Courts; as one and perhaps as the most tasks of their purposes and responsibilities, engage in rendering a fair and equitable decision among parties in law suit. Decisions of a court can either be criminal or civil nature. If the case brought before the court involves criminal nature, the court will give decision by adhering to the rules and procedure provided under criminal law and criminal procedure respectively. Police or prison administration is an organ entrusted with enforcing court’s decision.
However, if the case brought before courts is a civil nature, the court will give decision according to civil law and civil procedure. Courts, Execution office, bailiffs, sheriffs, and judicial officials are among organs entrusted with enforcement of civil court judgments under different countries. Nowdays, enforcement of a court decision is considered as an issue of central significance. The main concern of this article is, therefore, to show the existing enforcement system under different system with their respective merits and demerits and the way arranged under Ethiopia.
In doing so, this article first explores a general background with introductory remarks. Then, the general enforcement system employed under different system and enforcement agents are discussed in the preceding sections. The writer then tries to find out whether the existing laws of Ethiopia are being rendered effectively to the general accepted principle or not.
The proper and rapid enforcement of a court decision, as well as other decisions that are considered to be directly enforceable in any national judicial system, is to day accepted as an issue of central significance. There is also a new growing approach that requires countries not only on international and regional human right treaty obligations but also under their constitutions to enforce court judgment fairly, effectively and efficiently as well to support the independence of the judiciary.
The enforcement of civil judgment against parities in commercial transaction; through the process known as execution, has recently been acknowledged as essential underpinning of rule of law, to sustainable economic development, democratic governance, and included in numerous national and international Acts for the reason to provide citizens with efficient protection of their rights within reasonable time.
DEFINITION OF ENFORCEMENT
The term ‘enforcement’ may be defined as:
Carrying in to effect of judicial decision, as well as other judicial and 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.
The above paragraph defines enforcement in a comprehensive way, including both enforcement of court decisions as a core of enforcement action and enforcement of other enforceable titles of judicial and non-judicial nature. There are cases of which the settlement is done outside the courtroom like that of arbitral awards. When such decision is legally recognized it should be enforceable as that of court decision.
The definition of enforceable titles differs from one country to another, enforceable titles; in the sense of this definition, would cover only the action that are carried out in observance with the law.
Where a creditor has obtained a judgment against a judgment debtor but fails to satisfy that judgment, the judgment creditor has to take steps to enforce it. Note that parties to enforcement proceedings are defined procedurally as ‘judgment creditor’; a person who is awarded a judgment by the court which must be collected (simply party seeking enforcement), and a ‘judgment debtor’; a person against whom judgment was entered and from whom the debt is to be collected (simply party against whom enforcement is sought). Despite the fact that a judgment has been awarded on ones favor, does not mean that there is automatic enforcement, no enforcement proceeding will take place unless the judgment creditor applies to the court which passed the decree to enforce it. This enforcement proceeding are commonly known as ‘execution of decree’ in civil and commercial transactions.
Execution can be defined as:
Judicial writ issuing from the court where the judgment rendered, directed to an officer thereof, and running against the body or goods of a party by which a judgment of a court is enforced.
A judicial writ in the above definition is an authorization to an executive officer, issued from a court in which a final judgment has been rendered, for purpose of carrying such judgment in to force and effect.
For our purpose, for obtaining the wordings of the different definitions stated above and taking hold of the message they convey, we may define the word ‘enforcement’ or ‘execution’ as a proceeding to enforce or put in to effect final judgments of a court. Hence, in this article, take a notice that the word ‘execution’ and ‘enforcement’ is used interchangeably.
Execution is not necessarily an indispensable part of judicial proceeding. I.e. if the judgment debtor satisfies the judgment voluntarily, no need of execution proceeding. However, judgment debtors are unwilling to pay voluntarily. The judgment creditor in this situation will initiate execution proceedings in order to collect the fruits of his victory.
TRADITIONAL APPROACH OF ENFORCEMENT
The traditional approach to enforcement of a court decisions against parties in commercial transaction was, until recently, almost exclusively, court oriented and adjudication oriented. In other words, the concern of all organs dealing with the ideas of just and efficient judicial system is only closing of cases and end of litigations within short period of time. It is sometimes known as the process of adjudication in which the existence of a rights and obligations of the parities was determined in the court proceedings which starts from initiation of files and ends with a final and binding judgment. what happened before, and what will happen after, was regularly left outside the range of legal discussion in the traditional approach. In this approach, the guarantee to fair trial would end there where enforcement would typically only starts. After the content of rights and obligations has been determined, and the dispute finally ended, the concept of ‘fair trial’ would cease to be applicable. Consequently, there is a classical or narrow understanding of the right to fair trial.
However, despite the fact that a judgment has been awarded in ones favor fairly and in just manner, does not mean that there is automatic enforcement; it is only the first step of a very long process to collect an award. In this approach, court decisions encounters inefficiencies in their implementation due to excessive delays of enforcement and less concern for enforcement process.
Modern approach of Enforcement
Because the traditional approach view encounter inefficiencies in the implementation of a court decision through excessive delays, developed countries; especially those of Europeans - have effectively realized that enforcement makes out one of the crucial parts of the legal process and come up with a new understanding of right to fair trial in respect to enforcement. The new approach emerges to the issue of efficiency within the system of justice exceeding the narrow borders of the courtroom.
It is not over when it is over, it is over when it has been put in to life - this could be one of the slogans to the new approach, that starts from the assumption that the legal process does not end with pronouncing a final and a just decision, but when such decision is, in fact, implemented.
This approach begins with the assumption that the legal process does not end with a final and just decision, but when such decision is in fact implemented. In the new enforcement approach, the old Latin sayings Ubi Ius, Ibi Remedium - there is no right without an effective remedy - holds a center role and a refresh meaning because:
…a lack of proper enforcement leads to a situation in which, no matter how firmly declared by law and strongly uttered by courts, civil rights and obligation are in practice, rendered inoperative and illusory.
