Analysis of the status quo of the National Chamber of ...

IPA 2012 / AL 12 IB JH 02

Twinning Project Improvement of the Enforcement System in Albania

Analysis of the status quo of the National Chamber

of Private Bailiffs in Albania

Authors:

Mrs. Zlaty Mihailoff

Mr. Jos Uitdehaag

Mr. Eric Vincken

The project is funded by the European Union

24 August 2015

The content of this publication is the sole responsibility of the expert team and can in no way

be taken to reflect the views of the European Union

List of abbreviations ......................................................................................................... 5

1. Introduction ................................................................................................................. 6

2. Background to the project ............................................................................................ 7

2.1. Explanation of the project .......................................................................................... 7 2.2. Other donors involved in enforcement ...................................................................... 8 2.3. Current context of the project and mission................................................................ 9

3. Executive summary ..................................................................................................... 10

4. Legislative framework of enforcement in Albania ........................................................ 17

4.1. The legal framework pertaining to the enforcement of court decisions ................. 17 4.1.1. General observations on the legal framework ............................................................................. 17 4.1.2. The legal framework pertaining to the organization of the Chamber ......................................... 18 4.1.3. The drafting of secondary legislation ........................................................................................... 19 4.1.4. Bailiff and enforcement service? .................................................................................................. 19 4.1.5. Number of bailiffs ......................................................................................................................... 20

5. Structural and organizational aspects .......................................................................... 22

5.1. Organizational structure of the Chamber ................................................................. 22 5.2. Bodies of the Chamber ............................................................................................. 23

5.2.1. General Council ............................................................................................................................ 23 5.2.1.1. Strategic Planning ................................................................................................................ 24 5.2.1.2 Management ......................................................................................................................... 24

5.2.2. Supervisory Committee/ Council .................................................................................................. 25 5.3. Chamber premises .................................................................................................... 26

6. Chamber Staff and HR Policy ....................................................................................... 27

6.1. Selection and Appointment ...................................................................................... 27 6.2. Remuneration ........................................................................................................... 27 6.3. Career perspective .................................................................................................... 28

7. The Financial management of the Chamber ................................................................ 29

7.1. Budgeting versus membership fee ........................................................................... 29 7.2. Financial bookkeeping - in house or outsourced ...................................................... 29

8. Services provided by the Chamber .............................................................................. 30

8.1. Services to the members of the Chamber ................................................................ 30 8.2. Services towards the general public ......................................................................... 31

9. Professional Development and Training ...................................................................... 32

9.1. Legal education ......................................................................................................... 32 9.2. Initial training ............................................................................................................ 32 9.3. On-going training ...................................................................................................... 33 9.4. Training Needs Assessment ...................................................................................... 33 9.5. Training strategy ....................................................................................................... 33 9.6. Organization of training ............................................................................................ 33

10. Ethics, disciplinary proceedings against Bailiffs .......................................................... 34

10.1. Ethics and professional conduct ............................................................................. 34 10.1.1. International standards .............................................................................................................. 34 10.1.2. Ethics and professional conduct in Albania ................................................................................ 35

10.2. Complaints and disciplinary proceedings ............................................................... 36 10.2.1. International standards .............................................................................................................. 36 10.2.2. Disciplinary proceedings: Albania............................................................................................... 38

10.3.Disciplinary sanctions .............................................................................................. 40 10.4. Disciplinary body ..................................................................................................... 41 10.5. Liability .................................................................................................................... 41

11. The performance, monitoring and control system ..................................................... 42

11.1. International standards .......................................................................................... 42 11.2. Present situation in Albania .................................................................................... 43 11.3. Proposal for improvement of supervision, based on a system of professional standards.......................................................................................................................... 45

11.3.1 Professional standards ................................................................................................................ 45 11.3.2 Professional standards and monitoring and control ................................................................... 47 11.3.3 Assessment of the implementation ............................................................................................ 48 11.3.4 Financial supervision ................................................................................................................... 48 11.3.5. Extra-ordinary supervision ......................................................................................................... 49

11.3.6. IT based solutions in monitoring and control ..................................................... 49 12. Public awareness and public education ..................................................................... 50

12.1. Communication Strategy ........................................................................................ 50 12.2. Establishing Communication protocols .................................................................. 50

12.2.1. Communication with institutions ............................................................................................... 50 12.2.2. Internal Communication............................................................................................................. 51

12.3. Public awareness towards courts and legal professionals ..................................... 52 12.4. Public awareness towards general public .............................................................. 52 12.5. Performance and perception surveys ..................................................................... 53

13. Conclusions and recommendations ........................................................................... 54

13.1. Conclusions ............................................................................................................. 54 13.2. Recommendations .................................................................................................. 56

List of abbreviations

ALCPC Albania Civil Procedure Code

ALINREG Albania Internal Regulation of the Bailiff Service (2003)

ALOBS Albania Law on the Organisation and functioning of the Bailiff Service (nr.

8730)

ALPES Albania Law on Private Bailiff Service (10031)

Bailiff Enforcement Agent, meaning without difference whether Private bailiff(PB)

or State Bailiff (SB))

BERP Balkan Enforcement Reform Project

CEPEJ Council of Europe Committee on the Efficiency of Justice

CEPEJ (2009) 11 REV Guidelines for a better implementation of the existing Council of Europe’s

Recommendation on Enforcement, European Commission on the efficiency

of Justice (CEPEJ), CEPEJ (2009) 11 REV

CILC Centre for International Legal Cooperation

CoE Council of Europe

DLPB Dutch Law on Private Bailiffs

ECHR European Convention for the Protection of Human Rights and Fundamental

Freedoms

ECtHR European Court of Human Rights

EU European Union

GIZ Deutsche Gesellschaft fűr Internationale Zusammenarbeit (GTZ) GmbH

PB Private Bailiff

Rec 17/2003 Council of Europe Recommendation (2003)17 of the Committee of Ministers

to member states on enforcement (adopted by the Committee of Ministers

on 9 September 2003 at the 851st meeting of the Ministers’ Deputies)

SB State Bailiff

UIHJ “Union Internationale des Huissiers de Justice et des Officiers Judiciaires”,

the International Association of judicial officers and enforcement agents

1. Introduction

The current report is the result of the expert mission of activity 1.3 ‘Improve internal legal,

organizational and institutional set-up of the Chamber of Private Bailiffs’ of European Union funded

Twinning project “Improvement of the Enforcement System in Albania” (AL/12/IB/JH/02).

The expert team conducting the mission, consists of:

- Ms. Zlaty Mihailoff, enforcement and institutional capacity expert, representative of CILC in

Bulgaria;

- Mr. Jos Uitdehaag, enforcement agent, first secretary and member of the board of the

International Union of Judicial Officers (UIHJ), member of the board of the Royal

Netherlands Organization of Judicial Officers, member of the Board of Partners of CILC ; and

- Mr. Eric Vincken, deputy director of the Center for International Legal Cooperation and

Junior Member State project leader.

During the mission (29 June – 3 July 2015) the expert team studied the relevant documents and held

numerous meetings with the leadership of the Chamber of Private Bailiffs, staff of its office,

members of the Chamber of Private Bailiffs and other stakeholders like e.g. Ministry of Justice

officials. Furthermore, the expert team participated in the kick-off event of the project on 30 June

2015.

The expert team would like to thank the Chamber of Private Bailiffs and in particular its president

Mr. Tedi Malaveci, its vice-president Ms. Joana Konomi, its secretary-general Ms. Genta Tafa, as well

as the Board of Directors under the leadership of its chairman Mr. Alban Ruli.

The present report is the main output of the mission, reflecting the main findings and

recommendations of the mission. In order to establish a 100% crystal clear picture of the exact state

of play, however, some additional documents will still need to be assessed once they are translated.

In a separate mission report, the expert team included a list of these documents. It is expected that

the RTA and his team in Tirana will take the responsibility to ensure the necessary follow-up. The

views, recommendations and conclusions reflected in this report are exclusively those of the expert

team and cannot be held as those of the European Union.

2. Background to the project

Albania is a country in Southeastern Europe. It is bordered by Montenegro to the northwest, Kosovo

to the northeast, the Former Yugoslav Republic of Macedonia to the east and Greece to the south

and southeast. It has a coastline on the Adriatic Sea to the west and on the Ionian Sea to the

southwest. It is less than 72 km from Italy, across the Strait of Otranto which links the Adriatic Sea to

the Ionian Sea.

Albania is a member of the United Nations, the Organization for Security and Cooperation in Europe,

NATO, the Council of Europe and the World Trade Organization. Since June 2014, Albania has the

status of a candidate member state to the European Union.

The modern-day territory of Albania was at various points in history part of the Roman provinces of

Dalmatia, Macedonia, and Moesia Superior. The modern Republic became independent after the

collapse of the Ottoman Empire in Europe following the Balkan Wars. Albania declared

independence in 1912. It then became a Principality, Republic and Kingdom until being invaded by

Italy in 1939, which formed Greater Albania. The latter eventually turned into a Nazi German

Protectorate in 1943. The following year, a socialist People’s Republic was established under the

leadership of Enver Hoxha and the Party of Labor. Albania experienced widespread social and

political transformations during the communist era, as well as isolationism from much of the

international community. In 1991, the Socialist Republic was dissolved and the Republic of Albania

was established.

Albania is a parliamentary republic. Its capital is Tirana. This city is also the financial capital of the

country. Free-market reforms have opened the country to foreign investment, especially in the

development of energy and transportation infrastructure. Albania is an upper-middle income

economy with the service sector dominating the country's economy, followed by the industrial

sector and agriculture.

Since 1 January 2009, Albania has a two-track system of enforcement of civil judgments and other

enforceable titles, consisting of:

- The State Bailiffs’ system, managed by the Directorate-General for Enforcement of the

Ministry of Justice and implemented by 57 State Bailiffs, divided over 22 local State Bailiffs’

offices’ and

- The Private Bailiffs’ system, organized through the Chamber of Private Bailiffs (as of October

2010) and implemented through 229 licensed Private Bailiffs (of who 165 are active at

present).

2.1. Explanation of the project

Since 2005 the European Union has been supporting the Albanian enforcement system through the

so-called EURALIUS mission. The EURALIUS Mission is designed as an EU technical assistance project

which supports and assists key Albanian justice institutions to bring their performance closer to EU

standards. At present, EURALIUS Mission IV is being implemented by a consortium of Germany, the

Netherlands and Austria. From the beginning the EURALIUS included so-called enforcement experts

to advice the Albanian Government in making the Albanian enforcement system more efficient and

effective, as the performance of the Albanian enforcement system has always been very much

criticised in the EU Progress Reports. The present EURALIUS IV Mission does not focus on the

enforcement systems anymore, as the Albanian Government requested a separate Twinning project

to focus on enforcement.

The Twinning project “Improvement of the Enforcement System in Albania” (AL/12/IB/JH/02) which

is being implemented by a consortium of France (through JCI) and the Netherlands (through CILC),

has the purpose to support the development of efficient and effective enforcement services. Its

specific objectives are to simplify enforcement procedures, to shorten the duration of enforcement

procedures, to reduce the courts’ workload and to reduce the inflow of enforcement cases to the

courts and reduce enforcement cases backlog in the courts. The Twinning project should also

improve the performance and professionalism within the enforcement bodies. It is against this

background of improving the performance and professionalism within the enforcement bodies and

in this case in particular with regard to the Chamber of Private Bailiffs, that the expert mission that

produced the current report should be seen. The expert mission was conducted under activity 1.3 of

the Twinning project

Activity 1.3: Improve internal legal, organizational and institutional set-up of the Chamber of Private

Bailiffs

Description of Activity An analysis of all legal documents, statutes, internal regulations (deontology, ethics,

discipline, etc.) of the Chamber of Private Bailiffs will be conducted. An evaluation

of financial means and human resources of the Chamber will be performed (the

results of this evaluation will be used in the framework of activity 1.5).

Recommendations will be formulated according to best European standards.

Existing coordination regulations and cooperation/partnerships agreements of the

Chamber of Private Bailiffs will be reviewed.

Expected Outputs Analysis Report

Set of Recommendations

2.2. Other donors involved in enforcement

As mentioned above, EURALIUS Missions I-III have, through the inclusion of a Long-Term Expert on

Enforcement always supported the Albanian enforcement system. As far as the current EURALIUS

Mission IV is concerned, this mission does not focus anymore on enforcement as such. However, the

EURALIUS IV team members are heavily involved as advisors to the current legislative reform

process. This legislative process also includes the legislative framework for legal services as e.g. the

two enforcement systems. During the expert mission, the expert team met with the responsible

Long-Term Expert from the EURALIUS IV mission in order to discuss the expert team’s concerning the

legislative improvements to be made in the area of enforcement law (for further information, we

refer to the next paragraph).

Between 2008 and 2011, a consortium consisting of CILC, GIZ and UIHJ, implemented the so-called

Balkans Enforcement Reform Project. The aim of this regional project was to support the reforms in

the area of enforcement law at a regional and a national level in each of the beneficiaries of the

project (Albania, Bosnia & Herzegovina, Croatia, Former Yugoslav Republic of Macedonia, Kosovo*,

Montenegro and Serbia). As the start of the implementation phase of BERP coincided with the start

of the PB system in Albania, the focus of BERP has to a large extend been on the implementation of

the PB system. BERP supported the establishment of the Chamber in 2010, organized some trainings

for PB’s and contributed to building a public awareness campaign about the PB system.

