Strasbourg, 30 March 2021								CEPEJ-GT-EVAL(2021)7
European Commission for the Efficiency of Justice (CEPEJ) Working Group on the evaluation of judicial systems (CEPEJ-GT-EVAL)
(preparatory document) Specific Study of the CEPEJ on the Legal Professions: Enforcement Agents Contribution from the International Union of Judicial Officers (UIHJ)

Note: This document is a contribution written by UHIJ[1] on the basis of CEPEJ data and reports (mainly 2018 data) and enriched with their analyses, opinions and conclusions based on their networks and experiences. The information and positions presented in this study are those of the authors and do not necessarily reflect the official position of the CEPEJ. The CEPEJ does not guarantee the accuracy of the data, analyses, opinions and/or conclusions of this study. Neither the CEPEJ nor any person acting on behalf of the CEPEJ can be held responsible for any use that might be made of the information contained therein.

Effective enforcement of court decisions is an integral part of the requirements of Article 6 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights[2]. In view of the volume of cases pending before the Court and the instruments adopted by the Council of Europe in the field of enforcement, the CEPEJ has decided to pay particular attention to this question in this report.

In non-criminal matters, the Committee of Ministers of the Council of Europe adopted, in September 2003, two relevant Recommendations in the field of enforcement. Recommendation Rec(2003)17 on the enforcement of judgments defines enforcement as "giving effect to judgments and other enforceable titles, whether judicial or non-judicial, in accordance with the law which obliges the defendant to do, to refrain from doing or to pay what has been decided". This Recommendation is mainly aimed at enforcement in civil matters, while Recommendation Rec (2003)16 focuses on the enforcement of court decisions in administrative matters.

Following Recommendation Rec (2003) 17[3], the CEPEJ adopted, in December 2009, its Guidelines for a better implementation of the existing Council of Europe recommendation on enforcement (CEPEJ (2009)11REV2). A specific study of the CEPEJ was also devoted to this subject[4].

In December 2015, the CEPEJ took a further step in dealing with the issue of enforcement, by elaborating a Good practice guide on enforcement of judicial decisions (CEPEJ (2015)10). With this guide, the CEPEJ focuses its attention on the reception, in national law, of the principles enshrined in Recommendation Rec (2003)17 and developed in the 2009 Guidelines.

It is difficult to evaluate the good enforcement of court decisions in civil and commercial matters on the basis of relevant statistics, as enforcement is not automatic. It is up to the successful parties to decide whether or not to request enforcement of the court decision. This study of the International Union of Judicial Officers (UIHJ), which is mainly based on CEPEJ data, is thus not so much interested in the rate of enforcement of court decisions as in the organisation of the enforcement process and the role of enforcement agents. The CEPEJ, through its questionnaire for the evaluation of judicial systems, has nevertheless tried to evaluate the duration of the enforcement procedure, which is one of the components of the reasonable time of proceedings taken into account by the case law of the European Court of Human Rights.

The Recommendation Rec (2003)17 on enforcement and the above-mentioned documents adopted in its wake describe the tasks and duties of enforcement agents as well as the enforcement procedure[5] and the rights and obligations of the plaintiff[6] and the defendant[7]. The Recommendation defines an enforcement agent as "any person, whether a public official or not, authorized by the State to conduct enforcement proceedings". This is the definition used in the context of this study. It is based on the principle that the enforcement agent may have a public status (for example, a judge or court official acting on his or her delegation) or a private status (for example, a bailiff or court commissioner), both statuses being able to coexist in the same State (mixed regime).

In criminal matters, the execution of sentences is of a different nature. It involves the public authorities, often under the supervision of the judge, and depends on the choices of penal policy.

Before presenting the trends and the main conclusions drawn from the analysis of the data collected from the Member States, the enforcement of court decisions in civil, commercial and administrative matters and the enforcement of court decisions in criminal matters will be examined in turn.

1.            Enforcement of court decisions in civil, commercial and administrative matters

This study focuses both on civil enforcement proceedings and on the professionals responsible for their implementation. In this perspective, the organisation of the profession of enforcement agent, the efficiency of enforcement services as well as the efficiency of enforcement measures, will be successively considered.

1.1. Organisation of the profession of enforcement agents

The professional organisation of enforcement agents can be assessed both in terms of the status and number of these practitioners, as well as the conditions of access and the organisational structure of this profession.

Table 1.1: Existence, number and status of enforcement agents in 2018 (Q. 169, Q 170, Q. 171, Q. 171-1)

Status of Enforcement Agents

All member states have defined a status for enforcement agents, including judicial officers. However, in several states, enforcement agents are registrars and assistant judges (Denmark) or legal secretaries (Spain). In Switzerland, all systems exist and vary from canton to canton.

In some states, enforcement agents work exclusively in a government-regulated profession. In others, enforcement agents are attached to a public institution. The rest of the member states combine the status of bailiffs attached to a public institution with that of enforcement agents practicing in a liberal profession or combine private or public status with that of other enforcement agents who are themselves public or private, as appropriate, e.g. France (huissiers du Trésor, in charge of tax collection), Germany (senior officers of the judiciary), Ireland (sheriff/solicitor and revenue sheriff, in charge of tax collection), Portugal (enforcement agents) and Scotland (UK) (Sheriff Officers and Messengers at Arms).