JUDGMENT VERSUS ENFORCEMENT
After a court frames issues of contention between parties in a lawsuit and made extensive examination of witness and documents thereof, decision will be granted to the successful litigant based on sufficient reasoning. The adjudication of the rights of parties and determination of their respective duties as well as awarding of relief are expressed through the formal document issuing from the court known as judgment.
When a judgment has been passed and entered and recorded, it binds the parties, the controversy comes to an end and the person in whose favor the judgment is entered is entitled to enforce it by the appropriate method of ‘enforcement’. Judgment should be reduced to a decree. Decree is an operative part of a judgment and will content particulars necessary for the successful enforcement of a court judgment.
However, since a judgment is a prerequisite to the validity of enforcement, a judgment should be final and valid in order to give effect or be executed. Otherwise, if the judgment is not final or void for any reason, it may not be executed.
As long as there is valid and final judgment there is enforcement. However, it would be remarkable to note that, not all judicial decision or judgment could be subject to enforcement. Some of them may be self-enforceable or known as self-executing judgment. This kind of judgment may give effect by the mere fact that they are decided in favor of the judgment creditor without having enforcement proceedings. For example, the decision that by themselves produce legal effect like change in existing relationship as in the case of divorce decision. A successful plaintiff in dissolution of marriage does not need to proceed with execution proceeding to ascertain the status of the marriage. Decision of mere declaratory nature or establishment of existence or non-existence of rights and obligations of parties is an example of decisions that would not require enforcement at all.
As opposed to self-enforceable decision, there are decisions which needs further enforcement proceedings and cannot proceed unless with proper enforcement. Judgment for specific performance, judgment for the payment of money, and judgments for the restoration of property are among judgments that need further enforcement proceedings.
Effects of Enforcement
As we have seen in the above discussion; since enforcement involves the actual satisfaction of a claim, a fair and effective enforcement of a court decision has a vital importance on protection of human rights as in the case of modern approach. In the modern approach, effective enforcement of judgment has even more rationale than protection of human rights. It has a significant role in promoting trade and investment, social stability and administration, rule of law and judicial independence. The Council of Europe stressed,
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.
Citizens alleging that their rights are infringed look forward for states to enforce their rights. They need “justice in action” not “justice in books”. Without the final realization of court judgments and other enforceable documents, citizens may well lose their respect for the system of justice and their confidence in state institutions. Hence, enforcement of judgment has direct and indirect effect on the social, economical and the political conditions of the modern world.
Understanding the above imperative role of enforcement of court decision, countries come up with different enforcement system with different enforcement agents to protect the fundamental rights of their citizens and to enhance their economy. Let us discuss each type of enforcement systems and enforcement agents but first let us define Enforcement Agents.
DEFINITION OF ENFORCEMENT AGENTS
Countries under different categories employed ‘enforcement agents’ with different ‘enforcement system’ in order for effective and efficient protection of citizens right to fair trial. It is very difficult to define enforcement agents on common basis, as there are different names and categories under different legal systems. They are given different names and definitions under different process of enforcement such as enforcement judges, sheriffs, court executors, bailiffs, court or judicial officers.
For the purpose of this article, in order to hold all kinds of definition used in practice to a single unbiased term we may define enforcement agents as “all those persons responsible for carrying out the enforcement process.” The Council of Europe defines Enforcement agents as:
A person authorized by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not.
The term “…authorized to carry out enforcement”; as stated in the above definition, would include all the above range of persons responsible for carrying out the enforcement process. These enforcement agents have various status and organization under different jurisdiction. They range from low-level work strength to top professionals, from weakly trained supporting workers to excellent experts of highest educational and specialized order. These enforcement organs are ranked either as civil servants subordinate to the ministry of justice, judicial officers subordinate to the courts, self-employed persons acting independently or are employed in a combination of both as a matter of system of enforcement.
However; no matter what position is chosen or no matter which kind of enforcement agents are engaged under different system, there are criteria that should be fulfilled. First and foremost, the role, responsibilities and powers of enforcement agents should be specifically and correctly determined by law. Particularly, in order for certainty and accuracy, the power and responsibilities of enforcement agents (whatever type: either as civil servants subordinate to the ministry of justice, judicial officers subordinate to the courts, self-employed persons acting independently or are employed a combination of both) should be clearly defined and distinguished from the other organs of the justice system.
Principles related to enforcement agents elucidate that; it is undisputable that enforcement agent activities have to be monitored and controlled. There could be a range of violations in enforcement process. For example, there could be violation of rights and interests of judgment creditors, judgment debtors, third parties, or of the public as a whole. Furthermore, there could be instances of misuse of the authorities given to enforcement agents and the considerable danger of corruption. Thus, there should be adequate mechanism to confront the indecent acts of agents and be liable to disciplinary, civil or criminal proceedings if they abuse their position. There should be also an organ with a controlling power, which reviews regularly the enforcement process, punishing and preventing the abuses of enforcement agents’ position.
There should be not only clear and well-defined rules with procedures but also precise plus accountable roles and responsibilities of enforcement agents and enforceable Codes of Ethics, are essential for the proper functioning and transparency of the enforcement process. In theoretical foundation these agents should be professionals of high ethical standard and have a legal understanding and training in relevant laws in general and civil procedures in particular. The council of Europe provides regarding this issue:
Enforcement agents should be honorable and competent in the performance of their duties, and should act, at all times, according to recognized high professional and ethical standard.
