CM(2003)98 Addendum 4 13 August 2003
851 Meeting, 9 September 2003
10 Legal questions
10.1 European Committee on legal co-operation (CDCJ)
e. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on enforcement and its Explanatory Memorandum
Draft Recommendation Rec(2003)…
of the Committee of Ministers to member states
on enforcement and its Explanatory Memorandum
(adopted by the Committee of Ministers on …
at the …..meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Recognising that the rule of law on which European democracies are based is dependent on the support of fair, efficient and accessible judicial systems;
Considering that the enforcement of a court judgment is an integral part of the fundamental human right to a fair trial within a reasonable time, in accordance with Article 6 of the European Convention on Human Rights (hereinafter referred to as “the ECHR”);
Acknowledging also that the rule of law principle can only be a reality if citizens can, in practice, assert their legal rights and challenge unlawful acts;
Considering that member states have a duty to ensure that all persons who receive a final and binding court judgment have the right to its enforcement. The non-enforcement of such a judgment, or a delay in it taking effect, could render this right inoperative and illusory to the detriment of one party;
Convinced of the need to promote greater efficiency and fairness in the enforcement of judgments in civil cases and to strike a positive balance between the rights and interests of the parties to the enforcement process;
Aware of the risk that without an effective system of enforcement, other forms of “private justice” may flourish and have adverse consequences on the public's confidence in the legal system and its credibility;
Recalling Resolution No. 3 of the 24th Conference of European Ministers of Justice on a “General approach and means of achieving effective enforcement of judicial decisions”, held in Moscow on 4 and 5 October 2001, in which it was agreed that the “proper, effective and efficient enforcement of court decisions is of capital importance for States in order to create, reinforce and develop a strong and respected judicial system”;
Bearing in mind Resolution Res(2002)12 establishing the European Commission for the Efficiency of Justice (CEPEJ), adopted by the Committee of Ministers on 18 September 2002;
Having regard to the importance of information technology in improving the efficiency of the enforcement process and the relevant Council of Europe legal instruments in this field, including Recommendation Rec(2003)… on the interoperability of information systems in the justice sector and Recommendation Rec(2003)… on the archiving of electronic documents in the legal sector,
Recommends that governments of member states:
– facilitate the efficient and cost-effective enforcement of judicial decisions, as well as of other judicial or non-judicial enforceable titles, as appropriate;
– take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the “Guiding principles concerning enforcement” set out below.
Guiding principles concerning enforcement
For the purpose of this recommendation,
a. “Enforcement” means the putting into effect of judicial decisions, and also other judicial or non-judicial enforceable titles in compliance with the law which compels the defendant to do, to refrain from doing or to pay what has been adjudged;
b. “Enforcement agent” means a person authorised by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not;
c. “Claimant” means a party seeking enforcement;
d. “Defendant” means a party against whom enforcement is sought.
II. Scope of application
1. This recommendation applies to civil matters, including commercial, consumer, labour and family law. It does not apply to administrative matters. This recommendation may also apply to criminal matters which are not concerned with the deprivation of liberty.
2. Moreover, this recommendation applies to the enforcement of judicial decisions, as well as of other judicial or non-judicial enforceable titles.
III. Enforcement procedures
1. In order for enforcement procedures to be as effective and efficient as possible,
a. enforcement should be defined and underpinned by a clear legal framework, setting out the powers, rights and responsibilities of the parties and third parties;
b. enforcement should be carried out in compliance with the relevant law and judicial decisions. Any legislation should be sufficiently detailed to provide legal certainty and transparency to the process, as well as to provide for this process to be as foreseeable and efficient as possible;
1. Where states make use of enforcement agents to carry out the enforcement process, they should comply with the principles contained in this recommendation.
2. Enforcement agents' status, role, responsibilities and powers should be prescribed by law in order to bring as much certainty and transparency to the enforcement process as possible. States should be free to determine the professional status of enforcement agents.
3. In recruiting enforcement agents, consideration should be given to the moral standards of candidates and their legal knowledge and training in relevant law and procedure. To this end, they should be required to take examinations to assess their theoretical and practical knowledge.
4. Enforcement agents should be honourable and competent in the performance of their duties and should act, at all times, according to recognised high professional and ethical standards. They should be unbiased in their dealings with the parties and be subject to professional scrutiny and monitoring which may include judicial control.
5. The powers and responsibilities of enforcement agents should be clearly defined and delineated in relation to those of the judge.