2.3. Current context of the project and mission

The start of the Twinning project more or less coincides with the 5th anniversary of the Chamber of

Private Bailiffs. An achievement that is to be celebrated in October 2015.

More important to mention at this moment is the fact that in November 2014, a new president, vice-

president, secretary-general and board of directors were elected and took up their responsibilities

for the further development of the Chamber. Since November last year, the new young and

energetic management of the Chamber, under the leadership of president Mr. Tedi Malaveci started

to revive the functioning of the Chamber, to strengthen its bodies and to build on the external

exposure of the Chamber.

Finally, it is quite important to mention that the current Twinning project is to be implemented

against the background of a process of a comprehensive legislative reform in the justice system,

initiated by the new Albanian Government. In May 2015, the so-called Ad-Hoc Parliamentary

Committee for the Reform of the Justice System (with the support of the donors, notably the

EURALIUS IV Mission) presented the Analysis of the Justice System in Albania 2015. The aim of this

document was to analyse the current state of the justice system. In this analysis also the present

state of affairs and main challenges of the SB and PB systems are included. Based on the Analysis

expert working (sub-)groups have been developing strategies to overcome the weaknesses and

challenges ahead. For the enforcement systems, the working group on legal services prepared a so-

called Strategic Document on the Reforms in the Justice System. This document was discussed with

the expert team during the mission and some additional suggestions of the expert team were

included. In the meantime, it became clear that the experts’ suggestions were taken over by the Ad-

Hoc Parliamentary Committee for the Reform of the Justice System as a shortened version of the

proposals was included in the Strategy on Justice Reform. The aim of this document is to determine

the strategic objectives of reforms in the justice system and to identify the necessary constitutional

and legal interventions for the realization of these objectives, on the basis of problems identified by

the analytical document. In a discussion with the co-chair of the sub-group on Legal Services and

Free Professions, it became clear that expertise from the Twinning project will be expected in order

to implement the Strategy as far as the enforcement systems are concerned.

3. Executive summary

The present analysis is a direct result of the mission undertaken in June 2015 under the Twinning

project “Improvement of the Enforcement System in Albania” (AL/12/IB/JH/02) which is being

implemented by a consortium of France (through JCI) and the Netherlands (through CILC). The

project has the purpose to support the development of efficient and effective enforcement services.

Its specific objectives are to simplify enforcement procedures, to shorten the duration of

enforcement procedures, to reduce the courts’ workload and to reduce the inflow of enforcement

cases to the courts and reduce enforcement cases backlog in the courts. The Twinning project also

aims at improving the performance and professionalism within the enforcement bodies, with an

emphasis on the National Chamber of PB. ST Experts reviewed the legal documents, statutes,

internal regulations (deontology, ethics, discipline, etc.) of the Chamber of Private Bailiffs, evaluated

them in the framework of best European standards and offered specific recommendations listed at

the end of this document.

Following a meeting with a representative of the EURALIUS IV, experts had the opportunity to

intervene in the strategy development and incorporate their suggestions in close cooperation and

consultations with the Chamber in the Ad-Hoc Parliamentary Committee for the Reform of the

Justice System, as a shortened version of the proposals was included in the final Strategy on Justice

Reform.

Based on the Government Program, the Law on Private Judicial Enforcement Service (here after

ALPES) was adopted on 11 December 2008. Despite the short period of operation, the ALPES so far

has been amended in 2009 and 20121. It introduced a parallel private enforcement system.

According to article 4 paragraph 2 ALPES the enforcement services may also be provided by

commercial companies. Rec 17/2003 refers to the bailiff as a person authorised by the State to carry

out the enforcement process, irrespective of whether that person is employed by the State or not.

Based on best European practices, the private bailiff is considered an independent professional – a

person to whom the state assigns enforcement execution of private or public receivables. ALPES is

unclear in this respect. We recommend adjusting the provisions regarding the establishment of a

company or partnership: the powers remain to the private bailiffs individually.

The basic legislation is existing but it needs some revisions and improvement to align with

international best practices and be adjusted following the almost five years practice.

The Ministry of Justice has issued 230 licenses, they report 165 active bailiffs, while for the inactive

ones only names are available, no address, nor contact information. According to articles 32, 37 and

39 ALPES the private bailiff has to meet certain obligations. Non-active bailiffs do not meet those

requirements and in our opinion this is a reason to withdraw such licenses, also in line with other

provisions, see for example article 22 paragraph 3 ALPES: within one year after the suspension

period ended, the suspended bailiff will need to request resumption of activity or will be erased

from the register of private bailiffs.

1 By law 10137/2009 and law 36/2012

The Statute of the Chamber, provisioned in Art. 28 of the Law for the Private Enforcement Service,

was adopted on 21st February 2015. The Chamber is about to celebrate its 5th anniversary in

October of this year, although from an institutional building point of view it looks as if it has just

started its operations. This is mainly due to the change of management and the fact that the

previous more than four years the Chamber has been idle. There is a clear disconnect between the

previous and the new Chamber leadership. The present management is highly motivated and

actively working for developing the Chamber. They have the potential to accomplish big

achievements with respect to the organizational development of the Chamber.

The Statute of Performance and Exercise of Bailiff Activities has been developed and shared with the

members. It covers the stages of the enforcement process and is an attempt to streamline

enforcement practices. It is further broken into modules to serve as practice standards. This

represents a good beginning for the efforts to unify the practices of bailiff. More endeavours are

necessary in this area in order to ensure the professional development and professional standards.

From November 2014 to July 2015 the Board has issued 3 more regulations: on the General

Assembly, on Holding Auctions and on Complaints Procedures. None of those have been reviewed

by the experts due to the lack of an English translation. The work of the Board extends further to the

development of three directives: on the Implementation of the explanatory document of the

General Directorate of Taxation, on the Temporary Wage Order and on the Unchanging Value of

Monitory Obligations.

On the other hand, no policies governing the work of the National Chamber have been developed.

The efforts were concentrated on drafting a new Statute and a draft Code of Ethics and the rest of

the work remains unregulated.

According to Art. 26 the General Assembly of PB and the General Council are the governing bodies.

The General Assembly is provided to convene minimum once per year. The situation at present is

unique where there have been three general assemblies in six months. The organizational structure

as provided within the law is confusing for the outside world and the coming set of proposals for

amending the law on the private bailiffs provides an opportunity for its revision.

Based on the President's strategic programme document, the Board developed with collective

efforts a strategy for the development of the Chamber. This document has not yet being shared with

the team of consultants conducting the mission but the general understanding and consensus is that

it would be revisited during the Twinning Project duration to produce a comprehensive strategy for

development.

With respect to Chamber management, there is no institutional memory but a new culture of active

and open communication with the membership, as well as the outside world, is in the process of

establishment. For the first six months there has been positive developments and notable efforts to

improve the environment. Being still new to the profession and most of them to the operations of

the Chamber, Council members preferred to work together, learn and support each other. Still there

is no separation of powers, nor different portfolios assigned to Council members. Efficient

delegation is necessary to avoid the overburdening of one person, at present major efforts are the

sole responsibility of the President.

Internal control is weak. Currently there is no body organized, nor even a person tasked with the

assignment to supervise the work of the General Council. A special body should be established to

perform this important function. Regular reporting should be initiated by the Board.

Current Chamber office is new, modern and welcoming. The administrative staff consists of two

people, both assistants to the President. A legal specialists is expected to join the team. Selection

process was carried out professionally with developed job descriptions and proper advertisement.

Remuneration levels for staff are adequate, but still no payment for members of governing bodies is

introduced.

Being a relatively new organization, the Chamber provides for the opportunity to develop its people

and broaden the scope of responsibilities by introducing new services to the members and assuming

broader responsibilities to both members and the general public. The plans for Chamber

development are ambitious and envision a number of considerable investments, including case

management system upgrade and further integration, and would require a working model of fee

calculation and collection: either a fixed fee, or a fee based on the turnover of the private bailiff or a

mixture of these possibilities. Options should be explored and decisions taken as soon as possible to

guarantee financial stability of the organization.

It is still too early to evaluate the services provided by the Chamber and more initiatives are to be

developed but the indications are there. In terms of representing the profession, elected

representatives participate in negotiations and discussions with the government on issues

concerning the PB profession, like e.g. on the fee schedule. The president of the Chamber has

circulated a number of letters to third parties (like e.g. association of banks) in order to inform these

potential creditors on the main features of the PB system and make proposals for cooperation in the

future. He also represents the profession of PB’s in working groups and discussions concerning

possible legislative changes affecting PB’s and their work, as e.g. the sub-group on legal services and

free professions of the Ad-Hoc Parliamentary Committee on Justice System Reform.

The Chamber has the tasks to provide guidance to and monitor the observance of professionals

standards for the profession. As such the Chamber issues by-laws and regulations which are

obligatory for all PB’s, and provides model documents to be used, like the model contract between a

PB and his/her client. An important document to be mentioned in this context is the Statute of

Performance and Exercise of Bailiff Activities. The objective of this document is to discipline the

procedural actions of private bailiffs and the creation of models to be used by the bailiff during an

enforcement procedure.

The Chamber introduced infrastructure to facilitate the work of the bailiffs. It provides access for

PB’s to a number of registers was organized (Civil Registry and Registry of Real Estate) whereas

access to more registries is under negotiation (Motor Vehicle Registry and Creditor/Loan Registry).

As the Government supported ALBIS system does not function properly, the Chamber developed its

own case management system SIAIP which can be accessed through the Chamber website. The

website itself: www.nchb.al, represents an efficient tool for communicating with both the outside

and inside world. It is in Albanian and partly in English and is providing information on the structure

of the Chamber and the operation of the PB system on a regular basis. Through the website the

potential clients can also find all PB’s through the Register of PB’s.

In accordance with the Law on PB’s a procedure is to be established for handling complaints of

debtors or creditors in enforcement proceedings. Not much practice is present to that respect and

this function of the Chamber needs to be developed. In line with best professional practices, a

streamlined procedure for handling complaints needs to be in place.

Training initiatives provided by the Chamber are few and sporadic with no information available, nor

any records of previous trainings. Several donor project-funded campaigns were conducted at the

onset of the new profession and a couple of recent efforts, initiated by the new Management Board.

Seminars on the statute of Performance were delivered by Board members to 16 newly appointed

bailiffs. These efforts are highly insufficient and the Twinning project will encourage and support the

Chamber to introduce a systematic approach to training, including a TNA and curriculum

development.

Concerning on-going training, although current regulations provide for two obligatory on-going

trainings per year, in practice this requirement is not imposed. No one monitors if the obligation is

fulfilled, nor is the Chamber offering options for keeping up to it. A curriculum is going to be

developed as a result of project efforts. To complement that a creation of a library and on-line data

base including jurisprudence is to be envisioned.

Further to the Recommendation 17/2003 and CEPEJ Guidelines (2009)11 Rev, Chamber needs to

develop a professional conduct and Code of Ethics which represents “a reinforced autonomy". In this

respect, experts find it strange that it is the Minister of Justice and not the Chamber who adopts the

Code of Ethics (article 10 ALPES). It is the task of the Chamber to ensure the implementation of the

professional and ethical criteria (article 25 under a ALPES). A review of the Code of Ethics is

necessary.

The disciplinary process also needs revision. Currently two representatives in the Disciplinary

Commission are from the private bailiff profession. Guaranteeing the independence of the body in

charge of disciplining bailiffs is one of the key principles in the profession. We recommend

introducing an independent disciplinary body, in line with the Recommendations and Guidelines of

the Council of Europe, involving the judiciary. The way it is regulated at present raises a number of

questions: who are meant with the parties in the enforcement process? Does this exclude other

persons? Does this mean that a complaint is always linked to a certain enforcement procedure? How

is the Chamber able to protect and ensure its duties, as it is unable to initiate disciplinary

proceedings to (safe) guard the profession?

The list of disciplinary violations in article 52 ALPES is rather limited. In practice this leads to

complications, hence the experts have proposed a complete list of prescribed sanctions.

http://www.nchb.al/

Experts stress the importance of Guideline 5, reminding that it is also the responsibility of the bailiff

not to incur unnecessary enforcement costs. It is recommended that Guidelines 80 and 57 are

incorporated in the ALPES.

Article 25 under c ALPES describes the task of the Chamber with regard to monitoring and control

over the private bailiffs: the Chamber oversees the exercise of profession of private judicial bailiff. A

clear provision on who is responsible for monitoring and control and how it is organised, however, is

missing. A more detailed description and provisions of the monitoring and control mechanism is

necessary. The powers of the Minister of Justice and the Chamber are also described in a very

general way. There is no provision for disclosing the assets of the bailiff on a regular basis.

From article 32 ALPES one may conclude that it is necessary to have an insurance. In most countries

such an insurance needs to be concluded prior to appointment. It is also not clear what kind of

insurance article 32 is referring to: an insurance against potential damage to third parties in the

course of his or her activities, or an insurance against damage, destruction or loss for the premises

and equipment received into care.