Principles related to enforcement agents goes on to say that, no matter what position is chosen (whether court or multiple institution controlled, whether enforcement service is conducted by Executive branch or by institution of bailiffs which we are going to discuss in the next topic) enforcement agents should have proper working conditions, sufficient physical resources and supporting staff to conduct enforcement service. In particular, enforcement agents must not lack resources for activities required for judgments enforcement such as Premises, Vehicles, telephones, computers, the movement and storage of seized goods, as well as arranging the sale of those goods. States should ensure that there is adequate financing of their enforcement services i.e. enforcement agents should be adequately remunerated through a system of tariffs and fees. Adequate remuneration minimizes the risk of inefficiencies, low quality of work and corruption.
Most countries ensure enforcement of judgment in civil and commercial matters through different enforcement agents, meaning employing either of those persons responsible for carrying out the enforcement process (e.g. bailiff, enforcement judges, sheriffs, court executors and court or judicial officers). Usually the role, organization, status and training of enforcement agents are prescribed in laws and/or regulations in order to bring as much certainty and transparency to the enforcement process as possible. As a complementary measure, enforcement agents should also be bound by ethical and professional standards, well educated as well trained in enforcement practices and procedures. Training of enforcement agents is vital to the overall efficiency and effectiveness of the enforcement service. Now, let us discuss on the types of different enforcement systems.
The four types of enforcement system presented below, are generally followed in almost every country even though the structure of enforcement systems can vary from country to country. No general consensus is there on which types of enforcement systems is preferable than others. However, even enforcement system appears in a great variety of differing features, they may be examined according to their prevailing characteristics.
While the issue of effectiveness and efficiency in enforcement remains extremely dependent on the context in which it is implemented and measured, there is growing evidence that some models operate more efficiently and effectively than others. In this section, I want to show the four global models of enforcement with their respective merits and demerits.
Concerning to responsibilities and controls over the enforcement process, there may be four types of enforcement systems.
A) Court-controlled enforcement systems
B) Multiple-institution-controlled enforcement
C) System of enforcement by the executive branch of government
D) Private or quasi-private bailiffs enforcement
A. Court-controlled enforcement systems:
Court controlled enforcement system (sometimes known as judge-controlled) is the oldest system of enforcement. In this type of enforcement system the primary decision-making and the principal responsibility of enforcement is given to judges. Normally, with different status, these judges are regarded as any other litigation judges. As a matter of common knowledge, the fundamental tasks of a judge is adjudicating cases brought before the court of law. They are expected to decide a large number of cases and there is a high workload at deciding issues of fact and law. In this system, in addition to adjudication of cases, judges have administrative burden on supervision court executors and enforcement proceedings. I.e. sometimes they involve in enforcement cases discharge a part of their judicial tasks in litigation and sometimes they are concentrated and limit their entire activities to enforcement cases. Under this system, the enforcement of judgments involves deep participation and decision making by judges. Every action is court managed; even court-performed. That means fundamental decisions and steps in execution proceedings are still made by the judges or require the approval of the court. For example, only a court may issue authorizations for execution and decide the suspension and termination of execution proceedings. Such enforcement judges are therefore a combination of roles and functions. On the one hand; they are a member of the judicial branch of government by way of qualified and experienced judges. They are protected and enjoyed the status accorded to the judiciary. They are, among others, protected by the principles of in dependency and impartiality. On the other hand, strictly speaking the character of their activity is not a judicial one since it does not relate to determination of cases- i.e. resolution of disputed issues of facts and law.
This model originated in Spain in which enforcement measures and decisions require an application to a court and an order issued by judge, with the implementation of enforcement measures undertaken by court officers or lower level enforcement agents. Court officials in this context are assistance of enforcement judges that fulfill some important or technical tasks in the enforcement process. These officials may include usually less educated technical staff known as court executors that have very limited powers and authorities. Court executors participates in the process but they mainly carry out minor administrative and technical tasks and do not have a power to drive the process.
Usually in court-controlled enforcement system, judges and court executors are regulated by the code of civil procedure. The code of civil procedure sets out and lists a number of possible methods of execution on how to commence enforcement proceedings against judgment debtor.
There are countries that employ court-controlled enforcement system. However, the outcome is not the same in different countries while sticking on the same system. For example, Argentina, Mexico and Peru follow the court-controlled model and judges largely control and drive the enforcement process. Judgment creditors in these countries are largely at the mercy of the judge’s schedule, and their choices and desires are subject to wide judicial review at each step of the enforcement process. Though there are court officials participation on the process, there role is limited to small administrative undertaking. Enforcement system in all these countries is perceived very slow and inefficient. However, there are countries with relative a better and effective enforcement while adhering the same court-controlled model. These countries appear to have converted their systems more by giving the main power of enforcement to the court execution officer rather than to judges. Countries like Poland, Denmark, and Slovak Republic are the prominent ones. For example, the main authority to execution proceeding; in Denmark, is given to the enforcement court and agents, which are very specialized. The culture of paying debts are high and failure to comply with enforcement will have severe consequences than the effectiveness of the enforcement system itself and hence Denmark seems to be an exception, which appears to be efficient and effective.
B. Multiple-institution controlled enforcement
All court decisions and arbitral awards in civil and commercial matters; in this system of enforcement, is enforced by several actors. As the name indicates there is no one single organ, which exclusively bears the responsibility for enforcement. The responsibility is delegated among several actors without granting the primary responsibility and control to any one in particular.
These several actors stick on the principles and procedures of their establishing legislation. The establishing legislation such as civil procedure code, Execution code, and Bailiffs’ law provides the rules and procedures governing enforcement process. Judgment creditors and their lawyers are at liberty in deciding which enforcement method to pursue. Depending on the complexity of the proceeding and the costs involved, the creditor and his/her lawyer can choose whether to follow the enforcement procedure established by civil procedure code or the enforcement procedure established by other establishing legislation.
