Procedural Simplification in the ENPI South Partner countries (Research Report 1)
Procedure is to justice what the backbone is to man. Without it the body cannot stand. Procedure, whether civil, criminal or administrative, determines the rules of the case by determining how it is conducted. Without procedure, the process would be anarchic. Repeated reproaches made against procedure concern its duration, sluggishness and lack of adaptation to the information and communication technologies. These reproaches are no doubt partially justified, but it is above all the use – the poor use – and the misuse of the procedure by certain legal professionals that lead to the delays observed.
Rather than do without procedure, the idea is to simplify it, without renouncing its role as protector of the right of the parties in the process. Simplifying also means adapting procedure to how litigation is evolving, and there is ever more of it. The appearance of mass litigation (small claims, repetitive claims, consumer credit, etc.) threaten to asphyxiate the courts that can only escape by using simpler procedures that consume fewer technical and human resources.
The means available to the legal system are often insufficient for needs and the growth curve of cases is on the rise, leaving no other choice to those in charge than to make the best use of means available, and in particular procedure.
The beneficiary countries in this study face the same challenges although their level of economic development differs. A study of their legal systems and their procedural practices has revealed the complexities and delays, as well as the good practices that look to simplifying procedures. The study has helped identify certain key points that could be the object of procedural adaptation to help deal better with certain litigation. Furthermore, the experience of several European countries and European legislation in resolving small claims or uncontested small claims, or even European enforcement order are certainly pertinent examples and sources of inspiration to help solve the crisis in the justice sector affecting all the countries in the neighbourhood South. This has led to twenty-five recommendations (25) made by the author, accompanied by comments. The impact of the « Arab spring » on the situation of the justice sector in the countries affected by these political changes could not be measured.
Lastly, international cooperation between the beneficiary countries themselves, and also with Europe, is dealt with from the judicial point of view. Globalisation has for some time affected the judiciary and cross border disputes have become frequent, sometimes giving rise to serious tension, particularly in cases of family litigation. There is a need to simplify cross border dispute procedures, and this certainly includes easier recognition, and even automatic recognition, of the judicial decision passed by another country. This is the approach adopted by Europe and that could serve as a model for reforms in the beneficiary countries.