Further than that, experts could not find any legal obligations for submitting performance reports.

Certain data has to be provided based on ALBIS but since the system has stopped working, data is

submitted sporadically. MOJ department for legal professions, in charge of supervising the bailiffs

has a substantial lack of capacity which influences the frequency of controls and the supervision

function of the MOJ. In 2014 only 5 offices were controlled.

Experts recommend that an elaborate system of professional standards is introduced in Albania.

Standards guarantee a minimum level of quality in each bailiff’s office. They function for an

individual bailiff as a reference guide how to organise the office, and at the same time for the

supervision authorities (MoJ and Chamber) as a tool to facilitate the supervision. Based on the

system introduced in the Netherlands about 4 years ago and with the active involvement of the local

partners and the Project, the set of professional standards will reflect both the bailiffs’ public servant

and entrepreneur function. Simultaneously with the establishment of the regulatory standards and

set of best practices, the legislation will need to be reviewed.

The professional standards will serve as assessment criteria, as they are clear and transparent and

comprehensible to the bailiffs, MoJ and Chamber. On a regular base (every two years), as a

preventive measure, a formal review on compliance with the standards and best practices needs to

be done. The authority carrying out the assessment (audit) may supply the bailiff with an audit

certificate, indicating that the bailiff meets all standards. Not meeting those standards means that

disciplinary proceedings will be initiated.

Concerning financial supervision, however, a more frequent reporting is necessary. On a quarterly

basis the bailiff needs to report to MoJ on the money flows within the office, using standardized

templates to be submitted electronically though an IT platform. Several scenarios are possible:

develop a complete new system, adjustment of ALBIS or continue to develop the SIAIP system.

Parallel to the that, extra-ordinary supervision should also be carried out on the initiative of the MoJ,

Chamber or Court, or based on a motivated motion of the parties to and participants in enforcement

proceedings.

The field of public awareness and public education is unexplored. The Chamber should develop its

strategy and leading objectives and based on that formulate messages for the general public as well

as for specific target audiences. Only unified messages should be communicated to the outside

world to form the public image of the organization and the profession. For the nearly five years of

existence there has not been a communication strategy, nor any ad hoc initiatives. A mission is

planned under the Twinning project to draft the strategy together with the Chamber leadership in

November 2015.

The new Board has initiated dynamic and proactive steps towards establishing effective

communication protocols and reaching out to the stakeholders. The reached four agreements with

government agencies are an excellent beginning. Efforts will have to continue for current successful

results. A careful follow up on those is recommended to serve as a promotional tool for further

activities based on an analysis of the benefits for both sides.

Another achievement with respect to communication with institutions is the development of the

SIAIP (the Integrated System for Information Administration) system - a unified IT solution that

provides on-line access to state registries and facilitates the work of each individual bailiff. The

system was developed at the initiative of the Chamber with the support of bailiffs and is a significant

improvement in the direction of automation of the profession and the use of modern technology.

Prior to the election of the new Board internal communication was very week. The Chamber was not

promoted among the members, nor actively seeking the support of the membership. The shift in the

attitude towards internal communication is evident. A new webside of the Chamber has been

developed and is serving as a communication tool. Credit should be given for keeping it up to date

and informative. Providing access to information and sharing others' experiences contributes to

growing the dignity and responsibility of Albanian bailiffs.

While visiting bailiff offices, expert also tried to receive feedback concerning the perception of the

work done by the Chamber and noted positive developments, although still at an early stage. More

targeted communication is necessary to form the relationships of trust and respect.

Twinning experts recommend that at least 2 national conferences are scheduled for the coming year

on which all PB can take part, embrace Chamber initiatives, discuss specific relevant issues and

contribute to the development of the profession.

Concerning public awareness of the general public and other stakeholders, no efforts have been

identified for improving it. It is recommended that annual conferences are organized to raise

awareness and establish contacts between PB and other legal professionals. There is a broad

spectrum of activities that can be employed to achieve results. Twinning advisors will work closely

with the Chamber to propose and develop comprehensible visibility materials and campaigns.

The celebration of the 5 year anniversary of the establishment of the Chamber can serve as an

excellent possibility to start the initiative. International partners and counterpart organizations can

be invited to support the national organization and deliver important messages. The idea to produce

a short educational video for the broader audience was accepted by the Chamber and the objective

is to prepare one for the coming anniversary celebration.

Experts recommend that a baseline survey is carried at an early stage of the project and a

performance survey is also conducted towards the end of the project to be able to measure progress

and results. Overall, the Chamber has the potential and the will of its leadership to work for its

institutional development. The course is outlines and with the support of the Twinning Project

significant results are to be expected.

4. Legislative framework of enforcement in Albania

4.1. The legal framework pertaining to the enforcement of court decisions

4.1.1. General observations on the legal framework

The main guiding document of the Albanian Government for developments in the field of

enforcement is the Government Program, as presented to the Parliament on 9 September 2005.

In this document the Government outlined that the than existing system of enforcement, as it was

regulated in the Law on the Organization and Functioning of Judicial Bailiff’s Service, Nr. 8730,

hereafter ALOBS,2 did not meet the expectations and that the rate of enforcement was

unsatisfactory. Therefore, the Albanian Government under Prime Minister Berisha made it a priority

“to restructure and strengthen the capacities of the bailiff office and creating opportunities for the

private sector in this field”.

Based on this Government Program the Law on Private Judicial Enforcement Service3 (here after

ALPES) was adopted on 11 December 2008.

With this law Albania created a mixed system consisting on the one side of privatized enforcement

through self employed bailiffs (entrepreneurs), whereas on the other side the State-run

enforcement service also remained. The private enforcement execution was practically implemented

in the last quarter of 2010 due to various delays.

Despite the short period of operation, the ALPES so far has been amended in 2009 and 20124.

With the creation of this dualistic system of enforcement (coexistence of both state and private

bailiffs) Albania created a system where both types of bailiffs conduct the enforcement proceedings

according to one and the same procedural rules – the ones envisaged in the Civil Procedure Code,

mainly Chapter IV (Notices) and Part IV, called Enforced Execution. 5

With the introduction of ALPES some additions have been made to the Civil Procedure Code. The

powers of both types of EA became similar: according to art 515 ALCPC the executive order is

enforced by the State or private judicial service through the enforcement bailiff, based on a choice

by the creditor. It is the creditor who decides to address either the PB or the SB. As indicated the

procedural provisions are the same.

Nevertheless there are some differences between the PB and the SB.

Some examples:

2 Law on the Organization and Functioning of Judicial Bailiff’s Service, Nr. 8730, dated 18 January 2001, hereafter ALOBS. 3 Law on Private Judicial Enforcement Service (no. 10031), 11 December 2008, hereafter ALPES. 4 By law 10137/2009 and law 36/2012 5 Code of Civil Procedure of the Republic of Albania, based on art. 16 of Law No. 7491, dated 29 April 1991 "For the Main Constitutional Provisions", lastly amended by Law no. 10052, 29 December 2008, hereafter called ALCPC.

1. First there is a difference in the competence of the bailiff: the competence of the PB is the

territory of the republic of Albania (art 7 ALPES) whereas the competence of the SB is

depending on the place of enforcement (art 516 ALCPC).

Here the question also was raised by the Albanian Chamber on the authority of the State Police with

regard to the collection of unpaid invoices from utility companies. In our opinion there is not a legal

base for such collection.

2. Based on art 2 ALPES one might conclude that the PB is also given a possibility to enforce

public claims. However, contrary to e.g. Bulgaria, a clear provision on such a competence is

missing in the ALPES. 6

A clear legal provision on the powers of the private bailiffs with regard to public claims should be

implemented in ALPES.

4.1.2. The legal framework pertaining to the organization of the Chamber

For a successful reform of the enforcement system it is important that a strong and professional

organization (Chamber) is established. It is the Chamber that needs to set the standards for the

profession. For this reason compulsory membership is important. However ALPES does not explicitly

refers to such a compulsory membership: article 23 ALPES states that bailiffs are organised at

country level through professional representation in the National Chamber of Private Judicial Bailiffs.

This Chamber (article 24 ALPES) is composed of private bailiffs who are provided with the licence by

Minister of Justice.

We suggest to explicitly mention in the law the compulsory membership of the Chamber. This may

also solve the problem of the inactive licenses (see paragraph 4.1.5)

The Chamber is responsible for the promotion of the profession, the professional development of

the bailiffs, attends the functioning of the bailiffs and gives opinion about draft laws and regulations

relating to the profession of private bailiff. The legislator intended to create a self regulating

Chamber that supervises the profession.

In 2009 BERP organised a regional (Western Balkans) workshop on the aim of a national professional

organization. One of the conclusions of the workshop was that a professional association should

demonstrate:

Efficient governance and operations;

Responsiveness to customers and members;

Financial self-sufficiency;

High ethics and accountability; and

Long-term strategic thinking and planning.

6 Like Albania, Bulgaria also has a two-track system. Art 2 par 2 of the Bulgarian LPEA reads: “ The State may also assign to the private enforcement agent the collection of public claims.”

It is clear that these objectives require a well-organized structure, staffing and budgeting, and the

realization of board members of their responsibilities as managers and leaders of the profession.

So far, the above-mentioned objectives are not achieved. At the same time we conclude however

that the new board is very active in this field and already important steps were taken towards the

professionalization of the private bailiff organization.

4.1.3. The drafting of secondary legislation

In article 25 ALPES the Chamber is given certain competences to regulate the profession.

We were informed by the Chamber that there is a necessity to adopt several of the bylaws, i.e. the

Code of ethics, the Model Contract, the Fee schedule. Further the regulation on the ongoing training

needs adjustment (presently there is no disciplinary sanction in case the private bailiff does not meet

the obligations on ongoing training).

The issuance of those normative acts is of importance to maintain sustainability. Article 25 ALPES

forms the basis. In order to fulfill those tasks the Chamber should act as a self-governing body. All

bailiffs are a compulsory member of the Chamber so through such self-governing power the

Chamber is able to regulate the profession.

In our opinion the regulative power of the Chamber is too limited since it only empowers the

Chamber to adopt the Statute, the Code of ethics and other general enactments of the Chamber that

govern the organisation and operations of the Chamber, the election of Chamber bodies and other

issues of relevance to the work of the Chamber. Provisions regulating the adoption of bylaws are

missing completely in ALPES. In future these bylaws, regulating the profession, will become more

and more important. The system of monitoring and control as proposed in this report (see chapter

11) also highly depends on a Chamber with regulating powers.

4.1.4. Bailiff and enforcement service?

As already mentioned, Albania nowadays has a two-track system: in 2001 a system was adopted

where enforcement was put under the authority of the Ministry of Justice. On 11 December 2008

Albania, in addition, adopted a new law, introducing a parallel private enforcement system.

In ALOBS the organizational structure of the Public Judicial Enforcement Service is described (see

also art 3 ALPES). Obviously Albanian legislators had this law in mind when developing ALPES: in line

with the ALOBS, Chapter 2 of ALPES refers to the Private Enforcement Service.

In our opinion these provisions are unnecessary and might cause lack of clarity on who has the

power to perform the enforcement actions: ALOBS describes the organizational structure of the

enforcement through public servants. However such a similar organizational structure is not

established when it comes to private enforcement. This is performed by certified persons (article 4

ALPES).

According to article 4 paragraph 2 ALPES the enforcement services may also be provided by

commercial companies. Obviously the legislator intended to create enforcement power to those

companies in addition to the powers given to the individual PB:

art 4 par 2 ALPES states that enforcement services may also be provided by companies;

art 5 par 1 ALPES confirms this position: the independent position of public nature is “exercised

by private judicial bailiffs and private enforcement companies”;

art 5 par 2 ALPES refers to the enforcement agencies “ in exercising their tasks”;

art 7 ALPES refers also to the private enforcement agencies exercising “ their procedural tasks in

the territory of the Republic of Albania”;

According to art 4 paragraph 2 ALPES these companies are licensed in accordance with the Licensing

Law and all provisions relating to the private judicial enforcers also relate to those companies.

When we look at international standards, Rec 17/2003 refers to the bailiff as a person authorised by

the State to carry out the enforcement process, irrespective of whether that person is employed by

the State or not. This definition is based on best European practices where the private bailiff is

considered an independent professional – a person to whom the state assigns enforcement

execution of private or public receivables. He is independent and while performing his functions he

is governed by the law only.

Indeed: some countries (like the Netherlands) enable the private bailiff to establish a company or

bailiffs to create a partnership. However: the power to enforce remains with the individual private

bailiff and is not delegated to the partnership or company.7

ALPES is unclear in this respect and from the interviews it also became clear that in practice misuse

is made from this unclarity. We recommend adjusting the provisions regarding the establishment of

a company or partnership: the powers remain to the private bailiffs individually (and consequently

those individual bailiffs are given a license and not the company or partnership). 8

4.1.5. Number of bailiffs

At this moment the Ministry of Justice has issued 230 licences. However, only 165 persons seem to

be active as bailiffs. The Chamber does not have any insight on those persons that have a license but

are inactive: except for the names, no further details are known.