Depending on what the judgment creditor is seeking to enforce or what measures he or she is seeking the judgment creditor will decide which enforcement to follow and the decisions will be directed towards different agents. Then, this different agent will commence execution according to the procedure established by their establishing legislation. The role and responsibilities of a judge remain important for enforcement.
C. System of enforcement by the executive branch of government
In this type of enforcement system, the dominant and primary responsibility for enforcement process relies on one or more executive bodies. Taxes or other debts payable to the states or administrative authorities of public debts and claim are gathered by specialized civil servants who are responsible in many countries. However, it is uncommon to see such a specialist public sector enforcement system engaging for the enforcement of private law debts, judgments and executive titles. But in many countries; especially in Eastern Europe, under the control of the executive branch enforcement power is given for such specialist for the collection of both public and private law debts.
Those who perform the enforcement process at operational level and the main body that supervises the whole process is; therefore, a state Ministry. Ministry of justice, Ministry of Finance, Ministry of Police are among the state ministers which involve in the enforcement proceedings. Mostly, with or without a category of a separate legal person, enforcement service would form a part of the organizational structure; i.e. the structure of enforcement service would be as a department or institute in the ministry. For example: department of enforcement service or enforcement system department. Enforcement agents; in such a system, are state officials with independent status in their professional activities. They receive a fixed salary and are responsible for their professional activities both disciplinary and/or monetarily.
D. System of enforcement by Bailiffs
There is a general trend in European countries towards the liberal profession and strong custom of non-judicial enforcement. Still there are countries, which purely opt for private enforcement system with agents usually called Bailiffs. The term bailiff may have different meaning under different jurisdiction. But for the purpose of this article the term bailiff is:
A member of a liberal profession that is authorized by law to perform some or all of the service directly linked to the process of enforcement of court decisions and, where applicable, other legal acts that fulfill conditions for direct enforcement titles.
In this system, the main responsibility of enforcement process relies on bailiffs that have a direct monetary concern on the fruits of enforcement process. Subject to some kind of control by the state; usually by the office that have granted them to act as enforcement agent, bailiffs function with independent and self-directed status as private entrepreneurs. The office that have the power to grant (usually Ministry of Justice) issues regulation in order to control the activities of bailiffs. Though the degree of regulation various from country to country it usually address issues such as: obligation of bailiffs both public and professional duties, organization of enforcement agencies, entry to the profession and authorized enforcement acts and fees. A person or group of persons; therefore, should fulfill the above and other requirements to become bailiffs. Among other requirements, there are a high prerequisite on legal and professional education and skills of potential bailiffs. Applicants usually go through a competitive process of selection. For instance in Estonia, a person or group of persons must have a degree in law and have passed the special bailiffs exam in order to become a licensed bailiffs. Once they become as bailiff, they act in their own name and are responsible for their own actions. They can be held liable to wrongful non-performance or inappropriate performance, as well as for any impolite act that undermines the reputation of the bailiffs’ profession.
Bailiffs as illustrated operate as private entrepreneurs. Since they have a direct financial interest in the success of enforcement process, they; as private professionals, can work more or less in a business-like fashion. The balance between the legal and profit-making part of their dealings may differ from country to country. In countries where they are considered as liberal professionals, they are overseen by qualified experts of professional organizations and public authorities and have stringent public and professional duties due to the fact that they are considered as officer of the court. However, in countries where they are regarded as pure private businessman they are controlled not as much of as liberal professionals and are more dependent on market progresses. In these countries the execution of court decisions is viewed as a marketplace on which enforcement service are put up for sale.
Advantages and disadvantages on the above types of enforcement system and which type of enforcement becomes effective will be the next concern to discuss.
Advantage and disadvantages of Enforcement systems
Court-Controlled Enforcement System
As explained before, in this system of enforcement, judges are the predominant actors in enforcing the decision of the court. As judges they are skilled and qualified and benefit from social privileges and they are protected by assurances of independence and impartiality. The executive branch of the government has a little room for interference in the enforcement proceeding because of the fact that there is the principle of separation of power. Those that ultimately give the decision based on the evidence brought before the courtroom are judges and also those who are responsible for its implementation (enforcement) are judges. Therefore, the court system of enforcement could afford a high-quality decision-making and the same persons that have made the decision are responsible for its implementation. Thereby, similar standards and principles apply to the adjudication and enforcement of decisions. Since judges tend to be aware of the procedural steps and socially sensitive there is a high level of debtor protection in court controlled enforcement system.
Comparative research shows that pure court or judge-controlled enforcement does not have a good track of record for efficiency. As illustrated above, judges have both roles and functions in this system of enforcement. On the one hand they are concentrated in determination of cases. I.e. judges are expected to decide a large number of cases. There is a high workload on deciding issues of fact and law. On the other hand; on addition to adjudication of cases, they have administrative burden on supervision of court executors and enforcement proceedings, which is different compared to adjudication. Enforcement needs different skills usually technical and below the level of what is perceived as typical judicial tasks. As a result, in this system of enforcement, judges did not manifest much enthusiasm for the task of supervising a staff of court executors and execution process. Thus, they are unwilling to bear those responsibilities to engage in routine administrative activities.
The other disadvantage of this system is that, the same judge that has granted the final judgment is responsible for its implementation. Though it has advantage of applying the same standard by judges, the volume of work may devastate these judges. Even on applying the same standard, judges tend to stress on the formality of the process, and not its efficiency. Therefore, there is always an implicit risk that enforcement will be carry out in a slow pace, sometimes with rigid routine and redundant formalities.
If the number of cases has increased in important extent it is not quite possible to employ or discharge a large number of enforcement judges. Thus, it is very difficult to change this system to changed circumstances. As a result, this could have a negative impact on the success of the enforcement process in wide-ranging. In general; in this system the results in terms of enforced judges were widely perceived as unsatisfactory. This system is inadequate for a number of reasons.