In summary, the status of enforcement agents can be broken down into public status, private status or a combination of statuses. Enforcement agents have private status in 18 states or entities; in 11 states or entities they have public status and there is a mix of statutes in 17 states or entities. Similarly, in 31 states or entities, some or all of the enforcement agents operate as liberal professionals under the supervision of a public authority. A comparison with the previous CEPEJ study clearly confirms the trend already noted between 2006 and 2014: if public enforcement agents still exist in many States or entities, the European tendency is to reduce their existence, sometimes to the benefit of a mix of statutes (when private and public statutes coexist), but especially to the benefit of the private statute.

Qualifications to become an Enforcement Officer

The professional training - initial and continuing - of enforcement agents, is important for any good enforcement process. It is fundamental to inculcate the responsibilities of the enforcement agent and to ensure uniformity of competence in the profession.

Table 1.2: Training of the enforcement agents in 2018 (Q172, Q172-1)                               

Specific initial training

In Europe, it is very often required that candidates for a position of enforcement agent have completed a practical training period and/or hold a legal degree. The skills required to enter the profession should place enforcement agents on the same level of expectations and training as judges, notaries and lawyers.

With regard to the training given to future staff and the existence of a final selection procedure, where applicable, there are disparities between Member States. Nearly 76.5% of the responding states or entities (36 out of 47 states) mentioned the existence of specific initial training (as opposed to continuing education for existing agents) in the profession of enforcement agent. By way of comparison, in 2012, 75% of the responding States reported the existence of such training or an entrance exam. By 2014, 76% of the responding states had done so. Thus, initial training in an area which is gradually becoming a standard in Europe.

There seems to be some correlation between, on the one hand, the status (public or private) of agents and, on the other hand, the existence of an initial training or final selection procedure.

States or entities in which there is no specific initial training or examination often entrust the enforcement of court decisions to officials in the administration of justice, under the authority of a competent judge or to court employees. When they assign enforcement to judicial officers, in general the judicial officers are directly attached to a public authority (Bosnia and Herzegovina, Finland, Malta, Norway and the Russian Federation) or, at least, to a mixed regime (both private and public) in the country (Cyprus, Ireland, Northern Ireland (UK) and Switzerland).

 

On the other hand, there is an initial training or final selection procedure in almost all States where enforcement agents have an exclusively private status (Scotland and Monaco being exceptions).

Mandatory general continuing training

It follows from point 26 of the Guidelines on enforcement, adopted by the CEPEJ in December 2009, that enforcement agents should be subject to a system of mandatory continuing professional training[8]. In 2018, such a system is noted in more than half of the responding member states (27 states out of 47, i.e. approximately 57%). By comparison, in 2014, this position was applicable in 46% of the Member States that replied (21 out of 46).

Organisational Structure

The level - national, regional and/or local - of centralisation of the organisation of the profession of enforcement agents, if any, varies greatly from one Member State to another, with no relevant link to the regime of this profession.

In a majority of European states (35 in 2018; 30 in 2014), the structure is exclusively national. The predominance of the national structure can be explained by the interest in creating a body dynamic, based on a sense of professional identity, while homogenizing skills and practices. A national structure may also be more appropriate for a State that is primarily looking for a representative body for the entire profession. It may also be more relevant for the profession itself, which achieves economies of scale in terms of communication with its members, in particular when the number of judicial officers is small or in relation to the size of the country: in this way, the profession can speak to the State with a single voice. This is the most widespread system.

There are also cases where the profession is organized only at a regional level (Austria). A low degree of centralisation probably favors local presence. Such proximity makes it easier for enforcement agents to take into account the difficulties they face and to report problems from the bottom up. However, it certainly makes it more difficult to have a comprehensive view of the problems of the profession.

Some Member States have opted for an organisation that is neither exclusively national, nor exclusively regional or local. Rather, they have opted for a multi-level organisation, either in order to combine the advantages of the two systems, or taking into account the number of enforcement agents, the structure or the size of the State (Azerbaijan, France, Germany, Greece, Switzerland).

Finally, the number of Member States in which there are no specific bodies governing the profession of enforcement agents decreases slightly from one practice to the next. There are 6 states in 2018, 9 in 2014 and 10 in 2012.

Table 1.3: Organisation of the profession in 2018 (Q173)                                                          

Number of enforcement agents

In 2014, 43 member states or entities reported their number of enforcement agents. This information is presented in tables 1.1 and 1.1a.

Table 1.1: Existence, number and status of the enforcement agents in 2018 (Q169, Q170, Q171, Q171-1)      

                                                                                                                     

Table 1.1a: Number of enforcement agents per 100 000 inhabitants 2012 - 2018 (Q170)                                        

It is interesting to note that the average number of enforcement agents per 100,000 inhabitants has been steadily decreasing since 2012 (i.e. 6.5 in 2012; 6.2 in 2014; 6.1 in 2016 and 5.8 in 2018).

