AD. AVDEEV, Chief of the Central Department on Enforcement of the Ministry of Justice of the Republic of Belarus Chief Bailiff of the Republic of Belarus
Enforcement of Non-Preperty Nature
Legal Mechanisms of Debtor’s Motivation for Voluntary Execution
Dear conference participants, guests, and colleagues!
Let me begin with words of gratitude to the Russian Federal Bailiff Service and the FSSP Office of Bashkortostan for the invitation to take part in the International scientific-practical conference and the opportunity to give a presentation. It is clear and I think everyone agrees with me that every year there is an increasing interest in this conference and we can call this event as of important to all of us and contributing to the improvement of the writ of execution enforcement proceedings by our legal bodies.
The conference topic is relevant for the Belarusian legislation due to some problematic issues related to the need of improving the legal regulation of me enforcement proceedings of non-property nature.
The vast majority of the writs of execution that are to be enforced by the Belarusian enforcement authorities are those for the recovery of money. If we consider the number of documents of non-property nature, they make up a rather small part compared to the total number of judicial decisions. However, the enforcement proceedings in such cases are usually much more pomphcated than collecting money from the debtor. A distinctive feature of the enforcement of non-property nature is that the enforcement officer’s activities are aimed at forcing the debtor to self-fulfillment of the writ of execution.
The most common writs of execution of non-property nature to be enfored are the following:
1. Vacation of premises (forced eviction and settlement);
2. Removing barriers to the use of property;
3. Amending the constituent documents;
4. Performing certain actions (performing certain works);
5. Participation in the child’s upbringing;
6. Other requirements.
According to statistics, in 2015 6659 enforcement documents of this category (0,2% of the total number of documents to be enforced) were present in the enfocement bodies.
enforced in total: 4586 (69% of all documents);
: 3746 (81,7% of the enforced);
with a report on the impossibility of enforcement: (1,4% of the enforced).
Now I would like to give detailed information the algorithm of enforcement officer’s actions.
As a general rule, the debtor is given seven days to fulfill the requirements of the executive document after the commencement of enforcement proteedings. It should be noted that this term is often of formal nature because in practice only a small amount of executive documents’ requirements are fullilled voluntarily.
After this period, the enforcement officer is obliged to verify that the debtor has fulfilled the claims brought against him or her. If the judicial decision is not executed or not executed in full without any valid reason, the enforcement officer takes measures to institute the administrative action against the debtor. The Protocol on the administrative offense committed by the debtor is submitted to the Court.
In accordance with the legislation of the Republic of Belarus the debtor’s failure to fulfill the requirements of a enforcement document not associated with the transfer of money within the time set by the Court, other authority or by the enforcement officer is punishable by a fine imposed on a citizen in the amount of up to fifty base units (about 530 US dollars), and on a legal entity in the amount of up to five hundred basic units (about 5,300 US dollars).
Thus, the debtor is motivated to voluntarily fulfill the requirements of the executive document in order to avoid being subject to administrative proceedings. But in certain cases such incentives are insufficient and the Courts not always share the judicial enforcement officer’s opinion about the presence of the evidence of the administrative offense elements in the debtor’s act of omission.
In 2015 of the 253 protocols compiled by the judicial enforcement officers when exercising the of non-property claims, the Courts ordered the imposition of an administrative penalty only on 121 protocols (48%), the remaining protocols’ (52%) requirements to institute the administrative action were not satisfied.
The presented data shows that a significant number of protocols (52%) with requirements to institute the administrative action were not satisfied. I have to say there are both subjective (judicial enforcement officers’ mistakes and faults) and objective reasons, such as when the debtor fulfills the non-property claims prior to the judicial consideration of the administrative proceedings. Also, in our opinion, there are also cases of formal approach by the Court: the Court’s loyalty is not quite understandable when considering the debtor’s liability for failure of the Court’s judgment, which entails the termination of the administrative offense case, there is also the fact that the Court can appoint of a penalty close to the minimal.
It should also be noted that instituting the administrative actions persons who omit fulfill the requirements of the executive document does not always affect the future enforcement results.
In case the debtor fails to fulfill the requirements of a judicial decision or and other writ of execution after administrative action is instituted against the debtor and these requirements can be fulfilled by another person, the enforcement ofiicer with the claimant’s consent has the right to authorize another person or the claimant to execute enforcement at the debtor’s expense. It also does not exclude the possibility of re-instituting the administrative action against the debtor.