Multiple-institution controlled enforcement
Unlike the court system, this system offers a variety of services to judgment creditors. This could be one of the advantages of this system. Judgment creditors are at liberty to choice which enforcement method to pursue. The system engages the participation of private parties in different phases of enforcement process and has a high class of professional quality. Final and enforceable court decisions are enforced according to the nature of the case and the cost involved. If the cost is high the enforcement process will be sent towards to the professionals of high standard. The establishment of different system of enforcement entails choices about the design of institutions through which legislative and regulatory commands will be enforced. Equally significant is the possible expansion of private participation in effective enforcement process. On the other hand, this system will need a high trained and qualified enforcement agent of skilled manpower and it is very expensive for the state in providing different legislative acts for variety of enforcement agents.
System of enforcement by the executive branch of government
Unlike the court system, the executive system of enforcement can proceed in a much faster fashion. This enforcement system could be less formal and more flexible than in the case of court systems since the executive branch is the oriented towards results. Such a system is typically also less expensive, at least because the officers in the executive branch tend to obtain lesser payment than judges. It is simple to assign officials to new tasks, or shift them to new areas if the amount of enforcement work varies; as a result, the flexibility of this system is greater.
On the other hand, since enforcement agents in this system tend to be underpaid and overworked they do not have the benefit of high status, training and position as judges. If such enforcement agents are not adequately paid, the risk of corruption in the process is also high. All these attributes may direct to a lack of quality of enforcement work. In this system “Executive officials are also subject to hierarchical subordination, and must obey instructions of superior bodies, up to the government bodies of the highest level.” if there are an instruction of superior bodies I.e. other officials in the executive branch and government itself (there may be a situation on which state agencies and officials could be a party in enforcement process), this creates a possibility of interventions in the enforcement process.
System of enforcement by Bailiffs
As discussed above, private bailiffs as a member of liberal professionals also have its typical merits and demerits. As stated above becoming a bailiff needs a number of requirements. One of which is special training and knowledge of law in general and civil procedure in particular. With this special training and skill, private bailiffs are interested both financially and personally in efficient performance. Thus, there is more rapid and efficient enforcement than the other systems of enforcement. If the requirement of legal knowledge and training is high, and if specialist courses of continuing training and education are available, they may even provide higher professional quality than others. As private bailiffs they themselves cover the necessary resources for the proper functioning of their work. Hence, in this system of enforcement there is an advantage of cost of the state. This private model does not burden the state budget that would have to pay from public funds. Rather this system; on the contrary, brings indirect revenue to states from taxes and employment in private sectors.
As regard the disadvantages of this model, though it is advantageous for the state not to invest costs for the necessary resources, it may have indirect demerits for the judgment creditors. Since the costs for enforcement are not subsidized by the state, enforcement process may be less inexpensive for judgment creditor and this could raise the price of enforcement. The danger of raise in price of enforcement may be worse if the pricing policy is not controlled and held within limit in the establishing legislation. In particular, if the price of enforcement is not affordable and the price is not reasonable, citizens’ right to access to justice is affected. It is difficult also for the state to allow private sector in enforcement process “when state grants concessions to the private sector to engage in enforcement, this is a process that can only be reversed with great difficulties” Moreover, in the phase of selection there may be political intervention and there would be a fear of corruption and political intervention in private bailiff enforcement system.
ENFORCEMENT SYSTEM UNDER ETHIOPIA
Having seen these all about enforcement, we will now consider the Ethiopian way of executing civil proceedings provided under the 1965 of civil procedure code and the system of enforcement employed.
Enforcement system employed under Ethiopia
Enforcement of a court decision for the purpose of securing judgment creditors claim is know in the Ethiopian legal system prior to the enactment of the 1965 civil procedure code. To justify this proposition, other regulations need to be examined. In this regard, Legal Notice 33/1943, 176/1953, 197/1955 are Rules that somehow governs execution before the coming to existence of the civil procedure code.
The establishments of modern courts in Ethiopia were took place in 1933 by proclamation No. 2/1933. This proclamation provides and establishes four level of court structure according to the then existing system of government. Accordingly the proclamation provides Imperial Chilot, High court, Woreda Guezat Courts and Awraja Guezat courts. Besides, the proclamation provides the procedure on how judges are appointed and removed including with powers of enacting procedural laws. The proclamation vested powers of enacting procedural rules to the president of Imperial Chilot and High Court and rules on procedure are enacted in this regard. Legal Notice No. 33/1935 endorses the first procedure in 1935 for functioning of High and Awradja Guezat courts. This rule consists of both civil and criminal procedure with 99 Articles.
Following Legal Notice 33/1935, Legal Notice No. 155/1943 is the second civil procedure rules provided by the Imperial Chilot. It consists 45 Articles out of which 36 are civil procedure and both Legal Notice 33/1935 and 155/1943 bases the Indian procedural rules.
With regard to execution, they provided and vested power of execution to the court which passed the decree or to the court to which it is sent for execution while any judge, officer of any court or any other person appointed by the ministry of justice to execute judgments are regarded as an execution officer. They provide meanings as to what is court, judgment, judgment creditor and debtor, judgment debt and execution officer means.
Besides the above two, there are a number of procedures until the enactment of the 1965 civil procedure code. The civil procedure code; then, promulgated as proclamation No. 52/1965 based on highly on the Indian legal system. Accordingly, Ethiopian Civil Procedure code is said to be inline and reflects the trend of the common law approach and bases its origin on the 1908 of Indian Civil Procedure code. At this juncture, therefore, the enactment of Civil Procedure code is a developing trend and a turning point to the Ethiopian legal system. The Civil Procedure code replaces and repeals all rules; whether written or customary, previously in force concerning maters provided for in the code. Furthermore, the power to make regulation concerning any matter is given to Minster of Justice. The Minister of Justice may add to or amend the provision of the code and shall publish in Negarit Gazette.1 From this it would be reasonable to conclude that, the Civil Procedure code is final and binding procedure over the prior legislation and regulations. The code regulates civil court procedure including execution procedures. Exploring in such a way, I will try to examine the relevant articles concerning enforcement agents and the type of enforcement system exist under the 1965 Civil Procedure code.