6. Enforcement agents alleged to have abused their position should be subject to disciplinary, civil and/or criminal proceedings, providing appropriate sanctions where abuse has taken place.
7. State-employed enforcement agents should have proper working conditions, adequate physical resources and support staff. They should also be adequately remunerated.
8. Enforcement agents should undergo initial and ongoing training according to clearly defined and well-structured aims and objectives.
1. The Council of Europe has, for many years, been dealing with questions concerning the enforcement of court decisions in the framework of its work aiming at setting standards in the field of Human Rights and the Rule of Law and at promoting law reform in States.
2. The European Court of Human Rights decided, in the landmark case of Hornsby v Greece in 1997, that enforcement forms an integral part of the fundamental human right to a fair trial within a reasonable time in accordance with Article 6 of the European Convention on Human Rights. The Court has, since then, recurrently reaffirmed that States are under a duty to ensure that all persons in receipt of a final and binding court decision have the right to enforcement and that the right of access to a court “would be illusory if a Contracting State's domestic legal system allowed a final binding judicial decision to remain inoperative to the detriment of one party”.
3. The Conclusions adopted by the participants of the Council of Europe multilateral seminar on “The execution of court decisions in civil cases” held at the Palais de l'Europe, Strasbourg, on 15 and 16 October 1997, reaffirmed the legal and political importance of enforcement in the proper functioning of the judicial system in a State governed by the rule of law.
4. In Resolution No. 3 of the 24th Conference of European Ministers of Justice on “The implementation of judicial decisions in conformity with European standards”, held in Moscow on 4 and 5 October 2001, it was agreed that the “proper, effective and efficient enforcement of court decisions is of capital importance for States in order to create, reinforce and develop a strong and respected judicial system”. To this end, the European Ministers of Justice invited the Committee of Ministers to instruct the European Committee on Legal Co-operation (CDCJ) to identify common European enforcement standards and principles as regards the procedures to be applied and the role and practices of enforcement agents (e.g. bailiffs).
5. During the Council of Europe multilateral seminar on “The role, organisation, status and training of enforcement agents” held in Varna, Bulgaria, on 19 and 20 September 2002, the Conclusions adopted by the participants reasserted the importance of fair and efficient enforcement carried out by an effective profession of enforcement agents.
6. As a follow-up to Resolution No.3 of the Conference of European Ministers of Justice, and on the basis of the legal co-operation activities carried out by the Council of Europe on a bilateral, regional and multilateral level, the Working Party of the Committee of experts on efficiency of justice (CJ-EJ-GT) held two meetings at the Palais de l'Europe in Strasbourg (24-26 June 2002 and 9-11 October 2002) to prepare a draft Recommendation on enforcement for the attention of the CJ-EJ at its meeting held at the Palais de l'Europe on 13-15 November 2002. The draft Recommendation has been submitted to the European Committee on Legal Co-operation (CDCJ) which approved it on 23 May 2003.
II. COMMENTS ON THE DIFFERENT PARTS OF THE RECOMMENDATION
7. Directly following the Preamble, the Recommendation invites the governments of member States to facilitate the enforcement of those judicial decisions and enforceable titles of a judicial and non-judicial character requiring enforcement1.
8. The Recommendation applies to judicial decisions and to other judicial and non-judicial enforceable titles which are, in the wider sense, acts of a binding nature often issued by other authorities (e.g. settlements of a public notary, arbitral awards). It must be understood that not all such decisions and titles require action to be taken to enforce them as is the case, for example, for acts of a declaratory or self-executory nature or for judgments that change existing relationships (e.g. divorce or annulment of contracts).
Principle I - Definitions
9. Principle I concerns the definitions of the main references relating to enforcement: the process of enforcement, the enforcement agent, the claimant and the defendant.
10. The reference to “enforcement agent” covers a wide variety of persons responsible for carrying out the enforcement process (e.g. bailiff, huissier de justice, enforcement judge etc). It must be pointed out that, in many states, the role, responsibilities, organisation and professional status of these persons vary considerably as does their working conditions and remuneration.
11. At the time of preparation of this Recommendation, many states were re-examining their enforcement procedures and practices. In the majority of Council of Europe States, enforcement agents are classed either as civil servants subordinated to the Ministry of justice, judicial officers subordinated to the courts, self-employed persons acting independently or are employed as a combination of the above.
Principle II – Scope of Application
12. Principle II concerns the legal scope of application of the Recommendation.
13. This Recommendation applies to civil matters (including matters of a commercial, consumer, labour and family nature) and may apply to certain specific criminal matters (e.g. fines, confiscation and, in so far as it is not considered a civil matter, compensation for victims). This Recommendation does not deal with the question of immunity and enforcement.