The evolution is very uneven between countries, regardless of whether the regime in force is private, public or mixed.

These evolutions are sometimes very obvious (e.g. in Czech Republic, there has been a steady decrease in the number of judicial officers since 2004: over a period of fourteen years, the workforce has been halved: the number has fallen from 553 to 276 ; conversely, in Poland, the number has almost tripled in 14 years: there are 1719 bailiffs in 2018, up from 590 in 2004).

They are the result of multiple factors. If we except the explanations related to the evolution of the calculation method (e.g. in Switzerland, the increase can be explained by the fact that agents of the prosecution offices have only been explicitly included in the statistics since 2010; previously, some cantons had included them and others had not: 1489 agents in 2008 for 2001 in 2018), other explanations can be put forward, such as the massive recruitment of professionals to meet the needs that arose due to the existing caseload (e.g. in Turkey: 3540 agents in 2014 for 5395 in 2018) and with the aim of to reduce the duration of enforcement procedures, carried out by judicial officers (e.g. in Poland).

In addition, these evolutions may be the consequence of a reform of the status of enforcement agents. For example, the liberalisation of the profession may be the cause of a decrease in the number of enforcement agents, as in Albania (182 agents in 2012, for 57 in 2014), in Republic of Moldova (303 agents in 2008, for 173 in 2018) or in Montenegro (54 agents in 2012, for 31 in 2018). Conversely, in Romania, we observe a strong increase in the number of judicial officers between 2008 and 2014 (more than 100% increase), mainly due to the merger with bank enforcement agents and the inclusion of the latter within the profession in 2010 (there are 868 in 2018).

It’s also noted that the evolution of the number of enforcement agents should not be confused with that of the number of offices. For example, in France, the number of judicial officers has been relatively stable over the past fourteen years (3251 in 2018). On the other hand, the number of judicial officers' offices has been constantly decreasing over the same period (approximately 2500 offices in 2002 and 1679 today), due to the abolition of offices and the regrouping of judicial officers.

More generally, in 2018, out of the 43 states or entities that provided information on this issue, 30 are at or below the European average (5.8 agents per 100,000 inhabitants, a figure that has been declining since 2012). In the same year, only 7 states (Armenia, Cyprus, Finland, Greece, Portugal, Switzerland and Ukraine) have more than 10 agents per 100,000 inhabitants.

Considering only those countries where enforcement agents are judicial officers, exercising exclusively within the framework of a liberal profession and those countries where enforcement agents are judicial officers exclusively attached to a public institution (countries with a mixed regime being excluded), a certain correlation appears between the status and the number of professionals concerned. For several countries and entities, it was possible to determine the number of enforcement agents per 100,000 inhabitants according to their status. Table 1.1 shows that there are three groups of countries among those that answered the questions on the number of practicing enforcement agents: the median value of the group of public enforcement agents is higher (5.8 enforcement agents per 100,000 inhabitants) than the median value of the group of private enforcement agents (4.3 enforcement agents per 100,000 inhabitants). In comparison, the median of the mixed-status group is around 7.7 bailiffs per 100,000 inhabitants.

It is interesting to compare these values with those of period 2010, 2012 and 2014. The median has been stable for private judicial officers since 2012 (4.3 judicial officers per 100,000 inhabitants in 2012 and 4.4 in 2014), whereas it had slightly increased compared to 2010 (3.8 judicial officers per 100,000 inhabitants), which was partly explained by the increase in the number of judicial officers in some countries (Poland, Romania). For the public sector, the median decreased significantly compared to 2012 (8 bailiffs per 100,000 inhabitants), whereas it had increased significantly in the previous year (6.2 bailiffs per 100,000 inhabitants in 2010). A similar observation can be made with respect to the mixed sector. There is a decrease compared to 2012 (8.4 bailiffs per 100,000 inhabitants), which follows an increase of almost 50% compared to 2010 (5.7 bailiffs per 100,000 inhabitants). These variations can be explained overall by the changes in regimes between 2010 and 2018. For example, Armenia, Scotland (UK), Spain, Ireland, Iceland and Serbia were included in 2010 under the heading of "public regime" and in 2012 under the heading of "mixed regimes"; in 2018, Scotland is counted among the states that have opted for private status and several countries are not counted. In addition, in the 2018 data, Montenegro, which had a high average in 2012 (8.7 bailiffs per 100,000 inhabitants), now appears in the "private regime" category with a much lower average (6.5 bailiffs per 100,000 inhabitants).

Feminisation rate

Table 1.1: Existence, number and status of enforcement agents in 2018 (Q. 169, Q 170, Q. 171, Q. 171-1) / Average gender ratio for enforcement agents in 2018

The data collected by the CEPEJ reveal that in 2018, the majority of persons exercising the activities of enforcement agents were men (i.e. 64%, i.e. approximately two thirds). It is nevertheless noted that in five states, the percentage of women exceeds 60% (Andorra, Estonia, Monaco, Portugal, Sweden).

