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CCJE-GT(2010)3REV2

Strasbourg, 18 March 2010

    WORKING GROUP
    OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
     (CCJE)


    The Hague, 18th meeting, 17-19 March 2010

    Opinion No. 13 of CCJE


    Draft Structure

    Deadline for contributions to be sent to the Secretariat:
    end of April

    I) Introduction
    (Secretariat/G. Reissner)

    A) Terms of reference, etc.

    B) Scope

    1. The Opinion will deal with:
    - civil matters
    - administrative matters ?
    - criminal matters
    - international matters/decisions of the ECHR

    2. The Opinion should focus on the role of the judge in the enforcement of court decisions and not deal with the enforcement procedure in general.

    C) Reference documents

    Convention on Human Rights (Article 6) and jurisprudence of the Court of Human Rights (Findley vs UK, Van de Hurk vs NL). The legislator should not deal with enforcement (Cuberden vs France) (Also Hornsby vs Greece, Burdov vs Russia n2, Akashev vs Russia)

    Rec(2003)16 of the Committee of Ministers to Member States on the implementation of administrative and judicial decisions in the field of administrative law

    Rec(2003)17 of the Committee of Ministers to Member States on enforcement

    Report of the ECHR on enforcement ?

    Report "European judicial system," Chap.13

    Enforcement of Judgments in Europe, studies of the CEPEJ No. 8

    CEPEJ Guidelines for better implementation of existing Recommendations of the Council of Europe on enforcement

    Some other documents on criminal matters, prison rules, torture and data protection

    Case law of the Court ?

    II) General principles
    (R. Sabato for judges and legislation, G. Reissner for the rest)

    3. The enforcement of court decisions is an essential element of running a State based on the rule of law.

    4. Article 6 of ECHR includes enforcement procedure:
    - the procedure is not finished with the judgement but needs an effective enforcement
    - elements of a fair trial have to be applied also in the stage of the enforcement procedure

    5. Importance of rights to the parties: the procedure must be implemented in espect of fundamental rights and freedoms (Article 8 ECHR)

    6. Clarity is necessary :
    - of the legislation according to the means provided, the procedure to be applied the possibilities to postpone etc.
    - of the jurisdiction who are the competent enforcement authorites which means are possible
    - of the decisions which should be enforced

    7. The enforcement procedure shall not offer the possiblity to challenge the authority of the judicial decision: neither by a repetition of the procedure within the judiciary nor by an external enforcement agent (problem of interference of the aother powers of state)

    8. There is no need for a new court procedure by parties in order to engage the enforcement procedure. The enforcement has to be the evident follow-up of the decision.

    9. The enforcement fees should not be an obstacle

    10. In any cases, the other powers can interfere in the enforcement process of a decision taken by the judicial power.

    11. There exists a great number of different enforcement systems in the member states. One can group them into three classes: public- priviat – mixed. Nevertheless in all systems some fundamental requirements of to be guaranteed.

    12. Efficiency of the enforcement procedure of all kinds/sufficient support of force authorities (police, etc.)

    13. Necessary funds have to be provided to have sufficient means for enforcement

    14. The enforcement procedure shall take into account the fundamental rights of the person

    15. Prevention of abuse of the procedure?

    16. There has to be the possibility of a remedy or an appeal or ….. to a judge if the enforcement is not initiated or is delayed by the competent bodies

    17. There should always be a judge to solve problems and to give orders to State authorities and other relevant bodies to enforce decisions ; at the final stage, it is up to the judge to use all possible ways to ensure enforcement.

    III) The role of judges in the enforcement in in civil and administrative matters
    (A Lacabarats and JF. Cobo Saenz for civil, R. Sabato for administrative)

    18. Description of the role of the judge according to the system (civil or common law)

    19. Need to simplify the enforcement for users/the judge has to solve difficulties when rights and obligations of parties are not respected during the enforcement procedure

    20. Efficiency of the procedure means that the judge has, first of all, to enable the creditor to enforce the judicial decision – But principle of proportionality as concerns interests of the creditor and the debtor

    21. The enforcement procedure does not constitute a new procedure as such. But need to remedies if nothing happens or if it goes too slow during the enforcement procedure. Then, new judicial procedure.

    22. Transparency of information concerning assets: does it belong to the claimant to undertake all researchs concerning assets of the debtor? Can the judge play a role in this field ? Balance with data protection

    23. Public authorities shall not be allowed to declare secret some information necessary for the enforcement of a judicial decision/Access to data/Creation of data basis with strict regulation of use under the authority of the court? (cf CEPEJ guidelines)

    24. The role of the judge in balancing the right of privacy and the right of executing the decision

    25. Relationship with the enforcement agents

    26. Migration and asylum problems

    27. Fixation of terms for administration by the judge. In case of non respect, the sanction can be a fine

    28. Exceptions in administrative law: immediate enforcement (non paiement of salaries of civil servants, infringment of individual rights, etc.)

    29. Differences for enforcement of decisions reached by compromise?

    30. Specific training and skills of the judge: bank field/transparency and publicity concerning assets/simplification of procedures. Common training judges/enforcement agents

    IV) The role of judges in the enforcement in criminal matters
    (P. Maffei and A. Arnaudovska)

    31. Respect the rights of detainees (including living conditions of prisoners, mail/corrspondance control):
    - Control of detention conditions by the judge when there is a violation of human rights//General supervision of detention conditions by the administration (Recommandation of CPT or Commissioner on this field?)

    32. In many States, enforcement of judicial decisions are under the responsibility of Public Prosecution. What about decisions which are not enforced for various reasons (criminal policy, costs, small sentences)?

    33. Intervention of the judge after claim of individuals or ex-officio ?

    34. Relationship with the enforcement agents

    35. Specific training and skills of the judge: psychiatric elements

    V) The role of judges in the enforcement on the international level
    (A Lacabarats and JF. Cobo Saenz for civil and P. Maffei for criminal matters)

    a. Crossborder enforcement

    b. Enforcement of the decisions of the European Court of Human Rights

    36. See Interlaeken Declaration

    c. International co-operation

    37. No reference to specific documents

    38. Mutual trust

    39. States could examine the possibility to give, for each State, exclusive jurisdiction for the enforcement of international cases

    VI) Conclusions