14. In contrast, the Recommendation does not concern criminal matters involving the deprivation of liberty often relating to custody in prison nor does it concern administrative matters. In the latter instance, reference should be made Recommendation Rec (…) of the Committee of Ministers to member States on the execution of decisions in the field of administrative law, the provisions of which are without prejudice to the present Recommendation.
15. States may apply the principles contained in the Recommendation to other appropriate areas.
Principle III – Enforcement procedure
16. Throughout the Recommendation States are invited to consider different ways of improving the effectiveness of enforcement procedures and practices.
17. Principle III.1. a. makes clear that enforcement procedures should be clearly defined and laid down in a legal framework with reference to the powers, rights and responsibilities of the parties, including third parties such as maintenance claimants and defendants of an attached debt. This Principle underlines that enforcement is more effective when procedures are clear and easy to follow. This also enables the parties to more effectively understand their roles and comply with their responsibilities.
18. The reference, in Principle III.1.b., to 'compliance with the relevant law and judicial decisions' envisages two recurrent problems in many States: (i) the misuse and abuse of enforcement procedures by the parties thereby delaying the process and justice as a whole, and (ii) the risks of private forms of justice emerging when the enforcement process is inefficient.
19. To combat the emergence of such problems, States are invited to develop detailed legislation with legal certainty, transparency and easy applicability to encourage the parties to use and to rely upon enforcement to strengthen the credibility and visibility of the process.
20. The reference, in Principle III.1.c., to the duty of the parties to co-operate appropriately is necessary to increase compliance with, and reduce misuse of, the enforcement process (e.g. vexatious appeals). By co-operating and, therefore, by better communicating with each other, the vulnerability of the defendant and adverse reactions to the enforcement process (e.g. hiding assets), may be reduced. For example, a cooperative claimant may be more open to agreeing with the defendant on the assets to be attached or on payment arrangements (e.g. by instalments). In member States where these actions are permitted enforcement agents can therefore play a key role in facilitating such co-operation.
21. In addition, the co-operation of third parties, such as banks, can be extremely beneficial in the search and seizure of defendant's income and assets subject to Human Rights and data protection standards.
22. In the same vein, Principle III.1.d. refers to the duty of defendants to provide up-to-date information on their income, assets as well as other relevant matters (e.g. declarations referring to the whereabouts of a child) so that they may feel more responsible (even liable) and thereby discouraged from acting adversely. Defendants should provide such information if and as required by national law.
23. Principle III.1.e. reasserts the importance of preventing and deterring abuses of procedures by inviting States to establish mechanisms which combat procedural abuses for example by giving judges and/or enforcement agents more authority to penalise parties who are abusive (e.g. issuance of fines, increasing investigative powers).
24. In the light of the above, States should consider the ways in which the parties and the actors (i.e. judge and enforcement agent) may play a more active role during enforcement to empower and motivate them.
25. Principle III.1.f. reasserts the importance of avoiding unnecessary delays which may be brought about by unnecessary postponement of enforcement (e.g. vexatious appeals by the parties, by the decision of the enforcement agent). States are invited to overcome such delays by requiring reasons to be prescribed by law, which are subject, ultimately, to judicial review.
26. Considering the different positions of the (demanding) claimant and (often vulnerable) defendant, it is extremely important that enforcement procedure and practice strikes an appropriate and considerate balance of their interests which respects in particular Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR).
27. When the enforcement process concerns family law matters, the interests of the members of the family should be taken into account. In addition, when the enforcement process concerns the rights of children, the best interests of the child should be a primary consideration in accordance with international and national law. The main application of this Recommendation in family matters is to issues concerning the maintenance of dependants.
28. Nothing in this Recommendation should supersede the European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children2 and other relevant international instruments concerning the unlawful removal of children.
29. In certain family law cases, relevant authorities, such as social services, may have an important role to play in promoting co-operation both between authorities and between the parties concerned.
30. The vulnerable and precarious position of the defendant is further emphasised in Principle III.1.h. It recommends that certain basic assets and income of the defendant should not be seized so that he/she has sufficient means to live as a measure of respect for that person's private life and human dignity. Similar exemptions can be found in the enforcement and civil procedural codes of many states. These essential items should, nevertheless, be underlined.
31. States should also ensure that the rights of claimants' dependants such as children (e.g. maintenance) are guaranteed.
