Deputy Chairman of the Commission on Professional Ethics of the Private Court Bailiff Chamber of the Republic of Bulgaria
Execution of Non-Property Obligations in the Republic of Bulgaria: Powers of Law
Enforcement Offlcers, Statutory Framework and Practical Issues
In Bulgaria execution of non-property obligations embodies transfer of possession of movable and immovable estate (eviction), fulfillment of replaceable and non-replaceable acts as well as omission of action. The legislator has incorporated into the given norm enforcement of anobligation to resign children as per the taken judgment in terms of observance of the parents’ rights. The powers of a court bailiff-executor may vary in this case depending on the subject of enforcement proceedings, yet, in general, legal enforcemem means executing actions prescribed by the court decision, the fulfillment of which the debtor avoids and imposing a fine on him. The latter measure of the Bulgarian legislation is inefflcient as the mechanism of imposing a fine involves an extensive red tape procedure or a formal filing of the fine which could later become an issue of trial as part of an appeal claim and in case of a favorable award the given fine would be recovered by the Tax Agency of Bulgaria. In practice such state-recovered payments enjoy low priority. At present this sphere is being reformed with the aim to grant the court bailiff direct authorities to collect such fines in the established order (with regard to the debtor property). If the debtor fails to execute the lawful court decision the court bailiff is empowered to authorize the creditor to accomplish necessary actions at the debtor expense wherever possible.
Forcible Withdrawal of Tangible Objects
Article 521 of the Civil Procedure Code (CFC) provides for a forcible withdrawal and transfer of any moveable property, the right to possession of which was not transferred from the debtor to the creditor upon official notice. If the material object is not held by the debtor or is damaged (in part or in whole) the debtor must pay off a monetary equivalent of this movable property as required by the creditor. In case its value is not stated in the enforcement order the bailiff makes its assessment upon formal hearings of the parties, their witnesses and expert appraisement. The decision on the amount of its monetary equivalent can be challenged in a judicial procedure.
The right to possession of immoveable property adjudged per curium devolves on the relevant party upon receipt of its voluntary execution. The bailiff assigns the date and hour of its transfer. The bailiff draws up in situ the act confirming the withdrawal from the debtor. Unless the debtor vacates the immoveable property (and/or premises) voluntarily the bailiff is entitled to resort to any measures stipulated in the acting legislation including withdrawal of all the debtor property from his estate as well as eviction of his family members. The bailiff has also the right to ask assistance of law enforcement oiiicers in execution proceedings if necessary.
Legal foundations for transfer of moveable and immoveable property in Bulgarian enforcement proceedings are direct and not too complicated to all practical purposes other than as in cases when the bailiff has to establish in situ legal rights of the third party in respect of the given property.
As per the norms of withdrawing the property (irnmoveables) from the third party (art. 523 CPC) the law enforcement oflicer is obliged to deline the exact moment of real acquisition of the property by the given party. If the officer finds out that the party concerned acquired the property after filing the civil action as a result of which the writ of enforcement proceedings was issued the officer conveys the above property to the creditor. The officer has to state in the act the circumstances and facts that make it possible to conclude that the third party acquired the property after the litigation was initiated. If the third party makes a reasonable claim connected with observing its rights which excludes the creditor rights the bailiff has to suspend considering the case and grant the relevant party a three-day period to file a petition on hearing the case in a regional court. The petition and all the evidence relating to the case are to be considered in public hearings with participation of the debtor, the creditor and the third party. If the petition is proved to be reasonable the court is to Suspend enforcement proceedings and grant the third party a week period to Start a civil action. If the third party does nothing enforcement proceedings are resumed on the creditor’s demand.
If the evicted person starts using the premises without a required permit the bailiff, at the instigation of the creditor, executes a repeated eviction of the above person from the given premises. Any such offender is held criminally liable as per article 323(2) of the Criminal Code.
Execution of Particular Actions
In the legislation of Bulgaria the mode of executing obligations on particular court decisions depends on whether a specific action can be performed by another person - a replaceable act (for instance, repair works or delivery of standard goods and rendering services), or it depends on personal qualities and/or abilities of the debtor (works of art, craftsmanship or scientific rescatches) - a non-replaceable act. In the latter case enforcement proceedings do not apply to relevant cases within the frame of an employment agreement when a compensatory remedy is of a disciplinary nature or/and a notice of delay in payment.
If the debtor fails to execute a prescribed action and this action can be performed by another person the creditor may request the bailiff to let him perform the given action at the debtor’s expense.
If the action cannot be performed by another person but depends entirely on the debtor’s will the bailiif, acting at the instigation of the creditor, must make this debtor perform the required action imposing on him a fine that does not exceed 200 levs (100 Euros). In default the bailiff has the right to impose new fines of a similar nature again and again.
If the debtor overrides his obligation and acts against what is prescribed to him the bailiff can impose a line not exceeding 400 levs (100 Euros) for each breach of the above obligation.
Execution of Obligations to Resign Minors
The law handles legal matters when through enforcement proceedings the debtor must resign the child or return it to the parent as per a court decision or a relevant agreement of the parents authorized by a judicial body. The prescribed procedure (art. 528, 529 of the CPC) covers judgments of Bulgarian courts as well as legal relations under the Hague Convention on lntemational Abduction of Children. Such matters are of heightened social and humanitarian sensitivity and, thus, in this case heightened legal and de facto requirements are applied to the bailiff powers and standards of professional practice. Participation of state bodies (for example, children protection agencies, the prosecutor’s office and the police) is increased in such cases as compared to other cases of civil enforcement.
Upon receipt of the bailiff notice with the demand to arrive of his own accord at an appointed place at an appointed time the debtor must notify the bailiff of the following:
1. if this debtor is willing to deliver the child to the appointed place at the appointed time;
2. what impediments do not let the debtor execute this obligation in due time;
3. the place and time where and when this debtor is ready to deliver the child.
In case of non-fuliillment of the above obligations the bailiff can impose a fine in accordance with art. 527(3) of the CPC and is able, if necessar, to make arrangements for law enforcement bodies to ensure the presence of the debtor.
The bailiff can involve the Social Care Administration to remove impediments which do not allow the debtor to fulfill his obligations in due time and explain to him and, if necessary, to the child the advantages of voluntary execution and adverse effects of non-execution of the court decision. The bailiff can ask the Social Care Administration to render assistance in taking appropriate measures as per article 23 of the Law on Children Protection. Participation of specialized child psychologists and educators is often critical for efficient execution of enforcement proceedings which completely rules out any negative effects on the child psyche. The law and other statutory acts emisage specialized psychological trainings with the child aimed at minirnizing harmful effects of the resigning process.
As per article 56 of the Law on the Ministry for Internal Affairs the court bailiff-executor has the authority to run queries for law enforcement bodies to take measures as for the debtor who permits arrears. In case of non-fulfillment of his obligations the bailiff, with the assistance of law enforcement bodies and the head of a municipal entity, a district or some other territorial unit, has powers to take away and deploy the child to the creditor in an enforcement proceeding. If the debtor refuses or hinders execution of enforcement proceedings the law stipulates his detention, which is a unique civil law regulation of Bulgaria and is applied only if it is connected with the transfer of a minor./.