According to Art. 24 ALPES, all licensed private bailiffs are a member of the Chamber (“consists of

bailiffs who obtained a license from the Minister of Justice”). In practice however only those private

7 See e.g. art 30 Bulgarian Law: Art 30: Partnership Between Private Bailiffs Private bailiffs may become partners and act jointly under the condition specified for a civil company in accordance with Art. 357 – 364 of the Law on Obligations and Contracts. In such cases they shall keep both separate archives and a common archive and a joint accountancy. 8 This also seems more logical. See for example article 45 ALPES referring to the liability of the private bailiff (and not referring to the legal entity of such private bailiffs)

bailiffs that are active are registered as a Chamber member. Despite several requests so far the MoJ

did not inform the Chamber on the full list of licensed private bailiffs.

According to articles 32, 37 and 39 ALPES the private bailiff has to meet certain obligations. Non-

active bailiffs do not meet those requirements and in our opinion this is a reason to withdraw such

licenses. Such withdrawal is also in line with other provisions, see for example article 22 paragraph 3

ALPES: within one year after the suspension period ended, the suspended bailiff will need to request

resumption of activity or will be erased from the register of private bailiffs.

5. Structural and organizational aspects

5.1. Organizational structure of the Chamber

The National Chamber of Bailiffs is organized under the provisions of the Law No. 10 031 of

11.12.2008 for the Private Bailiff Service (Amended by Law no. 10137 of 11.5.2009 and Law no.

36/2012). The Chamber is the professional association, established on 9th October 2010.

Membership in the organization is obligatory, although it was indicated that there are some

difficulties identifying the members in relation to licences issued by the Ministry of Justice but not

active. The Ministry of Justice has issued 230 licences, they report 165 active bailiffs, while for the

inactive ones only names are available, no address, nor contact information. According to Art. 24 of

the Law on Private Bailiff Service, all licensed PB are members, although in practice only the active

ones are registered as Chamber members.

The Statute of the Chamber, provisioned in Art. 28 of the Law for the Private Enforcement Service,

was adopted on 21st February 2015. Article 4 and other provides that all licensed bailiffs have the

obligation to pay their membership fees, no attempt was made to collect those fees and the

Chamber even experiences difficulties in collecting the dues from the active bailiffs. It is reported by

the General Secretary that some 15 members refuse or cannot pay their membership fees. This

creates financial difficulties and risks for the organization and is an additional burden that should not

have to be experienced.

The Chamber is about to celebrate its 5th anniversary in October of this year, although from an

institutional building point of view it looks like it has just started its operations. This is mainly due to

the change of management and the fact that the previous more than four years the Chamber has

been idle. There is a clear disconnect between the previous and the new Chamber leadership. Since

its inauguration in 2010 no major developments have occurred in the organization, nor is there any

record or report on the activities. The present Board has undertaken significant efforts to change

and improve the situation. For the last six month a number of activities have been initiated.

A number of documents have been drafted. Among them the Statute of Performance and Exercise of

Bailiff Activities has been developed and shared with the members. It covers the stages of the

enforcement process and is an attempt to streamline enforcement practices. It is further broken into

modules to serve as practice standards. This represents a good beginning for the efforts to unify the

practices of bailiff. More endeavours are necessary in this area in order to ensure the professional

development and professional standards.

From November 2014 to July 2015 the Board has issued 3 more regulations: on the General

Assembly, on Holding Auctions and on Complaints Procedures. None of those have been reviewed

by the experts due to the lack of an English translation. The work of the Board extends further to the

development of three directives: on the Implementation of the explanatory document of the

General Directorate of Taxation, on the Temporary Wage Order and on the Unchanging Value of

Monitory Obligations.

On the other hand, no policies governing the work of the National Chamber have been developed.

The efforts were concentrated on drafting a new Statute and a draft Code of Ethics and the rest of

the work remains unregulated. To some extent more detailed rules exist, according to the Assistant,

although the experts have not had the chance to review them, with respect to organizing the

General Assembly. It might be due to the fact that the management is new and has not yet felt the

need for developing internal rules but it is essential to have those in place as soon as possible.

Drafting internal governing regulations for the work of the General Council, Disciplinary Committee

and member servicing among others are areas where the Twinning Project can provide support and

expertise.

The consultants also recommend targeted efforts to connect and unite the membership, so that a

sense of community is created and the support of all private bailiffs is secured.

5.2. Bodies of the Chamber

According to Art. 26 the General Assembly of PB and the General Council are the governing bodies.

The General Assembly is provided to convene minimum once per year. The situation at present is

unique where there have been three general assemblies in six months. The first one held on 1st

November 2014 elected the new Chamber management, following a very competitive process - 5

candidatures were presented. Every candidate has prepared a programme for the development of

the Chamber.

The organizational structure as provided within the law is confusing for the outside world and the

coming set of proposals for amending the law on the private bailiffs provides an opportunity for its

revision.

5.2.1. General Council

New Board was elected in 1st November 2014 by the General Assembly and the members of the

Council were approved in their present state as shown in the website:

http://www.nchb.al/eng/chairman-board-directors/. The new leadership tends to meet as often as

needed and possible, at least once per month and works as a collegial body.

Members of governing bodies of the Chamber are very motivated and eager to work for the

development of the profession and they have the potential to accomplish big achievements with

respect to the organizational development of the Chamber.

Consultants recommend that members of the governing bodies of the Chamber undergo a training

for broadening their awareness as organization managers. It is a best international practice to

distribute the tasks among each other in clear portfolios, such as Legal Issues, Institutional Contacts,

Financial Matters, Training, International Relations, etc.

5.2.1.1. Strategic Planning

The overall strategy of the Chamber has been discussed several times since the inauguration of the

new Council. Members of governing bodies share the vision that the Chamber is a professional and

empowered organization leading its members to a constant professional development to fullfill "the

ultimate goal of justice" - an efficient and effective enforcement process.

Based on the President's strategic programme document, the Board developed with collective

efforts a strategy for the development of the Chamber. This document has not yet being shared with

the team of consultants conducting the mission but the general understanding and consensus is that

it would be revisited during the Twinning Project duration to produce a comprehensive strategy for

development.

In the meantime, in line with the broad government reform of the justice sector and by coincidence

parallel to the efforts of creating a streamlined government strategy for the development of the free

legal professions, the team of consultants assisted in strengthening Chamber input in the document.

Previously the Chamber has participated in the working group, preparing the document for

submission to Parliament. Coordinating with the EURALIUS mission and working together with

Chamber Council leadership, the team of consultants prepared the draft strategy document,

submitted it for discussion and it is now ready to be sent to the Parliamentary Committee working

group, expected to be passed by the end of Parliamentary session, straight before the Parliamentary

vacation.

Strategic planning process needs strengthening. Twinning Advisors will work closely with the

leadership of the Chamber to clarify objectives and produce a triennial strategy document and

business plan.

5.2.1.2 Management

The style of managing the Chamber has changed with the election of the new Board and President.

Unfortunately, there is no institutional memory but a new culture of active and open

communication with the membership as well as the outside world is in the process of establishment.

For the first six months there has been positive developments and notable efforts to improve the

environment. Being still new to the profession and most of them to the operations of the Chamber,

Council members preferred to work together, learn and support each other. Still there is no

separation of powers, nor different portfolios assigned to Council members.

A slight specialization has started, based on the natural preferences and competences of Council

members.

The consultants recommend that all management board and position holders should undergo a

continuous training for NGO or membership association management and building capacities for

good governance of the Chamber.

Although the majority of Board members are engaged with the cause, the burden is mainly on the

President, Mr. Tedi Malaveci. As capable and dedicated as he is, it is not possible for one person to

represent the Chamber in all efforts to turn it into a proactive working organization of PB. According

to the assistant Mr. Malaveci spends 70% of his time in the Chamber office. So far Mr. Malaveci has

managed to organize the support for signing 4 cooperation memoranda with different government

institutions and prepare 2 important position papers. Twinning experts have expressed concerns for

the sustainability of the level of involvement and dedication and extended a friendly reminder of the

threats of burn-out and handling stress.

Consultants recommend that a portfolio management principle is introduced in the Chamber and an

equal distribution of tasks and assignments to all governing body members is practiced. Training

initiatives such as management, motivation and delegation will also assist in the transferring

process. President and Chair should attempt to practice efficient delegation.

With regards to the frequency of General Council meetings, five meetings were held and minutes

kept. A summary of the decisions taken during these meetings was posted on the website of thе

national organization. To improve follow up on decisions and actions, consultants recommend that a

tracking form is introduced to keep an account of tasks and actions and their implementation,

deadlines and responsible person. This is a simple tool to check progress and status of decisions

taken by the General Council.

5.2.2. Supervisory Committee/Council

Currently there is no body organized, nor even a person tasked with the assignment to supervise the

work of the General Council. A special body should be established to perform this important

function.

When the old Board changed, the new one did not receive any reports, nor papers certifying the

financial and organizational position of the Chamber. Such practice disrupts continuity and is

potentially dangerous for the organization. Instead of that, consultants recommend that a

supervisory function is organized and implemented. If not together with the proposed amendments

to the Law governing the Chamber organization, then as a part of the bylaws.

It is still difficult to understand from an international best practices point of view the need to have

the figures of President, Vice-President, General Secretary and Chairman of the General Council,

especially lacking the clear description of their respective roles and responsibilities. It has been

explained to us that this represents a normal practice in Albania and the model is followed by the

majority of companies. While this could be accepted as an argument, the need to a monitoring body

has to be understood and not mistaken with the role of the auditor, or the accountant - the financial

specialists who verifies the bookkeeping of the organization.

5.3. Chamber premises

Consultants were positively surprised to see the new premises of the Chamber. They moved to the

new location aty the end of January 2015. Offices are modern, fresh and well-equipped. Besides the

cabinet of the President and a big working area, which could easily sit 6 people/ working stations,

there is a big meeting room, where Chamber Council meetings are regularly organized. Only for the

purposes of holding the General Assembly the Board has preserved the right to use as venue the big

hall of the Ministry of Justice.

Private Bailiffs are reported to visit the premises on a regular basis - first, out of curiosity to see

where the new Chamber management is located and then because they like the atmosphere and

feel welcome. Twinning project office is also accommodated in the Chamber premises. RTA, RTA

assistant and interpreter are located there.

6. Chamber Staff and HR Policy

With the new management and acceleration of the work, the administration of the Chamber is also

strengthened. The Chamber has currently an administrative staff of 2 people, both administrative

assistants. One assistant, Ms Luliana Sharra has been working for the Chamber for more than 18

months now. She keeps the records, minutes from Council meetings, announcements on the

website and files of the Chamber and assists the president.

Besides the assistant, the Chamber has service contracts for an IT specialist, accounting and cleaning.

Consultants could not help but notice the lack of an administrative director in the organization, a

person dedicated and self-driven to pursue the establishment of the Chamber.

6.1. Selection and Appointment

A thorough process of selection and appointment of two additional employees of the Chamber was

carried during the last couple of months. Candidate profiles and job descriptions have been created

and what is more important is that those reflect realistically the jobs described. The positions - an

assistant and a lawyer - were advertised in the local newspapers and provoked a considerable

interest. As a result, a new assistant was hired and is currently under training, on the job training is

performed by the other assistant. Ms. Bleriana Hoxhaj Konesha was interviewed by the consultants.

The lawyer position is shortlisted and is expected to be filled by the end of July 2015.

Chamber HR policy is carried out professionally, though hiring a director seems to be a priority,

judging by former experience with similar institutions. The lawyer position was justified by the

necessity to constantly write and review legal documents. The message consultants keep exchanging

with the leadership of the organization is that the Chamber is only as strong as its members want it

to be and could be whatever they desire it to be, as long as managers keep their focus and targeted

efforts.

6.2. Remuneration

According to the assistant, interest in the advertised positions was high. Consultants tried to analyse

the reasons for the big interest and number of candidates for the opened position. Remuneration

seems to be within the reasonable limits at market levels and the fact that there are little

opportunities for young legal professionals hugely contributes to the success of the selection.

Concerning remuneration, the consultants have recommended that all Chamber management

positions are paid. While there is an understanding of the feeling of uneasiness shared by the

members, at the same time the good business practice demands that dedicating long working hours

was compensated accordingly and it is a matter of principle and mutual respect to receive

remunerations. This will set up the standards for future boards to come. The present

recommendation does not at all have to be considered in absolute terms, one possibility is to

introduce adequate compensations for members of the governing bodies of the Chamber and vote

that they will not be received.

6.3. Career perspective

The present assistant, Ms Luciana Shipp is leaving to pursue a post graduate degree in Law, aspiring

to specialize in Public Law and working with children. She has already grown in the organization and

has managed her duties with care and precision. Ms Luciana is highly valued by her managers and it

will be a loss for the Chamber to see her go. On the other hand, Ms Blerina has the potential to be a

worthy replacement. She has graduated Albanian language and literature and can efficiently deal

with the communication issues in the Chamber, assist the President in the daily operations, as well

as prepare and maintain publications on the Chamber website.

Consultants can see the administrative assistant covering the administration as well as the PR

function for the time being. Considering the lack of financial resources to increase the staff, it could

be recommended that the lawyer who is expected to be hired in the nearest future will not simply

play the role of another assistant but besides being tasked with legal drafting, also assume the

responsibilities of a director, where he/ she is driving change in the organization and leads initiatives

to make the National Chamber a key stakeholder in the enforcement process.