32. In some states, the law exempts the attachment of the principle dwelling of the defendant (e.g. family house) while in many other states it does not. In the latter event, the seizure of the principle dwelling and the eviction of the defendant and his/her dependants is a stressful event causing unnecessary hardship especially in states with low levels of social security and alternative housing plans. The opportunity to attach alternative assets, where appropriate, should be available within the enforcement system.
33. In Principle III.2.a., States are invited to ensure that enforcement procedures are clearly defined and easy for enforcement agents to administer to reduce any unnecessary complexity that may cause confusion and delays as well as to avoid their misuse and/or abuse.
34. In the light of the above, Principle III.2.b. invite States inter alia to exhaustively list, for the benefit of both legal certainty and transparency, all titles which may be enforced.
35. Principle III.2.c. reasserts the importance of the clarity and transparency of the enforcement process by underlining the rights and duties of the parties and of third parties in particular as regards their rankings and (percentage) entitlements to monies recovered and distributed amongst claimants.
36. States often employ different methods of serving documents pertaining to the enforcement process3. Some states use the postal service as an efficient and affordable means of service while in other states documents are served personally. In certain states, the service of documents is more problematic because of a lack of public service infrastructure.
37. Taking account of these variations and difficulties, Principle III.2.d. invites States to employ the most effective and appropriate methods of service. In strengthening the efficiency of enforcement it is therefore important that service is both assured and rapid.
38. The coercive measures referred to in Principle III.2.e. highlights the utility of measures such as fixed and variable penalties for late payment and the freezing of defendant's assets after judgment, to encourage parties to comply with, rather than to abuse, enforcement procedures.
39. In the same vein, disciplinary sanctions provide a similar incentive to combat situations where State employed enforcement agents abuse their position (e.g. suspension from office, deduction in salary).
40. Principle III.2.f. (coupled with the limitations to postpone enforcement in Principle III.1.f.) reasserts the importance of protecting the interests and rights of the parties. This is reinforced in Principle III.2.g. by the right of review of judicial and non-judicial decisions. These safeguards are offered by most if not all states but should, nevertheless, be underlined.
41. The cost-effectiveness of the enforcement process is of considerable importance in many states with limited (justice) budgets4. At the same time, justice should be an affordable option for the parties. Principle III.3. recommends that fees (e.g. of the enforcement agent) are reasonable and not excessive, are prescribed by law, are fixed and transparent and are made known to the parties in advance so that they may foresee enforcement events and act appropriately within a reasonable time. Some member States consider the use of variable interest rates on fees as an effective incentive on defendants to pay their debts more quickly. In countries where between claimants and enforcement agents there is freedom of contract concerning enforcement fees, the part of Principle III.3. which provides for enforcement fees to be prescribed by law may be restricted to fees to be born by the defendant. Indeed, in these countries, claimants should continue to have the possibility to negotiate with enforcement agents the amount of the enforcement fees, while defendants will be protected by paying the enforcement fees as prescribed by law.
42. As regards the practical actions taken by the enforcement agent, Principle III.4. underlines the importance of the principle of proportionality when carrying out the enforcement process with regard to the amount of income and/or assets needed to be attached to satisfy the claim. In so doing, the interests of the (vulnerable) defendant should be borne in mind.
43. In the light of the above, it is recommended that enforcement agents take the most appropriate and effective means of action that is best suited to the claimant and defendant and which is proportional to the objective of the enforcement (e.g. not seizing excessive amounts of assets to satisfy the amount adjudged). As previously mentioned, alternative solutions should be sought where it is practicable to do so.
44. Principle III.5 recommends that a defendant should generally bear the costs of enforcement because the enforcement will usually only have been initiated because of the defendant's failure to pay or to comply with a court order, or to contact the court or claimant to explain his/her failure to do so. Where a claimant is offered an 'enhanced' form of service for an extra fee, it would only be fair for the defendant to bear that fee if he/she had been warned of the possibility that the claimant might access that service if the defendant did not comply with a court order.
45. Principle III.5 places a general onus on the defendant to bear costs. It does not preclude the possibility of other parties who abuse the process to bear costs also. States may however make exceptions to this principle, for instance in family law cases. This is without prejudice to the way in which the costs of the enforcement, including costs based on a fixed scale, may be calculated.
46. With regard to the search and seizure of defendants' assets, Principle III.6. highlights the importance of collecting information using (electronic) registries of assets (e.g. land, company and tax registers) and other available sources (e.g. banking information). This information should, where appropriate, be accessible to enable effective enforcement. In so doing, the dematerialisation of assets may be avoided.
