Enforcement of court decisions, despite a number of changes to the procedure and the introduction of the Institute of Private Enforcement Agents, remains a problematic stage of court proceedings, according to the interviewed by Interfax-Ukraine lawyers.
Managing partner of DTP Expert Oleksandr Keyer states that "the enforcement of court decisions in practice is a very complicated, long process, with unlikely positive completion".
"In the last year, alimony enforcement proceedings have begun to be allegedly" tightly controlled ", but even this relatively small and complicated sphere suffers because of the lack of time and the workload of state executives," he said.
According to Keyer, the legislation does not provide for a time limit for enforcement proceedings. Meanwhile, the timeframe for specific actions of the executor is set: opening of enforcement proceedings, seizure, etc.
"In practice, the fastest is the enforcement of court decisions on the recovery of funds from state-owned enterprises, on the accounts of which there is sufficient cash to satisfy the requirements of the creditor in full, since in this case there is a semi-automatic write-off of funds," he said.
At the same time, according to Keyer, today among the problems in court enforcement, in particular, poor quality judgments and continued preparation, which leads to the inability to execute them. "For example, if the debtor has already sold all the property, the money is transferred and he escaped," - said the lawyer.
In addition, most bailiffs are too busy to perform every enforcement process properly, or the executors lack the proper motivation. At the same time, private contractors "work fast, but only for creditworthy creditors," while the middle class, who is unable to pay for private contractors, remains unprotected.
"Every movement of the state contractor needs to be 'requested', that is, to write a million statements and petitions, complaints about non-performance or poor performance, etc.," Keyer explained.
Commenting on the situation with the sale of seized property, the lawyer noted the problem of underestimation of the property being seized.
“It is not often the case that after the sale of property the amount of debt is reduced slightly, the debtor still has a debt, but has already lost his property. On the other hand, after the sale of the seized property, there are problems for the new owner: write people out, hang out, plead eviction, quarrel, go to the courts to challenge the bidding, ”he said.
For his part, Antonites Kaganets, a lawyer for the practice of resolving national litigation of Integrites, said that "every second enforcement document (court decision, other documents) is not executed, and how many court decisions have not even been submitted to enforcement - is unknown."
“The quality of work of private or public contractors (although many questions are up to the last) is not a major problem. Among the negative factors affecting the level of enforcement of judgments are the registration of property for others, the inaction of law enforcement agencies and the lack of formal property at the expense of which debt can be collected. And we rarely apply the responsibility for non-enforcement of a court decision, ”he emphasized.
At the same time, Kaganets praises the implementation of the institute of private contractors, even though the reason for higher performance compared to state performers is to work with more likely debt collection and fewer proceedings.
At the same time, the lawyer stressed that there are currently about 150 private performers in the whole of Ukraine, most of whom are concentrated in Kiev, so they cannot change the situation significantly yet.
"A more significant change requires a comprehensive approach that would involve changes in legislation, reducing the burden on contractors, effective cooperation with the police, attracting citizens' attention to the purchase of property at auction and removing the income of citizens from the shadows," the lawyer said.
The Legal Alliance Law Firm states that "no transparent, understandable and accessible judicial system has any value and value if the court's decision cannot be enforced."
“Only with the onset of private enforcement activities has the rate of enforcement increased threefold. Previously, only 5% of court decisions were enforced, today the figure has grown to 18%. This dynamic is quite positive, and even with imperfections, there is no desire to criticize it. We hope that this dynamic will continue to grow, but if we consider that only 18% of decisions are implemented, it is not surprising that citizens and investors have low level of trust in the judicial system, ”the company stressed.
However, experts of the Legal Alliance note that the practice of enforcement of judgments is still not systematic and subjective.
As an example, the lawyers of the company cite a series of court rulings, during which the state bailiff collected some of the funds but left them in their accounts.
“In one of the enforcement proceedings, the funds were transferred to the account of the executive service for specific purposes, but they are illegally withheld by the state executor. This is an example of a separate complicated category of enforcement proceedings, when the state (executive service) has to execute the decision of the state Ukraine (court decision) on the debt of the state bank, but it does not do that, ”the company said.
For his part, Asters Lawyer Yuriy Neklyayev also notes that not all the improvements announced have been available for more than three years of reform of the enforcement system.
“The Law on Enforcement Proceedings obliges performers to carry out enforcement actions effectively, in a timely manner and in full. That is, any claimant, having received a court decision in his own favor, counts on its actual execution. But in practice, such expectations are not justified - many enforcement proceedings can take years. Sometimes this is due to objective reasons - lack of money / property from the debtor, in other cases it is a consequence of inefficient work of state executives, third, unfortunately, frank sabotage of legal procedures for enforcement of decisions by the bodies of the State Enforcement Service » , - said the lawyer.
According to him, a striking example of the third category of cases is enforcement proceedings against state-owned enterprises.
The peculiarity of such enforcement proceedings is their execution in a special order at the expense of the state budget. Such procedure shall apply if the judgment is not enforced six months after the opening of enforcement proceedings or if the law imposes a prohibition on the recovery of the debtor's property or funds.
“Practice shows that the probability of enforcement of a decision against a state-owned enterprise within six months is extremely low. In addition, since 2002, the Law "On the Moratorium on Compulsory Sale of Property" has been in force in Ukraine for enterprises with a state share of more than 25%. This means that the law has long forbidden the seizure of property from state-owned enterprises in the framework of enforcement proceedings, ”the lawyer emphasized.
At the same time, Neklyayev believes that "there are all conditions for the execution of the court decision at the expense of the state budget."
According to him, for this purpose the officials of the ICE only have to transfer the materials of the enforcement proceedings to the State Treasury. However, in practice, the ICE does not do this not only within the scope of my official duties, but also as a result of consideration of complaints of the claimants, even after the Supreme Court obliges the ICE to transfer the enforcement proceedings to the Treasury, the lawyer said.
"In my opinion, the sole lever of influence on such inaction of ICE bodies is to appeal to law enforcement agencies to hold responsible persons of the State Bailiffs' Service to personal criminal responsibility for non-enforcement of court decisions," he said.
Neklyaev stressed that "this is an example of a systemic problem, which, unfortunately, is very widespread, and within the framework of the reform of the internal combustion engine has not yet been found an effective way to solve it."
Source: Interfax-Ukraine