1.2          Effectiveness of enforcement services

The effectiveness of enforcement services can be assessed in terms of the existence of quality standards, the arrangements for monitoring and supervising the activities of enforcement agents and, to some extent, the complaints made and disciplinary proceedings initiated against these professionals. Moreover, in the wake of points 33 and 34 of the CEPEJ Guidelines on enforcement, this effectiveness can also be considered in the light of the missions assigned to enforcement agents.

The existence of quality standards

Table 1.4: Quality standards for enforcement agents in 2018 (Q. 179, Q 180)

Quality standards for the profession are in place in more than 2/3 of the countries (32 out of 47) where there are enforcement agents. In Europe, between 2008 and 2018, there is a clear trend towards the adoption of such standards (in 2008: 26 states or entities providing for such standards, compared to 19 not providing for them; in 2018: 32 states or entities, compared to 15).

The existence of quality standards is an important guarantee of the correct enforcement of court decisions and other enforceable titles. Properly disseminated, these standards help to ensure greater efficiency of enforcement services and equality of law[9]. For example, in Germany, they are used to standardize procedure and quality assurance. There are several types of standards :

-       The most frequent are codes of ethics or deontology (e.g. Albania, Azerbaijan, Belgium or, more recently, Portugal). These standards are, in most cases, quite similar from one country to another: for example, in Georgia, the criteria are professionalism, respectability, managerial and communication skills in relation to the code of conduct.

-       some standards are based on a collection of statistics, determined in advance and harmonized so that they can be compared more easily. This would allow them to be discussed with enforcement officers. For example, in Finland, there are annual negotiations between the local authorities and the national enforcement office. These negotiations are part of the method called "management by results". These standards are defined as part of the negotiations. The main standards used are the length of the procedure and the efficiency of collection. Long-term objectives defined are, for example, the reduction of the number of debtors or the reduction of collection costs.

-       Some countries combine both aspects, such as Poland, where there are quality standards provided for by law regarding procedure (deadlines, etc.) and ethical standards established by the corporation (such as professionalism, secrecy, dignity, etc.).

-       Some standards are less shared by member states and therefore difficult to consider as standards of quality of enforcement. For example, in Armenia, standards include health measures.

-       some standards are based on the proposals enacted by the CEPEJ to the Member States[10], as for example in Portugal.

Contrary to what was the case in previous years, it now appears difficult to establish a correlation between, on the one hand, the status (public or private) of agents and, on the other hand, the existence of quality standards. In States where enforcement agents have a purely private status, the proportion of those establishing quality standards has always been higher. On the contrary, in states where enforcement of court decisions is entrusted to public agents, there has not been a significant difference between the percentage of agents subject to standards and the percentage of agents not subject to standards to date. Now, on this point, there is a certain alignment of the situations observed in these two groups of states. Thus, several countries in which enforcement is entrusted to public officials have adopted such quality standards.

Competent authorities for the supervision or control of activities

Table 1.5: Supervision and monitoring of enforcement agents in 2018 (Q. 177, Q. 178, Q. 182)

Supervision of activities is the process by which an authority provides feedback to the Enforcement Officer on his or her work methods (scheduling problems, lack of courtesy, etc.). It is a kind of simplified control that does not involve the actual examination of a complaint but is intended to ensure the proper administration of justice. By "control", we mean the control of the legality or illegality of the actions of the enforcement agent.

Monitoring and control of the activities of the enforcement agents is almost systematic. Only three states report the absence of competent authorities in this area (Albania, Malta, Sweden).

In civil matters, prosecutors are responsible for the supervision and control of enforcement agents in 29 states, but they are never the sole responsible body. In all cases, prosecutors share this function with a judge (e.g. Andorra, Azerbaijan, Bulgaria, Switzerland), a professional association (e.g. Estonia, France, Czech Republic) and/or the Ministry of Justice (e.g. Armenia, France, Greece, Slovakia, Slovenia, Turkey).

The actual existence of a professional organisation suggests that States use it to monitor and control enforcement agents. Indeed, 22 States or entities have chosen a professional body as their competent authority. Given the high number of Member States with a professional body (40 States or entities), the corresponding percentage may seem low on balance. The percentage of professional bodies with powers to supervise and control enforcement agents seems to be correlated with the status of enforcement agents: the probability that the professional body is the competent authority is higher in cases where enforcement agents have a private status (see however Austria, which has chosen this solution whereas enforcement agents have a public status).

In 2018, 24 states have chosen to make judges responsible for supervising and controlling the activities of enforcement agents. There has been significant progress in this regard. In comparison, only 14 states had opted for this option in 2010. This trend may reflect a certain "judge culture" in the context of enforcement, particularly in Central and Eastern European countries.

In 29 states or entities, the Ministry of Justice is responsible for overseeing the activities of enforcement agents. Where the Ministry of Justice is the responsible authority, it is not uncommon for there to be a joint ("judge-ministry") system of control and oversight (16 of 29 states).

In a large majority of European states, there are multiple authorities responsible for the supervision and control of the activities of enforcement agents (31 states). In this respect, 12 states or entities (Bulgaria, Czech Republic, England and Wales, Hungary, Latvia, Lithuania, Montenegro, Poland, Romania, Serbia, Scotland (UK), Northern Macedonia, Romania, Serbia) declare that this function is carried out jointly by the professional association, judges, the Ministry of Justice and prosecutors. Conversely, in 8 states, a single supervisory and control authority is competent. This may be the professional association (Austria, Netherlands) or the judges (Bosnia-Herzegovina, Croatia, Denmark, Ireland, Monaco, Norway).