Being a relatively new organization, the Chamber provides for the opportunity to develop its people

and broaden the scope of responsibilities by introducing new services to the members and assuming

broader responsibilities to the general public.

7. The Financial management of the Chamber

7.1. Budgeting versus membership fee

The new Board of the Chamber is very active and undertaking initiatives to establish a professional

organization. No decisions were made yet on the financial self-sufficiency. In the past the Chamber

largely depended on the financing of its activities through Euralius and (until 2011) the BERP Project.

A long term strategy and planning was not yet developed. However it is obvious that the Chamber

will be confronted with substantial investments: the case management system needs further

updating and improvement; interoperability of the case management system with the registers on

assets needs to be developed; the system of monitoring and control needs to be implemented, a

system of ongoing training (and initial training) needs to be developed.

This means that substantial contributions from the members are necessary.

A system for financial contributions needs to be developed. Research needs to be done to examine

the needs for investments versus the different systems and the financial burden on the members:

either a fixed fee, or a fee based on the turnover of the private bailiff or a mixture of these

possibilities.

7.2. Financial bookkeeping - in house or outsourced

One of the questions that need to be answered is either to outsource the financial bookkeeping or

toe have financial experience in house.

At first sight outsourcing seems more interesting, taking into consideration the knowledge and

experience that is necessary to have such a function in house. A financial manager will be rather

expense and a burden on the Chamber’s budget. Question also arises if this would be a full time

function.

A further analysis of the two options is necessary.

8. Services provided by the Chamber

Before identifying the concrete service of the Chamber to its members as well as the general public,

it should be mentioned that although the Chamber exists now for five years, it seems that hardly any

of these services were well developed under the previous leadership. It seems that only since the

new leadership too up their responsibilities as of November 2014, that the Chamber started to

develop these services in a serious manner. As such, it might still be quite early to give a thorough

assessment of these services and the way they are valued and perceived by the recipients of these

services. The services of the Chamber are guided by the Law on PB’s. In line with article 25 of the

Law on PB, the competences of the Chamber of Private Bailiffs are the following:

a) ensure implementation of professional and ethical criteria to be abided by PB’s during the

exercise of their function;

b) issue normative acts regarding the activities of PB’s;

c) supervise the exercise of the profession of PB’s;

d) elect the executive bodies of National Chamber of Private Bailiffs;

e) draft the model of the contract to be concluded between the PB and an interested party, prior to

the commencement of execution procedures;

f) set the fee to be disbursed by the PB’s to the account of the National Chamber of Private Bailiffs;

g) represent the PB’s in relation with Ministry of Justice, other public administration bodies and

international bodies.

8.1. Services to the members of the Chamber

Representing the professions vs. third parties

An important task for the Albanian Chamber of Private Bailiffs, like any professional national

organization for judicial officers, is to represent the profession of PB’s versus third parties. This

representation is being implemented by the Chamber leadership in various ways. First of all, as

representatives of the PB’s the Chamber president, vice-president, secretary-general and members

of the board of directors participate in negotiations and discussions with the government on issues

concerning the PB profession, like e.g. on the fee schedule. Secondly, the president of the Chamber

has circulated a number of letters to third parties (like e.g. association of banks) in order to inform

these potential creditors on the main features of the PB system and make proposals for cooperation

in the future. Thirdly, the Chamber leadership represents the profession of PB’s in working groups

and discussions concerning possible legislative changes affecting PB’s and their work, as e.g. the sub-

group on legal services and free professions of the Ad-Hoc Parliamentary Committee on Justice

System Reform.

Setting professional standards and providing operational tools

A second important task for the Chamber is to provide guidance to and monitor the observance of

professionals standards for the profession. As such the Chamber issues by-laws and regulations

which are obligatory for all PB’s, like directives, and provides model documents to be used, like the

model contract between a PB and his/her client. An important document to be mentioned in this

context is the Statute of Performance and Exercise of Bailiff Activities. The objective of this

document is to discipline the procedural actions of private bailiffs and the creation of models to be

used by the bailiff during an enforcement procedure. In this context also the professional training to

PB’s should be mentioned. More details about this training can be found in chapter 9.

Providing Infrastructure for PB’s work

Finally, it should be mentioned that through the Chamber access for PB’s to a number of registers

was organized (Civil Registry and Registry of Real Estate) whereas access to more registries is under

negotiation (Motor Vehicle Registry and Creditor/Loan Registry). Secondly, as the Government

supported ALBIS system does not function properly, the Chamber developed its own case

management system SIAIP which can be accessed through the Chamber website.

Most of the mentioned information and documents for the PB’s can be found at the Chamber’s

website and is circulated among members by e-mail. For this and other purposes all Chamber

members have an e-mail account: [[email protected]].

It should be mentioned that for these services, the members of the Chamber are obliged to pay an

annual membership fee (for active PB’s) of 40.000 LEK (equal to around € 280,00).

8.2. Services towards the general public

As far as services towards the general public are concerned, these have to be divided into two types

of service. One is of a more general nature and the second service is more for those involved in

enforcement proceedings as debtors or creditors.

Provision of information on the PB system

On behalf of the PB’s, the Chamber is informing the general public about the main features of the PB

system. First of all, the Chamber is providing information about the PB system and the Chamber

through the website of the Chamber: www.nchb.al. The website in Albanian and partly in English is

providing information on the structure of the Chamber and the operation of the PB system. Through

the website the potential clients can also find all PB’s through the Register of PB’s. Besides the

website, representatives of the Chamber also participate in public events to represent the Chamber

and provide the PB’s views on relevant topics. An example of such an event was the III Albanian

Financial Forum on 25 June 2015 at which Chamber representatives participated.

Dealing with complaints in enforcement proceedings

In accordance with the Law on PB’s a procedure is to be established for handling complaints

of debtors or creditors in enforcement proceedings. In case of such complaints the

respective debtor or creditor may turn towards the Chamber with the request to deal with

such a complaint. Not much practice is present to that respect and this function of the

Chamber needs to be developed. In line with best professional practices, a streamlined

procedure for handling complaints needs to be in place.

http://www.nchb.al/

9. Professional Development and Training

This function of the Chamber needs to be strengthened. Not much was done in this respect during

the last nearly five years of its existence. It is key in pursuing the strategic objectives and mission of

the organization. The Twinning project is going to support the organization to develop a full-fledged

training strategy and plan.

9.1. Legal education

Establishing the level of legal education has never been the objective of this effort but during

discussions with private bailiffs it has been confirmed that the subject of enforcement of judgements

has been ignored for a long time by the legal faculties and not even a separate discipline in law

school. The knowledge of Law Faculty's graduates is very basic, hence the idea of the National

Chamber to create a School of Judicial Bailiff. While this is a long-term objective, a number of

immediate steps need to be undertaken to improve the training function.

A Training Needs Assessment will be carried out by Twinning experts in September to initiate the

training and professional development options provided by the National organization.

9.2. Initial training

The only initial training provided by the Chamber until last elections was in 2010, funded by the

BEPR Project and was focussed on the business and entrepreneur aspects of the then new

profession of private bailiff. Followed by two trainings on enforcement procedures in 2014,

according to the information provided by the Chamber assistant. Prior to her appointment, no data

is available. She reports that these trainings were attended by roughly 60 people, about 1/3 of the

membership, although they were free of charge for Chamber members and obligatory.

Five members of the Chamber underwent a TOT programme under the EURALIUS III mission and

were certified by it. By Decision of the Board two members of this body were charged with the task

to provide a list of training topics.

Recently, at the beginning of June, some training was given to the new bailiffs on the Statute of

Performance, 16 recently licences colleagues were trained by Mr. Alban Ruli and Mr. Fabio Isufi. No

feedback was collected.

Considerable efforts were spent by the new Board on developing the so-called Modules, or detailed

step-by-step procedure guidelines, similar to process maps. All 55 Modules are to be found on

Chamber website. Together with the developed Statute of Performance and Exercise of Private

Bailiffs, or Statute on Enforcement Procedures adopted on 21st February 2015, these represent an

attempt to unify and streamline enforcement practices and introduce some professional standards.

The Statute has mandatory characteristics and should be properly implemented.

Further work on the implementation of standardized enforcement practices is recommended.

9.3. On-going training

Although current regulations provide for two obligatory on-going trainings per year, in practice this

requirement is not imposed. No one monitors if the obligation is fulfilled, nor is the Chamber

offering options for keeping it up. As part of the inspections check list, the role of monitoring in

general, as well as in particular with regards to permanent training has been given to the

Inspectorate at the Ministry of Justice. Since there is no capacity there, it is recommended that the

Chamber assumed this function, together with the overall responsibility for training the private

bailiffs. It is within the best Chamber interest to offer a broad and comprehensive training

curriculum.

9.4. Training Needs Assessment

A thorough Training needs Assessment will be carried out in September, as a result of which a

Training Plan will be developed.

9.5. Training strategy

Training strategy is an integral part of the overall Chamber strategy. It will be developed and

reviewed in line with the strategy of the organization and based on the results of the TNA.

9.6. Organization of training

Organization of trainings, seminars and other educational initiatives is a desired objective but it is

not a goal in itself. It should be provided on a systematized and well-structured basis, following a

unified methodology and upholding the highest professional standards. Selection and preparation of

trainers should be conducted in compliance with best European practices, as well as the

development of manuals, training materials and commentaries on the Enforcement law. The current

trainers, trained by the EURALIUS Project should contribute to the organization of seminars and also

use of the existing expertise within the Chamber Board - a number of the people in the leadership

have prior experience in teaching in Universities and a good knowledge of the enforcement

procedures. The training process should be concluded by collecting feedback from the participants

on the usefulness and applicability of offered training topics and methods of delivery. A structured

assessment of the trainings provided by Chamber should be carried out including retention surveys

and testing materials. The creation of a library and on-line data base including jurisprudence is a

good practice. Training of administrative staff, both Chamber management and private bailiff's office

employees should not be left out but carefully provided for.

10. Ethics, disciplinary proceedings against Bailiffs

10.1. Ethics and professional conduct

10.1.1. International standards

Rec 17/2003 explicitly refers to the professional conduct that may be expected from an bailiff:

IV.2. Enforcement agents’ status, role, responsibilities and powers should be prescribed by law in

order to bring as much certainty and transparency to the enforcement process as possible. States

should be free to determine the professional status of enforcement agents.

IV.3. In recruiting enforcement agents, consideration should be given to the moral standards of

candidates […] .

IV.4. Enforcement agents should be honourable and competent in the performance of their duties

and should act, at all times, according to recognised high professional and ethical standards. They

should be unbiased in their dealings with the parties and be subject to professional scrutiny and

monitoring which may include judicial control.

CEPEJ (2009) 11 REV in its Guidelines describes into more detail the contents of such a Code of

Ethics:

38. Enforcement agents should be subject to clearly stated rules of ethics and conduct, which could

be set out in professional codes of conduct. These Codes of conduct should inter alia contain

professional standards regarding:

Information to be given to parties by enforcement agents concerning the

enforcement procedure (grounds of action, transparency and clarity of costs, etc.)

The rules governing the formulation of notices to parties (enforcement agents' social

role, duty of advice, etc.)

Professional ethics (behavior, professional secrecy, ethical criteria governing the

choice of actions, etc.)

Smooth enforcement (predictability and proportionality of costs and lead-times, co-

operation between enforcement services, etc.)

Procedural flexibility (autonomy of enforcement agents, etc.)

The bailiff is able to perform certain actions, based on his/her training and appointment that the

general public cannot. The bailiff is delegated a certain state power. This means that it is important

to lay down how this power and authority is used in service to the creditor, the debtor and society.

In order to preserve exploitation of the creditor or the debtor and to preserve the integrity of the

profession bailiffs the code of conduct plays an important role. The code of conduct, the code of

ethics draws a standard of conduct to ensure that every bailiff meets those standards, by disciplining

if they do not meet those standards or do not practice accordingly.

Another reason for the development of such a Code is the fact that the bailiff has a complete

monopoly on civil enforcement. To avoid private justice and to maintain the public’s trust in the

profession it is important that the performance of the duties of the bailiff is well observed and that a

disciplinary committee can impose sanctions.

At the same time professional ethics encompasses a much greater part of the professionals life. “If a

professional is to have ethics then that person needs to adopt that conduct in all of his dealings.”9

The validity of the Code of Ethics needs to be guaranteed. This means that either the profession

itself, through the Chamber, or through the Government, needs to ensure that such a Code has

binding force.

Regarding the Code of Ethics we have to take into consideration that a Code of Ethics is not the same

as the disciplinary rules that are enforced by the government with respect to its officials. This “law in

the hands of the government that orders” has to be distinguished from the disciplinary rules within

the professional groups, that is in that sense special, because it is not based on prerogatives that are

characteristic for the authority to command. On the contrary, it is applied on an egalitarian

foundation with regard to the members of the groups, that have due to their profession, their

assignment, their professional status, what can be called “a reinforced autonomy” and the

disciplinary rules are supervised by equals of those that look for justice; “the only obedience that is

based on respect for common standards” 10.

