Giacomo Oberto
Secretary-General of
the International Association of Judges
JUDGES
AND NOTARIES IN EUROPE:
POSSIBLE
COMMON DENOMINATORS
Distinguished
representatives of the Notaries, distinguished organisers of this initiative, dear
Colleagues, dear Friends,
It is a great
honour and a pleasure for me to address you in the framework of this important
event organised by the Italian notaries, in my capacity as Secretary-General of
the International Association of Judges (IAJ) and also on behalf of its current
President, Judge José Manuel Igreja Matos. I would like also to add that it is
a particular pleasure for me to take the floor during an event organised by
notaries, being myself a former teacher and lecturer for more than twenty years
in the Notarial School of Turin.
As maybe many of
you know, the main purpose of the IAJ is to reinforce the independence of the
judiciary as an essential attribute of the judicial function, together with the
protection of the constitutional and moral status of the judiciary and the
guarantee of fundamental rights and freedoms.
The IAJ has
consultative status with the United Nations (namely the International Labour
Office and the U.N. Economic and Social Council, but mainly with the office of
the UN Special Rapporteur on the Independence of Judges and Lawyers) and with
the Council of Europe. As far as the latter is concerned, we have the status of
observer within the CEPEJ (Commission Européenne pour l’Efficacité de
la Justice – European Commission for the Efficiency of Justice) as well as
within the CCJE (Conseil Consultatif de Juges Européens – Consultative Council of
European Judges).
The IAJ is governed by its Central Council, composed of representatives
of the member associations, and also by the Presidency Committee, which is the
administrative organ under the leadership of a President who is elected every
two years, as are the members of the Presidency Committee, consisting of the
President, six Vice-Presidents and, for a period of two years, the immediate
past President.
The Association has four Study Commissions whose task it is to study a
different topic each year in various fields:
- The first is engaged in the study of the status of judges, the
independence of the judiciary, judicial administration and the protection of
individual freedoms.
- The second commission is involved in the study of civil law and
procedure;
- The third commission is engaged in the study of criminal law and
procedure;
- The fourth commission is involved in the study of public and social law.
At meetings and congresses, the member countries try to gain a better
knowledge of the country where the conference is being held, of its legal
system, and of the problems encountered by its judges. Petitions and
recommendations are produced at the conclusion of each congress.
Within the IAJ there are also four Regional Groups whose aim is to
monitor closely specific questions relating to the judiciary in different parts
of the world:
- the European Association of Judges (EAJ);
- the Ibero-American Group;
- the African Group
- the “ANAO” (Asian, North American and Oceanian) Group.
As far as the Studies Commissions are concerned, the one which is closer
to your aims and activities is of course the second (civil law and civil
procedural law).
Actually, since its creation, it has sometimes dealt with topics which
may be of some interest for Notaries. Its conclusions for each annual meeting
are available at the IAJ’s website (https://www.iaj-uim.org/general-reports-and-conclusions-by-the-2nd-study-commission/).
Let me mention just some of them:
·
(1980) “Effects of foreign judgements in fields not
covered by international conventions. Possibilities, means and methods of
executing urgent measures in the field of family law);”
·
(1981) “Protection of the interests of mentally
handicapped in private law;”
·
(1983) “The equality of husband and wife in family
law;”
·
(1985) “What legal rules should apply to the couples
living together not being married, both between themselves and towards their
common children;”
·
(1989) “The judge and the co-operation of other
Justice-related professions: Lawyers, Law-Professors, Public Notaries,
professional experts, and other State officials;”
·
(1992) “The Legal Status of Children after a) Divorce,
b) Separation, c) Annulment of Marriage and d) Separation of Parents Having
Cohabited Without Being Married;”
·
(2004) “The powers of the judge in family matters;”
·
(2005) “Alternative Dispute Resolution as a means of
improving the delivery of justice and reducing the delays in civil procedure;”
·
(2006) “Legal rules regarding patrimonial interests,
succession and duties of couples living together but not being married;”
·
(2011) “Cross-border issues in the face of increasing
globalization – as reflected in a series of individual fact scenarios”.
As far as relations
between Notaries and Judges are concerned, let me point out that already thirtythree
years ago, during our Congress in Macau held on 23-27 October 1989, the IAJ
approved, among other things, on the subject of “The Judge and the Co-operation
of Other Justice-Related Professions: Lawyers, Law-Professors, Public Notaries,
Professional Experts, And Other State Officials,” following conclusions:
“in the civil law
countries which know the Latin Notary
·
the Notary is a public official who advises the
parties impartially and points out to them the legal implications of such deeds
as they might wish to make, thereby preventing conflict between the parties,
·
authenticated deeds drawn up by the Notary simplify
evidence proceedings;
·
the Notary represents the parties in Court in matters
of voluntary jurisdiction;
·
the Notary is further required by the Court to perform
judicial acts such as inventories, divisions of property and affixing of seals;
it is desirable
that the functions of the Notary be consolidated and that resort to the
notary’s services in the administration of Justice be recognised and
encouraged.”