In practice, the supervision system is often supported by statistical analysis or inspections. In 2009, a specific commission was established in Portugal, namely the Commission for the Efficiency of Enforcement Procedures (following a reform in 2014, it became the Commission for the Monitoring of Court Officers). The aim is to set up a system for monitoring enforcement and collecting data useful for formulating recommendations on the effectiveness of the system and the training of enforcement agents.

Complaints against enforcement officers

Table 1.6: Main complaints made by users concerning the enforcement procedure in 2018 (Q. 183)

The "excessive length of enforcement proceedings" is the main reason for complaints in the member states (33 states or entities) in 2018. This high figure - which can be linked to the abundant case law of the European Court of Human Rights on the subject - is broadly stable compared with previous years (34 States or entities in 2012 and 2010; 32 in 2014). The second most frequent ground for complaint - "excessive cost of enforcement proceedings" - varies slightly: 19 States or entities report that they were faced with this problem in 2018, compared with 22 in 2014 and 17 in 2012.

In addition, since 2010, there has been a significant increase in complaints about "lack of information" (17 states in 2018, compared to 10 in 2010). This increase is gradual (12 states in 2012 and 14 states in 2014). Among the explanations for this increase, one can probably point to the greater awareness of the public on this subject. Inversely, all other reasons are either decreasing compared to previous years ("non-enforcement of judicial decisions rendered against public authorities: 2 states or entities in 2018, compared to 6 in 2014 and 2012) or stable : "illegal practices" (14 states in 2018; 12 states in 2014; 14 in 2012), "total lack of enforcement" (12 states in 2018 and 2014; 13 in 2012), "other" (9 states in 2018, compared to 8 in 2014 and 10 in 2012) and "insufficient supervision" (2 in 2018, compared to 1 in 2014 and 5 in 2012).

Analysis of the correlation between complaints and the existence of quality standards leads to some interesting conclusions (comparison of Tables 1.4 and 1.6).

For each of the main reasons mentioned above, the states in which there are quality standards for enforcement agents, are the most likely to report complaints. For example, out of 33 states reporting "excessive duration," 23 have quality standards. This proportion is 12 out of 19 states for the ground of "excessive cost", 10 out of 17 states for "lack of information" and 12 out of 14 states for "unlawful practices".

This finding, a little surprising at first glance, could be explained by the fact that the existence of quality standards would help to identify certain unacceptable behaviors, which would result in an increase in the number of complaints related to such behaviors.

                                                                   

Focusing on the most common grounds for complaint, it can be seen that states with quality standards mention them in the following order: (1) excessive duration, (2) unlawful practices, (2a) excessive costs, (3) lack of information. States without quality standards, on the other hand, mention the "main grounds for complaint" in a slightly different order: (1) excessive length of time, (2) lack of information, (2a) excessive costs, (3) lack of enforcement.

Disciplinary proceedings and sanctions

The number of complaints made against enforcement agents may seem to be a useful and enlightening indicator. However, it should be viewed with great prudence, for two main reasons. Firstly, the number of complaints is to some extent inflated by proceedings unrelated to any disciplinary fault (proceedings relating to the principle of enforcement itself or the principle of the court decision and proceedings to request postponement). Secondly, disciplinary proceedings and efficiency of services, cannot be considered synonymous: the greater or lesser number of proceedings - including in relative terms in relation to the number of enforcement agents in activity - can in no way be interpreted as a sign of a lack of competence or integrity on the part of enforcement agents, bearing in mind that the number of proceedings may just as well indicate an increased propensity of the society to go to court or simply have  a greater zeal or distrust on the part of the disciplinary bodies.

The analysis of the correlation between, on the one hand, the proceedings for ethical misconduct or professional inadequacy initiated and, on the other hand, the existence of quality standards makes it possible to draw interesting conclusions. The percentage of states that record such proceedings is higher in the group of member states with quality standards. This finding is not surprising: quality standards can help to define concepts (professional ethics and professional inadequacy) and can be used to justify procedures in the event of breaches.

Table 1.7: Disciplinary proceedings initiated / sanctions pronounced against enforcement agents in 2018 (Q. 187, Q. 188)

Table 1.7a: Disciplinary proceedings initiated / sanctions pronounced against enforcement agents in 2018, standardised per 100 enforcement agents (Q. 170, Q. 187, Q. 188)

Neither the number of disciplinary measures imposed on enforcement agents nor the number of proceedings initiated can be considered sufficient indicators of the effectiveness of the system. A high number of measures in a given state – including, in relative terms in relation to the number of active enforcement agents - may also reflect an increased propensity of society to litigate or simply a greater stringency.

