Model statute for
an European Rechtspfleger/Greffier
All over Europe the duties of court increased. The following
overload of work is not only very hard for the judicial officials, it has the effect, that
the periods in which the procedures come to an end grow longer and longer.
Though people complain about this not satisfying situation, there were nor reforms. If
there were reforms, people hesitated to make them.
Recommendation Nr R (86) 12 of the Council of Europe was accepted very differently, though
its aim is to solve this problem: While the states of Central and Eastern Europe want to
accept the model of the German and Austrian Rechtspfleger, other countries are not so fond
of it.
The well-proved and effective delegation of competences from the judge to the
Rechtspfleger and comparable officials fails because of the opposition of traditional
interest groups.
The EUR wanted to improve the dynamic of the recommendation of the Council of Europe and
decided to create a
Model Statute for a European Rechtspfleger/Greffier. The Director of Legal Affairs at the
Council of Europe regarded the initiative benevolently. The EUR appointed a working group
to prepare the Model Statute. After several preparing discussions a larger working group
was called to Dijon into the french Ecole Nationale des Greffes. After two days of
intensive work there was an agreement about this important initiative of the EUR.
The basic elements of the status for this European judicial organ are
standardized in 4
sections :
I Objective
Is an independent organ of jurisdiction that is also embodied in the basic laws/the
constitution of the states
The competences include also tasks of administration in the upper classes of judicial
service
II Conditions for admittance and practice
as there are different situations in the member states it is planned to have minimum
conditions for educational background and training: general university entrance
qualifications 3 years of studies at the university or at least 3 years of studies at an
advanced technical college
III Competences:
The Model Statute sticks more or less to the competences of the Rechtspfleger in Germany
and Austria, enriched with competences, that are delegated to comparable officials in
other countries
IV Further Education
by a detailed listing of the necessary measures for further training the importance of
this topic for an efficient and modern justice is pointed out. After deep and long
discussions at the general assembly 1994 in Blankenberge the final decision was passed at
the congress in Alicante in 1995. We hope, that the countries make use of the Model
Statute - for making the work at the courts more efficient and to reduce the costs for the
personel.
Model Statute for an European Rechtspfleger/Greffier
Preamble:
1) The permanent increasing number of tasks of the courts led to measures, that can
a) improve the efficiency of the courts
b) assure a judicial decision within a reasonable time (article 6 of the Convention of
Human Rights)
c) intensify the use of informatics to assure fast work at the courts.
2) The introduction of the Rechtspfleger/Greffier in the constitutional countries of
Europe is an appropriate measure for the realization of the aims written in 1), it follows
the recommendation n (86) 12 of the Committee of Ministers of the Council of Europe and
takes care for the special competences of the Rechtspfleger/greffier in the certain
countries.
3) Following the recommendation n R (86) 3 of the Council of Europe concerning
education, research work and formation in matters of informatics and law, the officials
shall be assured to find the right possibilities for their training.
4) A unified order of the institute of a Rechtspfleger/greffiers - especially concerning
the education - lies in the interests of acknowledgement of diplomas (order 89/48 of the
European Unions)
These are the reasons, why the EUR asks all the member states of the Council of Europe to
introduce the institute of the Rechtspfleger/greffiers following the model statute, to
ameliorate the efficiency of the courts.
Model Statute for a European Rechtspfleger/Greffier
EUROPEAN ORGAN OF JURISDICTION (according to the recommendation Nr (86) 12 of the Council
of Europe)
I. Legal status
Definition: 1) Independent organ of jurisdiction according to the tasks that were
delegated to him by law. As organ of jurisdiction the Rechtspfleger is anchored in the
constitutional orders/constitution of the countries.
2) Superior official of justice, especially for competences concerning administration
II) Conditions for being authorized and for practicing
Extern employment:
Ability to visit a university or 3-years of studies at the university (law studies)
diploma. entrance exam, professional practice at least 3 years of studies in an advanced
technical college diploma
Contents of formation
-law studies
-practice
-informatics
The inner conditions for being admitted are left to the national orders.
III. Tasks:
To improve the efficiency of the courts the following tasks should be delegated to the
organ - as far as they are judicial affairs:
For example:
Jurisdiction voluntary jurisdiction
o family- and guardianship law
o law of succession
o law of land register
o register of commerce, register of associations
o register of societies, register of enterprises
o register for ships
o register for aircrafts
o law for documents
o protection of wealth by sealing
o authorizing to elect
o decisions about granting nationality
penal cases
o execution of penals (with issue of warrant or wanted circular)
o permission of deferment and payment by installments for fines
o order to execute prison sentences as replacement or replacement of this punishment by
making a welfare job
o prosecution at the district courts
civil cases
o collection proceedings (is of great economical importance)
o forced sale and forced administration of real estate
o insolvency cases
o determination of costs
o cases of distribution compulsory execution (a.o. seizure of payments)
o making and alteration of decisions concerning maintenance
o protection against execution
o administration of oath of manifestation in procedure of compulsory execution
o hearing of witnesses
o decisions concerning legal aid
o decisions concerning experts
o reinstatement of the former status
o cases of rogatory commission
administration
o director
o referees
o director for certain fields, or person for personality affairs (officials, employees,
working men)
o budget and organization
o head cashier of the court
o superior of the offices
o administration of personal - distribution of places in the offices
o power of disciplinary measures, right of proposing measures to the superior authority
o cooperation in the commission for disciplinary measures
o cooperation concerning employment and appointments
o elaboration of the budget
o procurement, control and use of the budget
o administration of buildings
IV, further formation
- the administration has to organize activities for further training, to make it possible
for the officials to be up to date concerning their professional education and to make it
possible for them to improve their present professional qualification, and to make sure
that an assimilation to a new field and to the technical development, especially in the
field od informatics is possible;
- there must be further training activities organized by application of the official and
it must be sure, that he can use these institutions (he must have free time for further
training and for research work and for educational leave);
- there must be the necessary budget for further education (there must be a certain
percentage of the budget for salary); - it must be sure, that the official has the right
of further education (it must be a certain time as minimum for each official)
|