The provisions relating to enforcement of a court decision are found under Book VI, chapter one under the title of ‘Execution of Decree’ in the code. Articles 371 to 461 sets out principles, procedures and modes of execution.
A close look at these provisions, the bodies responsible to carry out execution proceedings is a court and courts exclusively carry out execution proceedings. In this regard the code provides and vested power of execution to the court, which passed the decree, or to the court to which it is sent for execution.11 As such an enforcement procedure starts with the application; by the decree holder, to the court, which passed the decree on conditions, provided under Article 378 of the code.
Upon receiving the application, the court determines whether there has been compliance with the condition provided under Art 378. If the conditions led down have not been complied with, the court rejects the application or allows the defect to be remedied. Where the application for execution is admitted, a copy is served on the judgment debtor together with a summons requiring him to appear before the court on a day fixed in the summons to show causes why the decree should not be executed. Then the judgment debtor will appear before the court and may make objections to the execution of the decree. The court; then, decides and order the decree to be executed and issues process for such execution not only after hearing of the objection (if any) but also on non-appearance of the judgment debtor.
As the code specifically directs how various kinds of decrees are to be executed, the court will issue process for execution of decree as the nature of the relief granted may require with signature of a judge and a seal of court and delivers to the execution officers (emphasis added). From this, we can understand that, once an application is made, the court has complete control over proceeding i.e. fundamental decisions and steps in execution proceedings are made by the court or require the approval of the court. For example, only a court may issue authorization for execution and decide on the suspension or termination of execution proceedings.
The term ‘execution officer’ is defined as any judge, officer of any court or any other person appointed by the Ministry of justice to execute decrees under the civil procedure code. These officers have been laid down not only under Article 392(3) but also in different section of the civil procedure code. Execution officer which is elucidated under Article 393(1) known as execution officer, execution department, and execution organ are currently established and functions as an officer of execution in Federal courts. The office has important role in rendering technical and financial service to courts. In the beginning the execution office was established by Ministry of Justice. However, latter on after studying the status of the department by a research, it was decided to be responsible for the vise President of supreme Court as a department as any other department in a court.
Presently the office is reassigned to Federal First Instance Court of Lideta named as ‘Federal Courts Execution Department’. The Federal Courts Execution Department being different from the previous is responsible for the President of Federal First Instance Court. The President: actually a judge is a head of execution department and provides rules and guidelines for proper functioning of the office. The president has a full power over enforcement proceedings and the office functions with rules and guidelines provided by the president.
There are also other enforcement agents laid down in civil procedure code other than court and its execution office. Articles 400, 422, 424, 431 and 434 are some examples, which illustrate enforcement agents. The wording of these Articles shows person ordered for execution, judgment creditor, broker and corporations are among enforcement agents employed under Ethiopia. For example, as the code provides, experts with a special knowledge may be appointed and directed (as the case may be) for estimation of property. And where a property to be sold is negotiable instrument or a share in a corporation the court may authorize the sale of such instrument or share through a broker. From this we understand that persons with special knowledge like experts and brokers have a role in execution proceedings. But experts and brokers are not within the Execution office. Police officers and Kebele representatives are also order for the illegal acts of persons in Execution proceeding by courts. At the time of enactment the legislature of civil procedure code, acknowledges and vested power of execution on the above organs. However, although executors are provided by the code executors and execution office are not established by law. There are no organized rules or regulation showing the proper rights and responsibilities of the execution office and even there are no adequate guidelines the powers and duties of executors are unknown.
From this; then it would be remarkable to conclude that Ethiopia follows the old-fashion court-controlled model of enforcement. As explained earlier, under this system judges largely control and drive enforcement process. It is easy for one to notice the activities of judges under current practice it’s too much involvement on execution proceedings not only on controlling key stage of enforcement but also in preparation of rules and guidelines for the proper functioning of the office.
Organizations and human resource of executors under the current practice
Federal Court execution office is an organ entrusted with execution of final Federal court judgments. The rules and procedures regarding execution provided by civil procedure code concerns only the court that executes the decree and not the office. There is also no indication that these rules and procedures provided is for the office. As a result, the order sent for the office by the court like estimation of property, sale of estimated property by auction, order for sale and attachment, order for the payment of money to Judgment creditor, partition of property is done through customary handlings. Hence depending on the nature of the order, the office undertakes its activities according to the order of the court and guidelines provided by the head of the office. Accordingly the office has the following departments:
1. Registrar/Record office
2. Execution office
3. Circuit execution department
4. Auction Department
5. Accountant Department
6. Sale and Attachment Department
7. Engineering Department
8. Department of Store house/custody
With all these activities, judicial practice, and procedural style and in particular the degrees of efficiency of the machinery of execution proceedings are all still very ineffective and disorganized. Although the above departments exist they are not well organized and structured in terms of both human and physical resources that will facilitate the execution proceedings. Even the powers and duties of one department over another are unknown. There are a number of reasons backing up these arguments. However, some of them are listed below.
Drawbacks of execution office
Federal courts Execution office undertakes its activities with a limited resources and lack of manpower. Although the office has a role in rendering technical and financial service to the court: as the practice justifies, it encounters a great difficulties regarding its routine activities.
Albeit the office may suffer from other obvious and measurable disfunctionalities, some of the problems pinpointed below are the most pressing and most obvious ones and needs a great effort, and central position to avoid such problems.