At most, there were significant fluctuations in relation to previous years in some States, either upward (e.g. in Italy, 36 cases initiated in 2018, compared with 21 in 2014) or downward (e.g. in Georgia, three cases initiated in 2018, compared with 99 in 2014; Portugal: 120 cases initiated in 2018, compared with 320 in 2014; Turkey: 1922 cases initiated in 2018, compared with 2656 in 2014). This type of comparison - between successive periods - of the number of proceedings instituted in a given State, is interesting in that it shows, for example, the evolution of professional practices or the introduction of legislative reform. However, an important limitation is that not all States systematically report the relevant data for each year.

Considering the 33 states or entities that were able to provide statistics on sanctions imposed in 2018, reprimand was the main sanction in 14 of them (Armenia, Azerbaijan, Belgium, Bulgaria, Finland, Georgia, Germany, Hungary, Italy, Moldova[11], Netherlands, Slovenia, Sweden and Ukraine). Fines are the second most frequent sanction (in 7 states, namely: Estonia, Moldova, Montenegro, Northern Macedonia, Portugal, Romania and Slovakia). Next comes suspension (Greece). Another 5 states (Bosnia and Herzegovina, Czech Republic, Latvia, Lithuania and Poland) indicate "other types of measures" as the most frequent. The sanction of dismissal has been formulated (Germany, Bulgaria, Ukraine), but is never the most frequent sanction in a given State. Finally, no sanction was pronounced in Andorra, Austria, Cyprus, Luxembourg, Monaco, Switzerland and Northern Ireland (UK) during the last period.

Competence assigned to executing agents

Table 1.8: Civil enforcement proceedings carried by enforcement agents in 2018 (Q. 171-2).

Among the competences exercised by enforcement agents, the first and foremost is the carrying out - most often as a monopoly - the enforcement procedures provided for by the law of the State in which they exercise[12]. More specifically, this is the case for: the seizure of movable tangible properties (47 States, 35 of which have a monopoly), the seizure of motorized vehicles (46 States, 35 of which have a monopoly), the seizure of immovable properties (44 States, 33 of which have a monopoly), eviction measures (43 States, 39 of which have a monopoly), the seizure from a third party of the debtor claims regarding a sum of money (ex. a bank) (43 states, 33 of which have a monopoly), public auction of seized property (42 states, 33 of which have a monopoly), seizure of the debtor's remunerations (39 states, 29 of which have a monopoly) and "other" (26 states, 19 of which have a monopoly). This order changes little from one year to the next.

In 2018, in 30 States (Albania, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Czech Republic, Estonia, Finland, Georgia, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Montenegro, Northern Macedonia, Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Turkey), enforcement agents may exercise all of these procedures (by way of comparison, there were only 15 States in this situation in 2014). The diversity of the procedures concerned makes it possible to adapt enforcement to the composition of the debtor's assets. This contributes to increasing the efficiency of enforcement and serves the interests of the creditor, while allowing the legitimate interests of the debtor to be better taken into account.

Table 1.9: Other activities carried by enforcement agents in 2018 (Q. 171-3)

In addition to the function of enforcing court decisions, many States entrust enforcement agents with the task of serving judicial or extrajudicial documents (35 States) as well as a range of so-called " accessory"[13] activities compatible with their main functions. In addition to the seizure of property (35 States), the following activities can be carried out: debt recovery(27 States), performing tasks assigned by the judge (26 States), public auctions of movable and immovable property (25 States), recording and reporting of evidence (21 States), court hearings service (15 States), provision of legal advice (11 States), bankruptcy procedures (10 States), drafting of private deeds (6 States), representation of parties before the courts (5 States), management of real estate (4 States) and "other" functions (18 States). Compared to the data collected in 2014, the classification of accessory activities, with regard to the number of States conferring them on enforcement agents, has not changed.

                                                                                                                                                                                         

To varying degrees, depending on the state, we observe therefore a degree of multidisciplinary among enforcement agents.

1.3          Effectiveness of enforcement actions

The effectiveness of the enforcement measures is evaluated in terms of the system for monitoring enforcement, time and cost of enforcement.

Enforcement monitoring system

In 2018, 36 States or entities (32 in 2014) have a system in place to monitor procedures (Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, Finland, France, Germany, Hungary, Iceland, Latvia, Lithuania, Luxembourg, Northern Ireland (UK), Moldova, Monaco, Montenegro, Norway, Spain, Northern Macedonia and the United Kingdom (UK)), Poland, Portugal, Czech Republic, Russian Federation, Serbia, Slovakia, Slovenia, Sweden, Switzerland, Turkey, Ukraine), while more than half of them have a system for monitoring specific cases of enforcement of decisions against public authorities (most states have a statistics or inspection system - see above).

Table 1.5: Supervision and monitoring of enforcement agents in 2018 (Q. 177, Q. 178, Q. 182)

Table 1.10: Execution of court decisions rendered against public authorities in 2018 (Q. 181, Q. 184)

Indeed, 19 states (compared to 17 in 2014) have a specific mechanism for enforcing court decisions against public authorities. The analysis of the correlation between such a mechanism and the enforcement monitoring system allows different conclusions to be drawn.