The legislation of the Republic of Belarus also establishes criminal liability for a failure to enforce court judgment, decision or other judicial act that has entered into force or for hindering its enforcement. However, only officials of the organizations can be brought to responsibility for this and it is fairly soft (it entails a fine or deprivation of the right to occupy a certain position).
In addition to instituting the administrative action against the debtor, another motivation factor which can cause the voluntarily fulfillment of requirements of non-property nature provided by the legislation is the forcible collection of funds and laying on the debtor all expenses directly related to the fulfillment of the requirements of the executive document.
For example, if the requirements of non-property nature are fulfilled forcibly, a forcible collection is collected (withheld) from the debtor. If the debtor is a private individual, a forcible collection amounts to the 5 basic units for each enforcement document (about 50 US dollars), if the debtor is a legal entity, a forcible collection amounts to the 10 basic units for each enforcement document (about 100 US dollars).
Of course, the size of the administrative actions and forcible collection I have mentioned are insufficient when major requirements are enforced. They are too low to motivate a debtor to voluntarily fulfill the requirements. However, there is another debtor motivation mechanism provided by out legislation.
In addition to the forcible collection, all costs that were spent directly on the execution of the court’s decision are also collected from the debtor. That means, for example, installation works, construction works, opening locked premises, setting locks, dismantling, and other costly work. The costs also include the preservation of the property described, sealed storages and other premises in which the property is located. In such situations, enforcement agencies recruit specialized organizations in the vast majority of cases these costs exceed the costs that the debtor would have incur if voluntarily fulfilled the court’s decision requirements.
I would also like to note that the judicial enforcement oiiicers have the right to use the full range of powers provided by the legislation, including the right to freely enter the territory and premises of economic entities, (if necessary with the participation of witnesses) to open, inspect the premises, use the non-residential premises for temporary storage of seized (inventoried) property with the appointment of the property custodian, use the claimant’s ordebtor’s vehicle to transport of the seized (inventoried) property, with laying all costs on the debtor, etc. Also when the judicial enforcement officer performs enforcement actions he or she can take a variety of security measures against the debtor, including the limitation of the right to leave the country and the right to drive vehicles.
Of course, every kind of non-property requirement has its own specifics and features. I will focus on the major issues arising during the enforcement proceedings.
1. Vacation of premises (forced eviction and settlement).
If the debtor systematically prevents access into the premises, enforcement actions in such premise without the debtor’s consent can be executed by the judicial enforcement officer on the basis of a separate court’s decision. In this regard, the main challenge in this category of requirements is to identify the custodian of the property, as well as the property storage location. In many cases the whereabouts of the debtor are unknown or the debtor is not present during the enforcement actions and the claimants refuse to take responsibility for the security of the debtor’s property.
In such cases, the period in which the inventory property is stored can vary from several months to several years.
We think that a possible way out is the transferring the inventory property described to the specialized organizations with subsequent reimbursement of storage costs by selling the property.
Eviction requirements often mate with the simultaneous requirement to settle the debtor in another premise in which the debtor refuses to be settled. In such cases, the legislation provides for the possibility to return the executive document without enforcement due to the obstruction on the part of the claimant.
2. Removing barriers to the use of property.
When enforcing this type of requirements the judicial enforcement officers often face their unclear statement in the executive document, which leads to delays in the enforcement proceedings due to the need to clarify the decision in the court, as well as leads to the additional costs and unjustified parties’ complaints against the judicial enforcement ohicer’s actions.
However, some of the complaints are recognized to be justified, though, based on the literal content of the executive document the requirements were fully met by the debtor.
For example, a court’s decision was enforced and in contained the requirements to eliminate the obstacles to the use of land, consisting in the flooding of the neighbon'ng land fiom the roof of the debtor’s building located near the neighboring land. The court’s decision has ordered the debtor to provide a roof sIope towards the claimant area of not less than a certain value, which was performed by the debtor in accordance with existing building codes. However, in an appeal against the judicial enforcement officer’s decision to end the enforcement, the court settled a claim and pointed out that the debtor’s roof was double-pitched instead of a mono-pitched. However, it did not follow from the initial court’s decision, and the judicial enforcement officer did not clarìy the evidence of barriers to the use of land (water flowing from the roof).
Other court decision can be seen as completely unthinkable. The court has ruled out the removing barriers to the use of property requiring the fulfillment of certain construction works within one month from the moment the court decision comes into force, which took place in winter, while implementation of this type of work in this time period is prohibited by the building codes.
3. Amending the constituent documents.
The procedural legislation has no detailed regulations for the enforcement procedure of this type or requirement. As the judicial enforcement officer does not have the authority to amend the constituent documents, as well as the ability to compel the registration authority to accomplish this, such enforcement documents are in most cases impracticable.