10.1.2. Ethics and professional conduct in Albania

The aim of the Code of Ethics is to define accepted and acceptable behaviours and to promote high

standards of practice, to establish a framework for professional behaviour and responsibilities and to

provide a benchmark for members to use for self-evaluation. In that respect the Albanian Code of

Ethics should be considered as a part of the ethical framework, together with our proposals on the

professional standards and professional norms (see chapter 11).

In this respect it is strange that it is the Minister of Justice and not the Chamber who adopts the

Code of Ethics (article 10 ALPES). It is the task of the Chamber to ensure the implementation of the

professional and ethical criteria (article 25 under a ALPES).

Remarkable the Code of Ethics seems to focus on the professional activities of the private bailiff

only. In this respect we want to point at the CEPEJ 2009 Guidelines (80) stating that “Breaches of

laws, regulations or rules of ethics committed by enforcement agents, even outside the scope of their

9 Wikipedia on Professional ethics 10 MATRAY, C., “Le nouveau régime disciplinaire des magistrats”, J.T., 2000, 133; MARTENS, P., “La discipline des magistrats

en Belgique et les droits de l’homme”, Rev.tim..D.H., 1995, 175; VAN COMPERNOLLE, J., “L’évolution de la fonction de juger

dans les Ordres professionnels”, Public.Fac.Univ.St.Louis, 1983, 399.

professional activities, should expose them to disciplinary sanctions, without prejudice to eventual

civil and criminal sanctions”.

The Board of the Chamber indicated to us that a review of the Code of Ethics is necessary.

As in for example Bulgaria, Albania might consider the establishment of a Professional Ethics

Commission. In Bulgaria11 this Commission has the following powers:

Collecting, classifying, analyzing and summarizing information about the work and behavior

of the EAs, purposing to update and improve the application of the Code of Ethics.

Summarizing the existing professional practices by conducting interviews.

Making suggestions for improvement of the Code of Ethics on the grounds of the identified

practices of the EAs and the amendments made in the legal, organization, social and

economic framework of the profession.

Preparing annual report on its activity and submitting it to the Chamber's Council;

(Each member of the Committee) acting as a mediator, agent or arbitrator for settling

disputes between two or more EAs upon their written mutual consent, filed in the

Chamber's Executive Committee. The Statement on the actions performed regarding the

arbitration of the dispute, are drawn up and the Statement is signed by the Parties and the

arbitrator, and is provided to the Executive Committee.

10.2. Complaints and disciplinary proceedings

10.2.1. International standards

A complaint procedure refers to the internal (within the office) description of the procedure of

complaints against the private bailiff and his staff. Each office, as an integrated part of professional

standards, should have a description of such a procedure (see chapter 11).

A disciplinary rule is essentially a law that lays down rules that have to be respected and that

imposes sanctions when these are violated.

This means that disciplinary proceedings should also be in accordance with art 6 ECHR. In several of

its judgments the ECtHR confirmed this opinion. E.g. in the case Le Compte vs Belgium concerning

the medical practitioners Le Compte, Van Leuven and De Meyere against the Belgian State, the

ECtHR states that article 6 ECHR applies if the dispute dealt with by a disciplinary judge concerns

private interest, such as the right to work.

11 Article 58 and 59 Code of Ethics Bulgaria

Consequently disciplinary proceedings need to meet certain requirements:

1. independency

A typical element of disciplinary proceedings is the fact that a disciplinary judgment is often

performed by persons within the same profession group. CEPEJ (2009) 11 REV in Guideline

81 describes: “Disciplinary procedures should be carried out by an independent authority.”

2. Accessibility

This refers to different topics:

Who has access to the disciplinary proceedings: any individual with a justified reason

or should the complaint always be done through a “prosecutor”(e.g. the Ministry of

justice)?

Does a complainant have to pay a court fee for initiation of disciplinary proceedings?

Misuse of disciplinary proceedings should be prevented. Here I want to point at

CEPEJ (2009) 11 REV Guideline 81: “Member states should consider introducing a

system for the prior filtering of cases which are filed merely as delaying tactics.”

3. Efficiency of the disciplinary proceedings

4. Transparency

Again different questions need to be answered:

The disciplinary procedure,

The public nature of the court sessions and

The public nature of the decision.

5. Predictability

Regarding the disciplinary sanctions I want to point at CEPEJ (2009) 11 REV Guideline 82:

“An explicit list of sanctions should be drawn up, setting out a scale of disciplinary measures

according to the seriousness of the offence. Disbarment or "striking off" should concern only

the most serious offences (the principle of proportionality between the breach and the

sanction should be observed).”

6. Performance of the disciplinary proceedings and the sanctioning within a reasonable time

7. Right on defense

We already indicated that disciplinary proceedings are under ECHR. This means that also par.

3 a and b are applicable: the bailiff should be informed promptly, in a language which he

understands and in detail, of the nature and cause of the accusation against him and should

have adequate time and facilities for the preparation of his defense.

According to Rec 17/2003 (Principle IV.6) “Enforcement agents alleged to have abused their position

should be subject to disciplinary, civil and/or criminal proceedings, providing appropriate sanctions

where abuse has taken place.” It is obvious that disciplinary sanctions are additional to civil and/ or

criminal proceedings. An bailiff should not escape from any civil liability. The same is the case with

criminal transgressions, such as misappropriation of funds, forgery, abuse of authority, extortion,

bribery, and suchlike.

10.2.2. Disciplinary proceedings: Albania

Having a closer look at the Albanian provisions several remarks can be made:

1. Independency

According to art 51 ALPES the Minister of Justice establishes a Disciplinary Commission of

Private Judicial Bailiffs. The Disciplinary Commission consists of:

(a representative authorised by the )Chairman of the National Chamber of Private

Judicial Bailiffs

the Chairman of Steering Council of National Chamber of Private Judicial Bailiffs, in

the capacity of the member;

a lawyer assigned by the National Chamber of Lawyers (National Bar Association) in

the capacity of member.

Two representatives in the Disciplinary Commission are from the private bailiff profession.

We recommend introducing an independent disciplinary body, in line with the

Recommendations and Guidelines of the Council of Europe. As an example: in the

Netherlands (and other countries) the majority of the members are representatives of the

judiciary (3 judges) and the minority are representatives of the profession itself (2 bailiffs).

2. Accessibility

The proceedings are initiated by the Minister, either on his own initiative, or at the request

of the parties in the enforcement process (article 50 ALPES). Here the question arises: who

are meant with the parties in the enforcement process? Does this exclude other persons?

Does this mean that a complaint is always linked to a certain enforcement procedure?

3. The role of the Chamber

ALPES does not enable the Chamber to initiate disciplinary proceedings. This seems logical: it

is representatives of the `Chamber who are member of the disciplinary body. However:

according to ALPES (article 25) the Chamber will need to ensure the implementation of

professional and ethical criteria to be abide by the private judicial bailiff during the exercise

of their function and to oversee the exercise of profession of private judicial bailiff. The

question arises how the Chamber is able to protect and ensure those rights. The more as the

Chamber is unable to initiate disciplinary proceedings to (safe) guard this.

4. Preliminary suspension

Under ALPES it is impossible to suspend a bailiff awaiting a final disciplinary sanction.

However under certain circumstances such a preliminary suspension might be justified.

Below is a reference to a provision from the Dutch law, enabling the disciplinary body, or the

Minister to undertake such an action:

Article 38

1. The Disciplinary Committee shall be authorised, whether or not at the request of

our Minister, to suspend a judicial officer against whom grave suspicion has arisen

that he has committed one of the acts or omissions referred to in Article 34,

paragraph 1, for a period of six months maximum, pending a decision. The

Disciplinary Committee may extend this period once for another period of six months

maximum or until a decision on the recommendation for discharge has become final.

The Disciplinary Committee may lift the suspension at all times.

2. The secretary of the Disciplinary Committee shall forthwith inform our Minister

and the judicial officer concerned of a suspension as referred to in paragraph 1 and

of a decision to extend or lift the suspension.

3. The judicial officer concerned shall be heard about the intention to suspend him.

4. In the event that the Disciplinary Committee, further to the acts or omissions

referred to in Article 34, paragraph 1, decides to impose suspension for a specific

term, it may reduce that term by the period of suspension under paragraph 1.

5. Paragraph 1 shall apply mutatis mutandis if criminal proceedings have been

instigated against a judicial officer with regard to a criminal offence and the criminal

offence also affects the exercise of the office of judicial officer.

6. Within thirty days after the notification referred to in paragraph 2, our Minister or

the judicial officer concerned may file appeal by means of a notice of appeal with the

Court of Appeal of Amsterdam. The appeal does not suspend the decision at which it

is directed.12

5. Statute of limitations

No statute of limitations for initiating the disciplinary proceedings after the learning of the

violation is mentioned in ALPES.

12 Art 34 par 1: The judicial officer shall be subject to disciplinary proceedings with regard to acts or omissions contrary to any provision laid down by or pursuant to the law and with regard to acts or omissions not befitting a proper judicial officer or candidate judicial officer.

10.3.Disciplinary sanctions

The list of disciplinary violations in article 52 ALPES is rather limited. In practice this leads to

complications (e.g. non fulfilment of the obligation for ongoing training is not sanctioned this it is not

listed in article 52 ALPES).

We propose a more detailed list that includes:

1. Knowing concealment of legal obstacles to their appointment;

2. Performance of activities incompatible with the reputation, behaviour, honour and

independence of a bailiff;

3. Repeated commission of disciplinary violations prior to the deletion of the imposed

measure from the records;

4. Taking actions in proceedings, despite the existence of reasons for dismissal;

5. Breach of confidentiality;

6. Excess of powers conferred by law;

7. Charging of higher performance fees or reimbursements than prescribed or soliciting

creditors by promising a reduction of fees through inappropriate means;

8. Employment in public office, administrative or supervisory office, or engagement in

a commercial company or public institution or the activities of a notary public,

mediator or lawyer, trade or intermediary activities, or practicing a profession that is

contradictory to the reputation, honor or independence of a bailiff; making of deals

under his own name on behalf of another person or making of deals under another

person’s name for his own behalf, or being a party in transactions in which he also

acts as a bailiff, investing money placed in his custody in his own name contrary to

the provisions hereof, if he assumes guarantee or liability in transactions in which he

is involved in his capacity as a bailiff;

9. Inaccurate book and record keeping or negligence towards running the office;

10. Conduct of proceedings in a language that is not officially used;

11. Handling of assets and funds in proceedings in contravention of the law or the

authorisation of a party;

12. Non-compliance with the professional standards;

13. Refusal to deliver information necessary to carry out the monitoring and control

function;

14. Public disclosure of the personal, family and financial circumstances learned during

the performance of EA activities;

15. Failure to pay contributions to the CHAMBER for three consecutive months or six

months intermittently in one calendar year;

16. Refusal to engage in professional advancement without good cause;

17. Breach of duty under other regulations.

10.4. Disciplinary body

The Disciplinary Committee can hardly be considered independent in case the Body has a majority of

representatives from the profession itself (see paragraph 10.2.2. under (1) independency). It is

recommended that amendments are made in the ALPES to ensure an independent review of

disciplinary claims.

10.5. Liability

According to art 45 ALPES the bailiff bears responsibility for the actions and for breaches of the law.

When we have a closer look at the European standards both Rec 17/2003 and the CEPEJ (2009) 11

REV Guidelines make a distinction between disciplinary, civil and criminal liability:

Guideline 80: “ Breaches of laws, regulations or rules of ethics committed by enforcement

agents, even outside the scope of their professional activities, should expose them to

disciplinary sanctions, without prejudice to eventual civil and criminal sanctions.”

In addition there is also the responsibility of the bailiff for unnecessary enforcement costs:

Guideline 57: “ It is the responsibility of the enforcement agent to take all reasonable and

necessary steps in enforcement and to decide which enforcement action is most appropriate.

Where costs are considered irrelevant or wrongfully incurred these costs should be borne by

the enforcement agent”.

In art 45 ALPES we suggest to implement Guidelines 80 and 57.

11. The performance, monitoring and control system

11.1. International standards

According to Rec 17/2003 (principle IV.4) “Enforcement agents should be honourable and competent

in the performance of their duties and should act, at all times, according to recognised high

professional and ethical standards. They should be unbiased in their dealings with the parties and be

subject to professional scrutiny and monitoring which may include judicial control.”

CEPEJ (2009) 11 REV in several Guidelines underlines the importance of monitoring and control:

“75. In order to undertake quality control of enforcement proceedings, each Member State should

establish European quality standards/criteria aiming at assessing annually, through an independent

review system and random on-site inspection, the efficiency of the enforcement services. Among

these standards, there should be:

a. Clear legal framework of the enforcement proceedings establishing the powers, rights and

responsibilities of the parties and third parties.

b. Rapidity, effectiveness and reasonable cost of the proceedings

c. Respect of all human rights (human dignity, by not depriving the defendant of a minimum

standard of mere economic subsistence and by not interfering disproportionally with third

parties’ rights, etc.)

d. Compliance with a defined procedure and methods (namely availability of legal remedies

to be submitted to a court within the meaning of Article 6 of the ECHR)

e. Processes which should be documented

f. Form and content of the documents which should be standardized

g. Data collection and setting up of a national statistic system, by taking into account, if

possible, the CEPEJ Evaluation Scheme and key data of justice defined by the CEPEJ

h. Competences of enforcement agents

i. Performances of enforcement agents

j. The procedure, on an annual basis:

• the number of pending cases,

• the number of incoming cases,

• the number of executed cases

• the clearance rate,

• the time taken to complete the enforcement

• the success rates (recovery of debts, successful evictions, remittance of amounts

outstanding, etc.)