47. In the same Principle, States are also invited to consider the useful option of making defendants declare their assets - preferably in writing and as early as possible - to avoid the temptation for parties to act irresponsibly or even fraudulently.
48. At all times during the search and seizure of defendants' assets, States should take account of relevant Human Rights and data protection provisions in particular the right to respect for private and family life pursuant to Article 8 of the ECHR and the Convention for the Protection of individuals with regard to automatic processing of personal data (ETS No. 108) and its Additional Protocol regarding supervisory authorities and trans-border data flows.
49. Principle III.7. further highlights the importance of being prompt in the sale of defendants' assets, particularly when selling by auction, to ensure that the highest market value is obtained and to avoid depreciation. The aim of this Principle is to best realise the potential value of assets in the interests of both the claimant and defendant.
Principle IV – Enforcement agents
50. The reference, in Principle IV.1. to “enforcement agent” is, as previously mentioned, a generic term for persons authorised by the state to carry out enforcement but who are not necessarily employed by the state. No formal position is taken on the professional and institutional status of enforcement agents.
51. States should bear in mind their responsibilities to properly regulate the practices of enforcement agents subject to appropriate levels of monitoring and scrutiny (e.g. Ombudsperson) and to the possibility of judicial control. Enforcement agents should act, at all times, within the law even if they are paid by, or act upon the instigation of, claimants.
52. The regulation of the role, responsibilities and powers of enforcement agents is considered to be of particular importance. This also allows the parties to better understand the authority and role of enforcement agents.
53. In deciding on the extent of the role, responsibilities and powers of enforcement agents, States should consider ways of motivating enforcement agents when deciding on the level of autonomy they may exercise in their work.
54. The recruitment of enforcement agents, referred to in Principle IV.3., invites States to consider the moral standards of candidates (e.g. no criminal record) in particular because of the important and delicate role that enforcement agents play when interacting with the parties. To this end, it should be noted that enforcement agents need to be particularly sensitive to the interests of defendants.
55. Candidates' legal knowledge and training in relevant law and procedure is of considerable importance when recruiting enforcement agents and it is recommended, in Principle IV.3., that pre-selection examinations are conducted to assess their theoretical knowledge (e.g. civil procedure law) and their practical knowledge (e.g. oral examinations, case study assessments).
56. The profile of enforcement agents is further explored in Principle IV.4. States are urged to ensure that enforcement agents are honourable and competent in their duties. This, in particular, refers to the high profile of enforcement agents as persons authorised by the state who, at all times, should act in an appropriate (competent) manner in accordance with recognised high professional and ethical standards that are fitting to the profession. Enforcement agents should act responsibly with regard to the interests of the claimant, while recognising and responding to the needs of vulnerable defendants.
57. In member States where enforcement agents act as intermediaries between the parties, Principle IV.4 also invites States to ensure that they are professional in their dealings and do not act in a biased manner.
58. Principle IV.5. reasserts the importance of clearly defining the powers and responsibilities of enforcement agents in particular in relation to those of the judge to ensure that there is a clear delineation of authority in the carrying out of the enforcement process.
59. Principle IV.6. recommends that appropriate proceedings are used to ensure that an enforcement agent who is alleged to have abused his/her position is subject to disciplinary, civil and/or criminal proceedings so that the allegations are investigated fairly, and, if abuse is found, that the enforcement agent will be subject to appropriate sanctions. This gives the enforcement agent the reassurance that false allegations will be dismissed, and the defendant confidence that he/she has an effective remedy against the unfair behaviour of an enforcement agent.
60. States who employ enforcement agents as public servants are invited, in Principle IV.7., to provide proper working conditions (e.g. premises, vehicles and computers), adequate physical resources (e.g. sufficient numbers of agents to manage and carry out enforcement) and support staff (e.g. administrative staff). The effective enforcement of court decisions necessitates a certain degree of financial commitment.
61. It should also be noted that Principle IV.7. refers only to state employed enforcement agents and not to self-employed enforcement agents who finance and remunerate themselves independently of the state.
62. In addition, state employed enforcement agents should be adequately remunerated to reflect their high profile role and responsibilities. In so doing, they may be motivated to act in the manner that is expected of them.
63. Once recruited, States are invited, in Principle IV.8., to maintain the professionalism and high standards of enforcement agents by ensuring that enforcement agents undergo initial and continuous training according to clearly defined and well-structured aims and objectives. In so doing, they may be motivated according to high professional standards.