The IAJ and the
UINL have signed 28 years ago (on 29th September, 1994) a
cooperation agreement.
Coming to present
times, our two organisations have successfully co-operated in the framework of
EU law training in English language for European notaries and judges, involving
judges and notaries from Bulgaria, Hungary and Italy. The IAJ was also involved
in the programme called “EU Cross-border Matrimonial and Registered
Partnerships Proceedings: EU Regulations and E-Learning,” developed by the
Italian Notarial Foundation.
More precisely, a
project financed by the European commission was launched in 2019 in
co-operation with the Italian National Notarial Council and the Italian
Notarial Foundation on “Action grants to support transnational projects on
judicial training covering civil law, criminal law or fundamental rights”
(JUST-JTRA-EJTR-AG-2017).
The project officially started on September 3rd,
2018. The IAJ received European funds to finance the participation of judges
from 3 countries (Bulgaria, Hungary and Italy) in training activities concerning
family law. Seminars were therefore held in Italy, Hungary and Bulgaria. The
last 2 seminars were held in 2020, by video link, due to the pandemic
situation. On June 25th, 2020, a final seminar took place and I made
a brief intervention on behalf of IAJ, mentioning our good relations to the
International Association of Notaries and the excellent co-operation activities
done during a long period. On September 2nd, 2020, a news was
published on the IAJ website as well as a message spread among the IAJ members
as regards a handbook produced with the EU contribution, by the coordinator and
under the coordination of the project leader.
More information on this activity is
available here:
The above-mentioned
co-operation has as well produced a handbook on EU civil law. The document is
available at the following URL:
https://eventi.nservizi.it/upload/223/altro/handbook%20def.pdf
We know very well
that, on the international level, we already have a whole array of instruments
and declarations issued by international bodies such as the U.N. (see the so-called
Basic Principles on the Independence of the Judiciary) and the Council of
Europe (I am referring especially to Recommendation No. 12/2010 and to some
opinions of the Consultative Council of European Judges), which are stressing
the need to safeguard the autonomy, independence and impartiality of Judges.
But if we reflect attentively on the fundamental issues at stake, we can easily
discover that these very requirements are basically the same for the selection
and training of Notaries.
Therefore, I think
that, having in mind the highlights of those international principles, we could
try to benefit from the experience of those legal systems in which qualified,
objective and effective selection of legal professionals has been successfully
developed for many years.
Actually, we do
know that recruitment of legal professionals differs enormously in Common Law
countries, when compared to Civil Law countries.
In this framework I
would like particularly to emphasize the German experience of a common initial
training based on two phases (zweiphasige
Ausbildung): one more theoretical and the other one more practical, marked
by two severe and very selective examinations (erste Juristische Staatsprüfung, zweite Juristische Staatsprüfung), between which a “Preparatory
Service” (Vorbereitungsdienst) helps
prospective Judges, Notaries and Lawyers with getting acquainted with the
specific issues of each legal profession.
Another worth
considering option is the experience of the French Ecole Nationale de la Magistrature, which since 1958 has been
preparing young French law graduated to become Judges and Prosecutors. A model
which helped during these decades training thousands and thousands of judges of
the French speaking world and which was successfully exported in many other
countries of Europe and of other continents. Other positive experiences are
those of Spain, Portugal and of the Netherlands.
I am personally
convinced that, as far as the judicial side is concerned, we should try to
start a comparison among such systems in order to see what kind of “input” we
can find for a prospective new system of selection and training of Judges and
Notaries in a perspective which emphasises common aspects.
Let me also point
out that, as already said, international bodies have been developing in these
last years several legal instruments which could serve as a guide for singling
out common denominators for judicial and notarial selection and training, so
many are the aspect of our professions we share.
Both our
professions need people who are not only legal experts, but who are able to
cope with the awkward challenges of present times. Rather than people who know
by heart thousands of legal provisions, which very often are bound to stay in
force for a period no longer than… l’espace
d’un matin, we need young men and women who are able to find solutions to
unexpected problems raised by the dazzling and increasingly complex legal
framework resulting from internal, international, supra-national, transnational
and foreign legal provisions.
We also need honest,
independent minded and courageous people, who are able to defend and protect
day by day their own autonomy vis-à-vis possible external undue influences of
any kind. New ways of selection and training must encourage and foster such
spirits among young jurists. At this level too a co-operation among Judges and
Notaries is nowadays more and more needed. I am sure both our organisations
will be able to find out common denominators for Judges and Notaries of 21st
century.
Thank you for your
attention.