• the services rendered in the course of the enforcement (attempts at enforcement, time

input, decrees, etc.)

• the enforcement costs incurred and how they are covered

• the number of complaints and remedies in relation to the number of cases settled.”

The transparency of the enforcement procedures is an important issue in the European standards:

“ In view of the importance of being able to foresee the length of enforcement proceedings from the

point of view of legal certainty, member states should consider establishing publicly accessible

statistical databases enabling the parties to calculate the likely duration of the different enforcement

measures possible in domestic legislation (i.e. attachment of salary, attachment of bank assets, and

attachment of vehicle). The databases should be compiled in collaboration with enforcement

professionals and should be made as broadly available as possible, with the aim of giving persons in

other member states access to each country's structure of duration so comparisons can be made. […]

The performance data should be based on representative samples and should be published.”13

Who needs to perform these audits? CEPEJ (2009) 11 REV has two remarks on this:

Regarding the quality control of the enforcement procedures:

“ In order to undertake quality control of enforcement proceedings, each Member

State should establish European quality standards/criteria aiming at assessing

annually, through an independent review system and random on-site inspection, the

efficiency of the enforcement services.” (Guideline 65)

Regarding the supervision and control of enforcement activities:

“The authorities responsible for supervision and/or control of enforcement agents

have an important role in also guaranteeing the quality of enforcement services. The

Member states should ensure that their enforcement activities are assessed on an

ongoing basis. This assessment should be performed by a body external to the

enforcement authorities (for example, by a professional body) The Member states'

authorities should clearly determine the control procedures to be performed during

inspections.” (Guideline 78)

Different control mechanisms can be distinguished:

Appointment criteria for the bailiff in order to minimize future monitoring problems;

An effective system of financial bookkeeping and auditing;

An effective system of supervision;

11.2. Present situation in Albania

Article 25 under c ALPES describes the task of the Chamber with regard to monitoring and control

over the private bailiffs: the Chamber oversees the exercise of profession of private judicial bailiff. A

clear provision on who is responsible for monitoring and control and how it is organised however is

missing.

13 (CEPEJ (2009) 11 REV Guideline 65 and 76)

Also the powers of the Minister of Justice and the Chamber are only described in a very general way:

“Minister of Justice exercises the following responsibilities: […] controls through the structures of the

Ministry of Justice the implementation of this law and other legal and bylaw acts connected to the

activity of the private judicial bailiffs;”14 and “National Chamber of Private Judicial Bailiffs has the

following competences: a) ensure implementation of professional and ethical criteria to be followed

by the private judicial bailiff during the exercise of their function; b) issue normative acts regarding

the running of the activity of private judicial bailiffs; c) oversee the exercise of the profession of

private judicial bailiff.”

What is the status with regard to monitoring and control related provisions in Albanian law:

1. Disclosure of assets

ALPES does not have a provision obliging to private bailiff to disclose his assets on a

periodic base;

2. Article 32 ALPES: insurance

From article 32 ALPES one may conclude that it is necessary to have an insurance. In

most countries such an insurance needs to be concluded prior to appointment. It is

also not clear what kind of insurance article 32 is referring to: an insurance against

potential damage to third parties in the course of his or her activities, or an

insurance against damage, destruction or loss for the premises and equipment

received into care?

3. Requirements regarding the office and equipment

These cannot be found in ALPES.

4. Article 39: business sign, seal, stamp, signature and ID card

5. Obligation on ongoing training

Not in ALPES

6. Article 32 ALPES: registration of enforcement actions and obligation to keep record

7. Article 37 ALPES: management and disposal of funds

See paragraph 11.6

14 Art. 10 and 25 ALPES.

8. Article 47 and 48 ALPES: performance fee and reimbursement of expenses

9. Article 52 ALPES: access to data

10. Performance reports

No legal provision.

The supervision by the Chamber is carried out based on certain forms that have been developed in

cooperation with the Euralius project.

Within the Ministry there is a special department for legal professions that is responsible for the

supervision of the private bailiffs.

During the past years the responsible department within the MoJ, the department for legal

professions, had a substantial lack of capacity. It is obvious that the lack of capacity has its influence

on the frequency of controls and the supervision function of the MoJ. In 2014 only 5 offices were

controlled.

11.3. Proposal for improvement of supervision, based on a system of professional standards15

11.3.1 Professional standards

Bailiffs in Moldova, similar to those in Albania, act as both a public servant and an entrepreneur. As

a public servant the profession is subject to a strict legal framework; as an entrepreneur the bailiff

will be influenced by what is happening in a (competitive) market. The bailiff will need to find the

balance between these two functions.

We propose to develop a set of professional standards. These standards should be compulsory for

each private bailiff.

This way the standards guarantee a minimum level of quality in each bailiff’s office. On the one hand

the standards may function for an individual bailiff as a reference guide how to organise the office,

on the other hand for the supervision authorities (MoJ and Chamber) the standards can be used as a

tool to facilitate the supervision.

In this respect we propose to establish a working group with representatives of MoJ, Chamber and

the Project to define such professional standards, the relevant regulative framework and to work

out in detail the system of monitoring and control and connected activities such as disciplinary

proceedings.

15 Also in other European countries during the past years, systems of professional standards were developed (e.g. Netherlands, France, Bulgaria. Serbia is currently preparing the introduction of professional standards as part of the monitoring and control system)

The professional standards aim to provide a set of standards securing the professional (and

commercial) quality of service, conduction of good business, independence and integrity of the

bailiff.

The system we want to propose for Albania will reflect both the bailiffs’ public servant and

entrepreneur function. It is based on the system as it was introduced in the Netherlands about 4

years ago.

The set of professional standards consists of norms and best practices.16 In the development of the

set of standards both the MoJ and Chamber will be involved.

The standards (norms): These norms are broadly formulated provisions to which the bailiff

will need to conform. Initially the bailiff will need to meet those norms.

Based on the norms concrete best practices are defined. These best practices are a detailed

interpretation of the norms.

The bailiff is allowed to deviate from the best practice, providing the bailiff can substantiate

such a deviation, to what extent and why. In this respect the method followed is the "comply

or explain” 'rule: either the substantive provisions of the norm are followed or the bailiff

explains why the norm was not followed and will indicate an acceptable alternative

provision.

The professional standards are classified in different categories, based on the procedures within the

bailiffs’ office:

1. Infrastructure and identification;

2. Staff and social obligations;

3. Organization;

4. Communication;

5. Automation (IT);

6. Marketing and acquisition;

7. Contracting;

8. Case management (including fees);

9. Finances;

10. Closing cases and archiving;

11. Results and evaluation of cases;

12. Ethics and ongoing training:

Table 11.1: classification of the professional standards

16 This system is also used in several countries for the development of Corporate Governance Codes.

11.3.2 Professional standards and monitoring and control

As indicated the set of professional standards will set a norm. As such the implementation of those

standards in the office is obligatory. This means that simultaneously with the establishment of the

regulatory standards and set of best practices, the legislation will need to be reviewed. The oversight

over the profession requires a clear division of competences, effective, and enforceable sanction and

disciplinary mechanisms. A more solid legal basis is necessary.

For example:

Empowering the MoJ or the Chamber to work out the monitoring and control in more

detail through a bylaw;

The link between the supervision, the disciplinary infringement, the motion to initiate

disciplinary proceedings and the disciplinary sanction;

Alternatively the supervision might result in an order to eliminate the deficiencies in the

bailiff’s work and deadlines for action on such measures and may file a motion to initiate

disciplinary proceedings;

The scope of the supervision is too limited: it is only case related supervision.

Supervision should refer to ALL procedures in the office;

To create a solid base for the reporting obligation of the bailiff;

Consequences of a deficit on the bank account as mentioned in article 29 ALPES are not

sufficiently regulated (e.g. personal liability of the bailiff).

11.3.3 Assessment of the implementation

The professional standards also imply the design of an assessment system.

The professional standards and thus the general meaning of the assessment are clear and

transparent and comprehensible to the bailiffs, MoJ and Chamber. On a regular base (every two

years) a formal review on compliance with the standards and best practices needs to be done. This

means that such an assessment is preventive. The authority carrying out the assessment (audit) may

supply the bailiff with an audit certificate, indicating that the bailiff meets all standards. Not meeting

those standards means that disciplinary proceedings will be initiated.

Who is responsible for such regular assessment? Different options are possible.

First the assessment may be performed by either MoJ or Chamber as part of a periodic (2

yearly) audit;

Another possibility is to have the organizing and testing of the regular assessment done by

an independent entity, the certified external auditor. This person is trained by MoJ and

Chamber and needs to meet certain requirements (e.g. with regard to ongoing training). The

review and assessment are simply organized and there is a simple procedure. The certified

external auditor reports to the bailiff, MoJ and the Chamber on his/her findings.

11.3.4 Financial supervision

In addition to the audit based on the professional standards a more close financial supervision is

necessary.

Partly such a financial supervision can be done by an auditing system too: in case an obligation is

created for the bailiffs to supply the monitoring authorities with the annual balance sheet and profit

and loss account, accompanied by a report on the financial audit by a certified accountant. The

certified accountant should also give a statement on the personal financial position of the bailiff.

However it is also important on a more periodic base to control the financial position of the bailiff.

On a more periodic base (quarterly) we propose the bailiff to report to MoJ on the money flows

within the office. This can be done through a template obligatory for all bailiffs and need to

safeguard:

That money entrusted to the bailiff in connection with enforcement is transferred to the

creditors;

No deficit in the balance of the special account exist (presently not in the law, see our

comments on article 28 LoB)

The bailiff is not taking any financial risks.

Ideally the quarterly data are forwarded electronically. In this respect we consider the development

of an IT platform can benefit to a more efficient control on the financial data.

In case the bailiff does not meet these obligations, this is considered a disciplinary offense (in most

countries immediately resulting in immediate suspension of the bailiff).

11.3.5. Extra-ordinary supervision

It is important to regulate that the supervision of the lawfulness of the work of bailiffs can also be

carried out on an extra-ordinary base whenever there is a reason. Such a reason can be indicated by,

for example, a motion of the president of the court for whose territory the bailiff was appointed, of

the president of Chamber, on the initiative of the MoJ or based on a motivated motion of the parties

to and participants in enforcement proceedings.

11.3.6. IT based solutions in monitoring and control

Chamber and MoJ are the bodies that are in charge to monitor and control the work of the bailiffs.

As indicated the proposed system of monitoring and control is based on two pillars: professional

standards and financial supervision. Especially with regard to the financial supervision the use of IT is

inevitable.

Data with regard to cases can be directly implemented in a central case management system by the

Chamber (ALBIS or SIAIP) or MoJ and thus used for analysing purposes. Other (financial) data can be

uploaded and also used to analyse the financial status of the office. IT enables the monitoring

authorities to analyse the data as provided by the bailiffs. The use of certain indicators makes it

possible to analyse the finances and caseflow in the offices, to compare the outcomes with the past

and to decide whether it is necessary to undertake a thorough investigation of the office. Behaviour

which is considered inappropriate or risky (by law, by Chamber or MoJ based on certain set

standards) will result in immediate alerts towards the bailiff and the controlling bodies.

Examples of indicators are: financial ratios such as liquidity and solvability; money flows with regard

to the bank account ex article 29 ALPES; inactive cases; success rate.

With regard to the development of an IT system different options are possible: develop a complete

new system, adjustment of ALBIS or continue to develop the SIAIP system.

12. Public awareness and public education

The field of public awareness and public education is unexplored. To some extent this has been a

deliberate decision of the Board. The strategy was to consolidate and strengthen the position

initially and internally and only then start efforts in public outreach. Other factors influencing the

lack of efforts in the area include the preoccupation with legal amendments and the insufficient

capacity to structure public awareness.

The important part in this endeavour is using "one voice". The Chamber should develop its strategy

and leading objectives and based on that formulate messages for the general public as well as for

specific target audiences. Only unified messages should be communicated to the outside world to

form the public image of the organization and the profession. PR function is to be carefully

developed and channelled.

With the assistance of Twinning advisers the PR function of the Chamber is going to be strengthened

and developed. Experts will work for developing internal capacity in the Chamber and propose

targeted interventions. A communication strategy will be drafted and a number of campaigns

proposed.

12.1. Communication Strategy

For the nearly five years of existence there has not been a communication strategy, nor any ad hoc

initiatives.

A mission is planned under the Twinning project to draft the strategy together with the Chamber

leadership in November 2015.

12.2. Establishing Communication protocols

The new Board has initiated dynamic and proactive steps towards establishing effective

communication protocols. It has been open to cooperation and extended numerous proposals to

different stakeholders. These efforts are further down broken into communication with institutions

and internal communications and they will continue with the support of Twinning experts. A scheme

of documents developed so far by Chamber managers is attached to the present report as

Attachment No 1. Experts review confirms the quality of these documents, the level of provided

information and the depth of the analysis. They were drafted to initiate discussions or to follow up

on meetings and are a good reference for further communications.

