcement agents in Europe has a great diversity: education and training, status (civil servant, liberal or mixed), activities, jurisdiction, responsibilities, organisation ... The CEPEJ Guidelines make it possible to envisage a harmonisation of many aspects relating to the profession of enforcement agent.

3.    Knowledge of transnational procedural law
We can only recognise the general lack of knowledge of legal professionals relating to transnational procedural law. A litigant who wishes to initiate proceedings abroad or who has to enforce a court may waive mainly because of this ignorance.

Mathieu Chardon continued his presentation by explaining that the CEPEJ Guidelines on enforcement are considered by the UIHJ as a model for Europe and the rest of the world. He said there is need to strengthen their promotion so that countries are using them as part of their judicial reforms. He declared that the UIHJ was willing to work with the CEPEJ on these issues to highlight best practices in countries.

After discussion, the members of the CEPEJ-GT-QUAL decided to work in this direction, that is to say, to illustrate the CEPEJ Guidelines and Recommendation Rec(2003)17 on enforcement through examples of best practices in countries.

The UIHJ welcomes this decision and is at the disposal of the CEPEJ to cooperate in this direction, including by collecting from its members the necessary information to identify these best practices.

In this regard, the UIHJ already has three tools:
1.    The Grand questionnaire of the UIHJ which includes answers from 52 countries to 350 questions about enforcement and the profession of enforcement agent;
2.    The report of the UIHJ on enforcement, which is in its finalization stage and will be presented on 10 December 2014 at the 1st Global Forum on Enforcement, organised jointly by the UIHJ and the CEPEJ and to be held at the Council of Europe;
3.    The UIHJ Stobra projects, whose principle is precisely to identify best practices for establishing them as examples, and include seven components:
-     Seizure on immovable;
-     Service of judicial and extrajudicial documents;
-     Transparency of assets;
-     Statements of facts;
-     Training;
-     Information and Communication Technology;
-     Debt Collection.
 
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