In 2018, 9 states or entities (compared with 13 in 2012 and 10 in 2014) have neither a specific mechanism for enforcing court decisions against public authorities nor a system for monitoring enforcement (Albania, Denmark, Estonia, Greece, Ireland, Italy, Malta, Netherlands, Scotland (UK)). This figure is constantly decreasing.

Conversely, 17 States have a specific mechanism for the enforcement of court decisions against public authorities and a system for monitoring enforcement (Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, France, Germany, England and Wales (UK), Moldova, Poland, Portugal, Russian Federation, Serbia, Slovakia, Spain, Ukraine). The number of States concerned has increased compared to previous years (13 States in 2012 and 2014).

Furthermore, 18 states (compared to 20 in 2012 and 19 in 2014) do not have a specific mechanism for the enforcement of court decisions against public authorities, but benefit from an enforcement monitoring system (Andorra, Armenia, Azerbaijan, Cyprus, Czech Republic, Finland, Hungary, Iceland, Latvia, Lithuania, Luxembourg, Monaco, Northern Macedonia, Montenegro, Norway, Slovenia, Sweden, Turkey).

In addition, 2 states - compared to 4 in 2014 - have a specific mechanism for enforcing court decisions against public authorities, but do not have an enforcement monitoring system (Georgia and Romania).

Finally, 24 states are planning to adopt concrete measures to change their legislation, particularly with regard to decisions against public authorities. By way of comparison, there were 20 in the data collected for the period 2012-2014. However, we note that 15 of the 20 states which planned in 2014 to adopt these measures to change their legislation, still claim to plan such reforms in 2018 (Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, Germany, Greece, Latvia, Republic of Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Ukraine, UK-Scotland).

Enforcement delay

It is difficult to predict how long it will take to enforce a court decision, because in many jurisdictions enforcement depends not only on the diligence of the creditor but also on the creditworthiness of the debtor. However, the time limit for notification, which also depends on its procedural form, may be reduced in a concrete manner either by the action of an enforcement officer or by the simplified form of a letter with acknowledgement of receipt. Thus, the time limit depends either on the diligence of the enforcement agent or on the good or bad functioning of the postal services. Each country, in such a situation, evaluates an average delay as an indicator of efficiency, because it is in the interest of the credibility of the justice system, that the litigant who has obtained a court decision can have it notified and enforced as soon as possible.

Table 1.11: Length of enforcement procedures in 2018 (Q. 185, Q. 186)

In civil matters, systems for measuring the duration of enforcement proceedings exist in a majority of states (27 states, compared to 20 states where such systems are lacking). The proportions are reversed with regards to the existence of such systems in administrative matters (22 states, compared to 25 where they are not provided for). While in 22 States (compared to 18 in 2014) the duration of enforcement proceedings can be measured in both areas, in 20 States no system has been put in place.

With regard to the time limit for notifying a court decision, concerning the recovery of a claim to a person domiciled in the city where the court is located, out of the 28 States or entities that provided information, 27 stated that it is possible to complete the notification, on the person concerned within a period of between 1 and 10 days. Only one state (England and Wales (UK)) indicated that it took more than 30 days to notify the person concerned of the decision (compared to 2 states in 2014). Compared to the year 2014, five States have reduced these delays (Spain, Greece, Romania, Serbia, Slovenia) and five States reported that these delays have increased: England and Wales (UK), Bosnia and Herzegovina, Croatia, Latvia, Moldova. It should be noted that some States (Bosnia and Herzegovina, Croatia, Greece, Latvia, Moldova, Portugal, Serbia) reported delays of "6 to 10 days" and "11 to 30 days". This can perhaps be explained by differences according to the type of cases concerned or the area in which the decision was rendered.

Cost of enforcement

Table 1.12: Fees of enforcement agents in 2018 (Q. 174, Q. 175, Q. 176)

In civil and commercial matters, it is generally up to the creditor to evaluate the appropriateness of enforcing the decision, in particular with regard to the cost of enforcement. None of the 47 States replied that for the litigant it is not easy to estimate the fees of the enforcement agent. By way of comparison, three countries were in this situation in 2012 (Andorra, Bosnia-Herzegovina and Montenegro) and one in 2014 (Andorra).

The cost of enforcement consists of the costs of enforcement stricto sensu (costs relating to the procedural act) and the fees of the enforcement agent, linked if necessary, to the result obtained. States were invited, in questions 174 and 175, to indicate whether the fees are regulated by law or freely negotiated between the enforcement agent and the creditor. In almost all States (46 out of 47), the cost of the procedure is strictly regulated by the State. Only France and the Netherlands reported that fees are freely negotiated. In the case of the Netherlands, even in these circumstances, it is in fact an intermediate situation: the costs of enforcement are mainly regulated by law, although they may also be negotiated. This is important because, whether in private or mixed systems, enforcement agents are paid partly or wholly by the enforcement costs or by bonuses resulting from them. It should also be stressed that fees should be freely negotiated only for the creditor. The debtor's costs should be determined by law.

Regulation of the cost of the procedure by the State makes it possible to control the cost of the act, but not to verify its appropriateness. Consequently, it often makes it possible for the litigant to file a complaint against the enforcement agent and/or, the option for the judge to decide on the payment, by the enforcement agent, of unjustified costs (re-imbursement).