12.2.1. Communication with institutions

The main institutional partners for the National Chamber are the Ministry of Justice, the Ministry of

Finance, the Ministry of Economy, National Bank of Albania, Courts and different government

agencies and other authorities, as well as the Association of Banks, commercial banks and other

economic agents. Efforts have been made by National Chamber leadership to present the profession

as part of the judicial system with the understanding that the enforcement represents the bridge

between the justice and the economy. Chamber should develop advocacy capacity, find allies and

lobby effectively.

The president, Mr. Malaveci has sent numerous letters to every stakeholder to present the Chamber

and propose cooperation. As a result four agreements have been signed so far to facilitate the

execution of enforcement titles, as follows: Agreement with the Central Technical Inspectorate, with

the Albanian Electro-energy Corporation, with the National Agency of Food Resources and the

National Food Authority. This is an excellent achievement of the Chamber and a very good

beginning. Hopefully the efforts will continue and more successful cooperations will be achieved. On

the other hand, although not binding, these agreements represent a serious responsibility. A credit

of trust has been extended to the Chamber and the membership needs to deliver a reliable service.

The agreements are the result of the attempts of the Chamber to increase the client base for

different bailiffs and distribute more evenly enforcement cases using the criteria of territorial

location.

A careful follow up of these agreements is recommended. Chamber should look closely at the results

of the execution of cases entrusted and provide regular information and update on developments.

There should be an account and analysis of the bilateral benefits of such cooperation. These results

can serve as promotional tool for extending further cooperation agreements.

Two important position papers, which the experts could review, have been developed: on Bad Loans

and on exchange of information with the banks.

Another achievement with respect to communication with institutions is the development of the

SIAIP (the Integrated System for Information Administration) system - a unified IT solution that

provides on-line access to state registries and facilitates the work of each individual bailiff.

Communication is recently present through SIAIP that is subject of the Act Agreement with NAIS

(National Agency on Information Society), interacting with the electronic registers of Immovable

Properties Registration Office, National Registration Center, General Directorate of Road

Transportation Services, and the Civil Status Register. The system was developed at the initiative of

the Chamber with the support of bailiffs and is a significant improvement in the direction of

automation of the profession and the use of modern technology.

12.2.2. Internal Communication

Prior to the election of the new Board internal communication was very week. The Chamber was not

promoted among the members, nor actively seeking the support of the membership. Following the

elections in November 2014, the President initiated a series of meetings with the members, group as

well as individual ones to meet people, get to know them better and hear their issues and concerns.

These meetings were much appreciated by the bailiffs according to feedback received by the

Chamber assistant.

A new website of the National Chamber was developed and it offers regular messages and

announcements to spread among the membership news on the latest developments. Parallel to that

the Chamber provided electronic addresses to all private bailiffs and is regularly sending both to the

personal, as well as to the official address of the bailiff the relevant information concerning the work

of the organization and any other arising matters.

Chamber leadership is also trying to inform the membership on the latest international

developments in the profession. After attending the Congress of the International Union of

Enforcement officers (UIHJ) in April this year in Madrid, a full account was given to the members.

Such endeavours and international cooperation represent a useful tool for the development of the

profession. Providing access to information and sharing others' experiences contributes to growing

the dignity and responsibility of Albanian bailiffs.

Members of the Board visited the Kosovo Chamber of Enforcement Agents at the end of June to

mark their second anniversary and strengthen bilateral cooperation. Regional contacts are to be

encouraged and developed as mutually beneficial initiatives.

While visiting bailiff offices, expert also tried to receive feedback concerning the perception of the

work done by the Chamber and noted positive developments, although still at an early stage. More

targeted communication is necessary to form the relationships of trust and respect.

Twinning experts recommend that at least 2 national conferences are scheduled for the coming year

on which all PB can take part, embrace Chamber initiatives, discuss specific relevant issues and

contribute to the development of the profession.

12.3. Public awareness towards courts and legal professionals

Courts and legal professionals are a major stakeholder in the enforcement process. No efforts have

been identified for improving the awareness of this special group. It is recommended that annual

conferences are organized to improve awareness and establish contacts between PB and other legal

professionals.

The celebration of the 5 year anniversary of the establishment of the Chamber can serve as an

excellent possibility to start the initiative. International partners and counterpart organizations can

be invited to support the national organization and deliver important messages.

12.4. Public awareness towards general public

While some understanding of the enforcement process is to be expected by other legal

professionals, it is not to be taken for granted with the general public. First-hand experience with

enforcement is limited and/ or biased. The majority of the cases are sensitive and personal and

require special attention. As mentioned earlier in the present report, no public awareness initiatives

have been undertaken by the Chamber. The only exception is the regularly maintained website of

the National Chamber and credit should be given for keeping it up to date and informative.

There is a broad spectrum of activities that can be employed to achieve results. Twinning advisors

will work closely with the Chamber to propose and develop comprehensible visibility materials and

campaigns. A concise and clear outline of the rights and obligations of parties involved in the

execution of enforcement has to be developed using an understandable language and circulated

appropriately. A series of publications in national newspapers, magazines and on-line platforms can

be initiated to educate the general public and start forming the public image of the PB as a

guarantor of rights.

The idea to produce a short educational video for the broader audience was accepted by the

Chamber and the objective is to prepare one for the coming anniversary celebration.

Twinning experts recommend that all communications channels are used, a combination of the

traditional PR channels as well as more creative initiatives are implemented to project to the general

public an image of a responsible, professional and accountable bailiff profession.

12.5. Performance and perception surveys

At present there is no indication on the performance of the Chamber. Experts tried to collect some

information but it was extremely difficult with the lack of any data. In order to work for the

improvement of the public image there should be first an image and in some aspects is it beneficial

for both the Chamber and the Project to start building one rather than to repair a broken public

image.

These set of activities are cross-cutting and require significant efforts. Experts recommend that a

baseline survey is carried at an early stage of the project and a performance survey is also conducted

towards the end of the project to be able to measure progress and results.

13. Conclusions and recommendations

13.1. Conclusions

The current analysis showed that although the National Chamber of Private Bailiffs has existed in

nearly five years, it is still in a very initial state of development. The basic legislation and bylaws are

in place but significant streamlining and fine-tuning is necessary to ensure the effective and efficient

functioning of the system. A number of key documents need to be revised to reflect best European

practices, e.g. the Code of Ethics and developing of a set of professional standards and performance

evaluation.

Of the main responsibilities of the Chamber some are at an initial state - representation of the

profession, while others are still not developed - supervision, monitoring and control, or at least not

structured in a systematic way - developing the profession. Considerable efforts need to be invested

in strengthening training and PR functions.

The analysis confirms that the Twinning intervention is much needed and assistance comes at the

best possible time. There is momentum, potential and enthusiasm of the beneficiary exists and the

common objective of strengthening the Chamber in all aspects is present.

The strategic direction of introducing and efficiently implementing best European practices is leading

the joint work, while identifying the specific areas that need improvement and support. A

comprehensive list of recommendations follows below.

Conclusions of the current report are best illustrated with a SWOT Analysis:

Strengths:

● Most necessary regulations about duties and tasks are developed

● Motivated leadership: Power, will and endeavor of Chamber-members (presidents and

executive board)

● Project support is available.

Weaknesses:

The Chamber is in the “pioneer phase”.

Processes have to be developed (steering standardizing, qualification, controlling, others)

Streamlining and fine-tuning processes: There are lots of regulations about duties and tasks

and requirements, but they cannot fully be fulfilled by the Chamber at the moment for

various reasons.

The Chamber is obliged to finance itself, but income does not even cover the basic

requirements (there is even no salary for presidents).

IT-structure needs to be developed: lack of adequate software-tools for gathering required

data from offices, directory, controlling, etc., connectivity, etc.

Record keeping: Data for steering of the Chamber is missing or in a bad quality.

The Chamber is obliged to supervise offices, but has no real intervention power in case of

misconduct.

There are decisions expected from the Ministry, which could have huge impact on the frame

conditions and tasks of the Chamber (fee system, tenders outside the private bailiff system,

etc.)

The capacity for midterm and long term strategic thinking is not well developed, also the

conviction, that the Chamber can influence decisions by the Ministry, and/ or other

authorities.

Organization and HR structure of Chamber staff: limited resources, functions missing ,lack of

experience.

Lack of control and reporting system from the Chamber members.

Opportunities: elements that the project could exploit to its advantage

● Power, will and endeavor of Chamber members (presidents and executive board)

● Support by EU (projects, know-how, possible cooperation).

● Develop internal management capacity within the Chamber.

● Involvement in legal reform to create environment for Chamber (fee system, legal

framework, responsibilities, interface to courts/state EA, …..)

● Access to Ministry of Justice

● Experience from other Chambers (Benchmarking): Cooperation with the chambers of

enforcement agents in other countries

● Insurance for all bailiffs, negotiation with insurance company and other services.

● Develop services/ways to increase and/ or generate income .

● Membership in UIHJ Danube group and other network.

● Potential access to budgets (program and project for Non-profit organization), but in other

calls, Euralius? .

● Education and workshops, collaboration with MOJ and Faculty of Law, Certification,

Recertification.

Threats: elements in the environment that could cause trouble for the business or project

● Decisions of Ministry of Justice are not predictable

● Given practice of case allocation

● Lack of financial means

● Lack of power for Chamber

● Lack of sustainability, or inconsistent performance of Chamber management

● Bad image

● Relatively new profession, lack of professionalism and experience (executive board);

13.2. Recommendations

1. Initiate legislative amendments to fine-tune the equal competences for state and private

bailiffs: Provide for PB to collect public claims, not legal grounds for State Police to collect

unpaid invoices from utility companies

2. Mandatory membership is to be explicitly regulated with ALPES. Adjust the provisions

regarding the establishment of a company or partnership: the powers remain to the private

bailiffs individually.

3. Withdraw inactive licenses after providing for a specific period for compliance/ registration.

4. Develop internal governing documents for the Chamber.

5. Undertake targeted actions to unify the membership and create a community.

6. Revise the organizational structure of the Chamber to avoid confusion, simplifying it.

7. Train members of the governing bodies of the Chamber for broadening their awareness as

organization managers.

8. Form clear portfolios, such as Legal Issues, Institutional Contacts, Financial Matters, Training,

International Relations, etc. and an equal distribution of tasks and assignments to all

governing body members is practiced.

9. To improve follow up on decisions and actions taken in the decisions of the General Council,

consultants recommend that a tracking form is introduced to keep an account of tasks and

actions and their implementation, deadlines and responsible person as a simple

management tool.

10. Create a Supervisory body/function to monitor the performance of Chamber bodies.

11. Strengthen administrative capacity of the Chamber by hiring an administrative director or

delegating the function to an existing employee. Evolve the administrative staff to cover the

functions of director, probably for the lawyer position and PR for the assistant.

12. Introduce remuneration for governing bodies, dedicating long working hours has to be

compensated accordingly and is a matter of principle and mutual respect.

13. Provisions regulating the adoption of bylaws are missing in ALPES and should be provided for

in terms of their growing importance

.

14. Develop a system for financial contributions based on a sustainable model.

15. Introduce a structured and systematic approach to training, including a TNA, unified

methodology and curriculum development and a proper full training cycle.

16. Review the existing Code of Ethics to incorporate best European practices regulating the

profession.

17. Consider establishing a unit responsible for monitoring and enforcing professional ethics,

e.g. Professional Ethics Committee.

18. Introduce an independent disciplinary body, in line with the Recommendations and

Guidelines of the Council of Europe, involving the judiciary.

19. Allow the Chamber to initiate disciplinary proceedings.

20. Allow preliminary suspension of a bailiff awaiting a final disciplinary sanction.

21. Enlarge the list of disciplinary sanctions, specific proposal developed.

22. Implement in art 45 ALPES CEPEJ 2009 Guidelines 80 and 57.

23. Specify the type of insurance mentioned in Art. 32 of ALPES, as well as the requirements to

the office and minimal equipment.

24. Include legal provisions for the submission of performance reports.

25. Develop a set of professional standards that are compulsory for each private bailiff.

26. Supervision to cover ALL procedures in the office, not only limited to case related

supervision.

27. Develop an IT platform to contribute to a more efficient control on the financial data,

provide for quarterly financial reports submissions.

28. Develop a communication strategy and PR function within the Chamber to form a positive

public image.

29. Develop advocacy capacity within the Chamber, find strategic allies and lobby effectively.

30. Continue with the development of SIAIP, adding additional functionalities to it and

upgrading it as a successful communication and business process management tool.

31. Organize national conferences for PB and stakeholders to promote and embrace Chamber

initiatives, discuss specific relevant issues and contribute to the development of the

profession and the enforcement process.

32. Use the coming 5-year celebration to raise public awareness and develop partnerships with

stakeholders.

33. Use all traditional PR channels in combination with more creative and responsible initiatives

to raise public awareness and image.

34. Conduct a baseline survey to measure performance and attitudes and follow it by a

performance survey towards the end of the project to be able to measure progress and

results.

Analysis of the status quo of the National Chamber of ...

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