1. Absence of clearly defined purposes and responsibilities of the Execution office
The execution office; as we have seen above is established as a department basis and is not established by law. The judge (the president) being a head for the department provides rules and guidelines for the proper function of the office. The office undertakes its operation by these rules and guidelines endorsed by the president. However, this system of work entirely contravenes the principles of enforcement (execution) proceedings. As shown above, no matter what position is chosen or no matter which kind of enforcement agents are engaged law should specifically and correctly determine the role, responsibilities and powers of executors. However, in Ethiopia despite following the court-controlled model the powers and duties of executors are controlled by judge and not by law. As for the writers view, there is no a single rule or regulation that provides the duties and responsibilities of the office except for those Rules prior to the enactment of civil procedure code. Even if the civil procedure code vested the power of enacting rules to the Ministry of Justice concerning any matter, the minister has not yet come up with a regulation in the context of execution. Besides, as the current practice proves the rules and guidelines provided by the president will change from time to time with a change of judges. Thus, there is no consistency on the performance of the office and this practice is highly exposed to procedural irregularities. No uniform criteria for the office have been worked out until recently. Thus, it would be easy to guess what the status of the office would be.
It is inevitable that the office activities have to be monitored and controlled. As it is clarified before, there could be a range of violations in execution process. There could be not only violation of rights and interests of parties in a dispute but also the public as a whole. Furthermore, there could be instances of misuse of the authorities given to the office and considerable danger of corruption may exist. Thus, there should be adequate mechanism to tackle the indecent acts of agents. There should be also an organ with a controlling power, which reviews regularly the enforcement process, punishing and preventing the abuses of enforcement agents’ position. However in Ethiopia, there is no clear law establishing the office, no organ with a controlling and monitoring power. As stated the Ministry of Justice has not yet come up with a regulation which elucidates the power duties and responsibilities of the office as to who and how the activities of is the office is controlled. It is left wide open and there is no transparency and accountable at all. The office faces many problems. Many of the problems are related with absence of clearly procedure. According to the former officer of execution office:
The office faces internal and external problems as to who is responsible for what; there is problem of interdependency between the departments, absence of clear procedure of execution process and above all problems of accountability of the execution office is the vital problems featured.
According to the former officer of execution, employees of the execution office are criticized for poor quality of jobs and considerable procedural irregularities. He included:
Dissatisfactions raised by party to the dispute on adjournment are results from the absence of clearly defined purpose and responsibilities of the execution office.
The most important and fundamental law, the civil procedure code, has not been essentially changed until 1965. All in all, it would seem that adjusts in procedural legislation in the last 48 years are affected by a hopeless chaos. Among lawyers, there is a wide awareness that court procedures fail to satisfy the needs of the citizens for efficient and appropriate protection of their rights. But in spite of many announcements of reforms even the whole laws, the basic routines and basic structures have hardly been changed. The awareness by the lawyers have not yet led to a real and fundamental reform capable of bringing about a system of justice appropriate to the needs of modern democracies in the foreseeable future. No enforceable code of Ethics exists, as there are no clear laws. One can reasonably expect; as the current practice detects, the improper functioning of the execution process as there are not clearly defined roles, responsibilities, controlling and monitoring organ and code of ethics. All in all, only negative results can be predicted.
2. The office in terms of professionals and human resource
The office carry outs its activities with disorganized human resources. On the one hand, there are insufficient numbers of workers in the office and on the other the employees of the office are not trained in law and have a little knowledge about the procedure. Employees since they are untrained they didn’t understand the order of the court and there is shuffling of files from courts to offices and from offices to courts. The execution process might become even slower and more formalized than it has been so far, even more so because of the completely unnecessary shuffling of files from courts to offices and back again. It is beyond any doubt that enforcement agents should have a high professional knowledge in law in general and in civil procedure in particular: usually degree in law. However, most of the employees almost above 98 percent are inexpert and amateur and didn’t have a degree in law. The general consensus is that there is even no sufficient qualified manpower at country level: perhaps, the most symptom of the crisis in the judicial system of Ethiopia. Admittedly, this is inconsistent with the principles of enforcement and could have a great role for the disfunctionalities of the office.
3. Lack of sufficient Materials, Storage and Information Technology
The office undertakes its activities having a bureau in Lideta FFIC. As stated above executors should have proper working conditions and sufficient physical resources to conduct enforcement service. In particular it is said that enforcement agents must not lack resources for activities required for judgments enforcement such as adequate storage, vehicles, telephones, computers, the movement and storage of seized goods and arranging the sale of those goods. However, the office lacks information technology like telephones and computers as well adequate storage for conducting its operation.
Regarding to transportation, the office commences its operation not only in office but also in field. The office did not have adequate transportation service to his employees as well for the interested parties. Executors, judgment creditors, police of the division and Kebele representatives are not obtaining the required transportation and hence additional obstacle on the task/job. The assigned vehicle is not on a condition that it cannot perform the task it was meant for. The clients will be asked to pay initial 20.00 (Twenty Birr) Engineers tariffs as per the estimation. But, although they should have been given transportation service, they are being required to provide transport. This vividly shows contravention with the basic principles of enforcement.
In addition, due to lack of storage the office could not accept additional vehicles according to the decision of the court. Even vehicles that are accepted are not kept/stored well and orderly because of the limitedness of the space. At the same time it becomes too difficult to evaluate and make auction: even after selling handing over to buyers is difficult. The stored vehicles are being exposed to rainfall and the sun due to lack of shelter and as a result they are being damaged. What is the most threatening is because of lack of enough storage there are mixtures of properties of persons with other: and becomes too difficult to separate them, to place them methodically, to valuate, and sell them on auction.