2.            Enforcement of court decisions in criminal matters

The CEPEJ has deliberately omitted to include the penitentiary system in its evaluation of the judicial system, as this is the responsibility of other bodies of the Council of Europe (and in particular the European Committee for the Prevention of Torture - CPT, the Council for Penological Cooperation - PC-CP[14]). This is why this chapter is limited to minimal data, directly related to the functioning of the courts.

Table 2.1: Execution of decisions in criminal matters in 2018 (Q. 189, Q. 190, Q. 191)

In almost all states, enforcement of criminal decisions is the responsibility of a public body. There is, however, a great disparity, not only between the competent bodies, but also in the rate of recovery of the fines imposed.

Authorities responsible for the enforcement of criminal decisions

Enforcement is performed in 26 states or entities by a judge, specifically responsible for the enforcement in criminal matters. In addition to the judge, other authorities may intervene: the public prosecutor (Albania, Belgium, France, Germany, Greece, Iceland, Italy, Luxembourg, Monaco, Serbia, Scotland (UK) and Turkey), the prison administration (36 States or entities) or other authorities (e.g. the police, a specialized entity of the Ministry of Justice or, exceptionally, a judicial officer): Azerbaijan, Belgium, Cyprus, Estonia, Iceland, Ireland, Latvia, Northern Macedonia, Malta, Moldova, Monaco, Norway, Poland, Russian Federation, Serbia, Slovenia, Spain, Sweden, Switzerland, Ukraine, Northern Ireland (UK), Scotland (UK).

Rate of recovery of fines imposed by a criminal court evaluated by studies

It should be noted that during the last period, only 13 states and entities conducted studies on the effective recovery rate of fines imposed by a criminal court: Belgium, Estonia, Finland, France, Iceland, Ireland, Latvia, Poland, the Russian Federation, Sweden, England and Wales (UK), Northern Ireland (UK) and Scotland (UK). Most of the time, these studies are carried out annually. Scotland (UK) reported a recovery rate of 80% to 100% (very high) for fines imposed by the criminal courts. In Estonia, Finland, France, Ireland, Latvia, Poland, Russia, Sweden, England and Wales (UK) and Northern Ireland (UK), the recovery rate in 2018 was 50% to 79% (moderate). In addition, 2 states (Belgium and Iceland) reported a rate below 50%, whereas in 2014, there were 4 states in this situation (Albania, Latvia, Poland, Russian Federation) and in 2012 no state reported such a rate.

3.            Trends and Conclusions

The organisation of the profession, the efficiency of enforcement services and the effectiveness of enforcement measures contribute to the efficient enforcement of court decisions, which, in the light of Article 6 of the European Convention on Human Rights, may constitute a relevant indicator of the good administration of justice.

Over the period 2012-2018, the overall trend in the overall number of responsible agents is downward, now reaching an average of 5.8 agents per 100,000 inhabitants.

Moreover, enforcement agents have a very different status depending on the member states of the Council of Europe. In some cases, judges are involved in the enforcement procedure, but most often their role is limited to the supervision of the enforcement procedure. However, a clear trend has been noticeable since 2006: the proportion of States using public agents is decreasing, while the proportion of States, instituting only private agents or providing at least a mix of statuses is steadily increasing.

Moreover, in Europe, the variation between 2008 and 2018 clearly shows that the trend is towards the adoption of quality standards in Council of Europe member states, regardless of the status of enforcement agents (private or public status). A similar trend can be observed not only with regard to the provision of a system for supervision and controlling the activities of these professionals, but also with regard to the development of a system for monitoring enforcement.

Similarly, it is essential that enforcement agents receive appropriate and rigorous training. In this regard, it is noteworthy that the proportion of countries, where specific initial training exists (as opposed to continuous training for agents already in practice), has been growing steadily since 2008. Entrance exams and initial training are becoming true European standards in the field of enforcement. Without reaching the same proportions, the provision of mandatory continuing training is also progressing steadily and now includes 57% of the States.

It should be underlined as a necessity to offer enforcement agents an adequate qualification enabling them to carry out the enforcement procedure in an efficient and reasoned manner, respecting fundamental rights and individual freedoms. This initial and continuous training is all the more necessary since, in many States, enforcement agents carry out several " accessory " activities in addition to their two main activities, namely the enforcement of court decisions and the service of judicial or extrajudicial documents. Thus, the multidisciplinary nature of these professionals is tending to become a European norm. In the same way, there is a clear evolution towards a centralisation of the function of enforcement of court decisions. From now on, in a majority of States, enforcement agents are competent to exercise all civil enforcement procedures governed by national laws[15].

Finally, it is logical that the control of such activities is not only concerned with compliance with the law, but also with the appropriateness of the actions taken by the enforcement agent. To this end, the Guidelines on enforcement adopted by the CEPEJ are unanimously recognized as a reference among European practitioners[16].

In sum, it results from the data collected during the last exercise and compared with those recorded during the previous exercises, that there is an increased respect, in the national laws of the Member States, of the principles consecrated in the Guidelines on enforcement adopted by the CEPEJ in 2009.