For example, the judicial enforcement officer cannot hold a general meeting instead of the debtor and apply to the registration authorities with the relevant protocol. This action cannot be perfonned either by the collector or another person.
In this regard, when the debtor is absent and there is no possibility to identify the debtor’s whereabouts, and in case the debtor fails to fulfill the executive document’s requirements after imposition of administrative sanctions it is difficult to appoint the body authorized to execute this decision.
We believe that the way out of this impasse is the adjustment of the legislation on registration of legal entities by assigning the judicial enforcemenl officer powers to appeal to the registration authority instead of the authorized legal person entities to amend the debtor’s constituent documents or by direct appeal to the registering authority to amend the debtor’s constituent documents made by the claimant or the Court.
4. Performing certain actions (performing certain works).
The main actions mat the debtor must perform include repair works, reconstruction works, and other similar works. At the same time, I would like to note that in contrast to the Russian Federation, the documents on houses and other buildings demolition being submitted to the enforcement authorities of the Republic of Belarus are rare and may be seen as isolated incidents.
The main issues arising when enforcing the documents of this category are the following: searching for the organization able to perform the work specified in the court’s decision in the case the debtor’s impossibility or failure to perform them; funding these works.
In addition, sometimes there are questions about the enforceability of the court’s decision and the adequacy of the financial costs associated with the decision implementation.
For example, according to the executive document, it was necessary to eliminate the defects made by the contractor during the construction of multistorey apartment building by increasing the height of the ceiling and changing the heating and ventilation system. Based on the essence of the stated tequirements, such enforcement involved rebuilding the house from scratch which affected the rights of other residents who claimed nothing and were the vast majority.
Therefore, the claimant filing a suit with such requirements must understand that in fact, the claimant can only rely on his or her own resources if the debtor fails to execute the court decision. In addition, there is no guarantee that the debtor will reimburse the incurred expenses in such situation. Therefore, if such circumstances arise, the claimant should not declare the corresponding non-property claims but file a suit claiming for action to recover damages.
5. Participation in the child’s upbringing.
This type of requirement is one of the most difiicult. The enforcement documents related to the participation in the child’s upbringing (arrangements for contacts between a child ind the parent) is not clearly defined in the legislation. As a rule, the court that rendered decision specifies the date, time, location, where the contact between a child and the parent will take place. It is also often that the court rules out that this communication should take place on non-working days (weekends). Therefore, the judicial enforcement officer implements enforcement during off-hours.
Based on the practice, such requirements take along time before they are enforced. There are no legally specified conditions under which the enforcement proceedings can be terminated. Due to this circumstances if the judicial enforcement officer repeatedly (within 2-3 months) verifies proper execution of voluntary execution proposal.
The legislation does not set enforcement proceedings can be completed under any circumstances. In view of these circumstances, in the case of repeated testing bailiff (for 2-3 months) the proper implementation of proposals for voluntary execution by the obliged party, the proceedings are completed.
Often there are situations when a child refuses to communicate with the parent-claimer. Or when the parent with whom the child lives (debtor) submit san application to the judicial enforcement ofiicer about instituting the administrative action against the other parent for whom the communication procedure was established, if that parent fails to appear at the time scheduled by the court.
In this case, in accordance with the procedural legislation, if the claimant by his or her actions (inaction) prevents the executive document enforcement, the executive document is returned to the judicial enforcement officer without further execution.
In general, we believe that performing actions stated in this category of executive documents should take place with the participation of competent authorities and individuals, bodies of trusteeship and guardianship, child protective services, education authorities, psychologists, because the enforcement of these court decisions can cause significant damage to the child’s psyche. At the same time, we see that the mediation is quite promising if it helps to resolve the conflicts, because interpersonal conflicts often cause filing lawsuits, and subsequently with the requirements of the decision enforcement. Such a method of dispute resolution, in our opinion, may be useful for other categories of non-property claims.
Other Features of Enforcement Practice
To secure the enforcement actions taken by the judicial enforcement officers the photo and video recordings are used, police officers and housing maintenance services are involved.
In order to optimize working in this area the practice of requirements of this category enforcement is examined, the work with government agencies is coordinated, explanatory work with citizens is carried out in order to avoid cases when the initially impossible demands are applied.
It seems to us, that another motivating factor can be the developing at the legislative level the possibility of imposing additional costs on the guilty party to avoid applications with such requirements and create an optimal mechanism of motivating the debtors to voluntary execute the court decisions.