To sum up, the enforcement of civil judgment against parties in commercial transaction; through the process known as execution, is a stepping-stone for the rule of law and to sustainable economic development. Understanding the imperative role of enforcement, countries move from traditional towards modern approach. Traditionally the guarantee to fair trial ends with a final and binding judgment: and what will happen after judgment is left outside the range of legal discussion. The guarantee to fair trial would end there where execution would typically only starts. However, in modern approach the guarantee to fair trial and the old Latin sayings Ubi Ius, Ibi Remedium- there is no right without an effective remedy- have got refresh recognition. The right to enforcement therefore is recognized as an integral part of fair trial. Efficient and effective enforcement of court decisions has crucial role in promoting human rights, trade and investment. The right to fair trial has got recognition both at national and international instruments. Besides execution of a court decision is an integral part of a fundamental procedural human right-the right to fair trial within reasonable time. Execution can have also role in promoting trade and investment.
Understanding the above essential role of execution, countries came up with different enforcement system with different enforcement agents to protect the fundamental rights of their citizens and to enhance their economy. Countries provide authority to different organs such as: enforcement judges, sheriffs, court executors, bailiffs, court or judicial officers for the enforcement of citizens’ right to fair trial. These enforcement organs are ranked either as civil servants subordinate to the ministry of justice, judicial officers subordinate to the courts, self-employed persons acting independently or are employed in a combination of both. Irrespective of their status countries regulates the activities of each enforcement agent through well-organized rules and procedures. Their activities are monitored and controlled. There is also an organ with a controlling power, which regularly reviews the activities of these agents on abuses. Enforcement organs are remunerated through a system of tariffs and have sufficient resources both human and physical resources. They are well trained in law in general and civil procedures in particular.
Based on controls and responsibilities there are four types of enforcement system employed by different countries. These are: court and multiple institutions–controlled enforcement, system of enforcement by ministry of Justice and Private Bailiffs. There is no general consensus on which types of enforcement systems are favorable over another. The issue of effectiveness and efficiency is extremely reliant on the context in which it is implemented. While there are poor records in one country there are good records on the other following the same system of enforcement. However there is growing evidence that some models operate more efficiently and effectively than others. In court-controlled enforcement system judges takes the lion share for execution proceeding while execution officers has a little room to drive execution proceedings. Quality of execution proceeding, high level of debtor protection and reasonable price are advantages while slow, rigid, and over formalized are the disadvantage of court controlled enforcement system. In multiple institutions controlled enforcement system there is no one organ that bears the responsibility of controlling execution proceedings. Enforcement system is divided among several organs. Opportunity for judgment creditors, professional quality, and choices among the institutions are the advantages while its expensiveness for the state, and requirement of skilled manpower to a large extent are the disadvantages. In system of enforcement by executive branch the dominant and primary responsibility for enforcement process relies on one or more executive bodies. Less expensive for the state budget and flexibility are advantages while intervention, lack of quality, and corruption are disadvantages. Finally system of enforcement by private bailiff has gained a good acceptance by many European countries. In this system bailiffs are responsible for enforcement proceedings and have a direct monetary interest on the fruits of enforcement. Rapid, efficient, inexpensive for the state budget, and professional quality are advantages while expensive for consumers, difficult to change, and intervention in selection process can be disadvantages of this system.
In Ethiopia the type of enforcement system employed is court-controlled. Execution proceedings are highly controlled by courts and its execution office. Execution office is currently established and functions under federal courts being responsible to Federal First Instance Court President. It undertakes its routine activities according to order of courts and by rules and guidelines provided by the head of the office. Even if the execution office has a great role in rendering technical and financial service to the courts, law does not establish the office. No rules, procedures, controlling and monitoring organ, code of ethics exists. Besides, the working condition of the office is not in a way compatible to the principles of enforcement. Lacks of both human and physical resources are among considerable problems of the office.
On the basis of this article some of the following recommendations are forwarded.
1) The need for establishment of execution office by law should be given a paramount importance. The Civil Procedure code has inadequate provisions and its old fashioned approach was often mentioned in the context of execution proceedings. Enforcement system appears to be more efficient in countries following the same court controlled model like Denmark where a court execution office rather than a judge, directs most of the enforcement process. There should be, therefore, an effort to provide with clearly defined roles, purpose, duties and responsibilities of execution officer with their respective controlling and monitoring organ by law. Denmark appears to be efficient and effective for the reason to provide its enforcement agent more responsibilities than a judge through well-established and organized laws. We should also learn from Denmark experience and confer enough authority for execution office to drive a more efficient process that will help to develop a system that promotes both efficiency and performance. There should be a shift of responsibility of judge from strict debt collection to more of facilitation, mediator and impartial dispute adjudicator. In general, enforcement agents, not the judge should drive most aspects of enforcement process and the judge should only interfere if serious due process issues or other abuses are raised.
2) The second way out goes to the establishment of the institution of Bailiffs in Ethiopia. There is a general trend in European countries towards the liberal profession. It is undisputable that Bailiffs have relatively best record for efficient and effective enforcement. To shift from court controlled to private controlled enforcement needs a huge capital and funds should be available. Regarding this issue, the Ministry of Capacity Building Justice System Reform Program Office on its Baseline Study report recommended that also, there should be an effort to revise the existing execution proceeding and the institution of Bailiffs should be considered.
In any case, it is clear that a mere change in the text of the law will not by itself lead to substantial improvements. Efficiency can be raised, and proceedings can be accelerated in a proper and just way, only if amendments in the law are accompanied by a comprehensive change in approach and awareness – meaning a real shift from old towards new approach. For that purpose, comprehensive programs of education and training will be necessary for all legal professionals (judges, lawyers, experts etc). It is quiet likely that a longer period of adjustment will be needed to experience actual changes and their results. Such a fundamental change in the process should only be done after serious debate, careful thought and broad support particularly form the legal professionals and the business community.
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