Deputy Chief of the Staff of the Supreme Court of the Kyrgyz Republic
Compulsory Eviction and Installation by the Bailiff in the Kyrgyz Republic
According to the Constitution of the Kyrgyz Republic a variety of forms of ownership admits and equal legal protection of private, state, municipal and other forms of ownership is guaranteed in the Kyrgyz Republic.
The property is inviolable. Nobody can be randomly deprived of the property.
Everyone has the right to inviolability of the dwelling and other objects which are owned by it or other right. Nobody can get into the dwelling and other objects against the will of the person in whose use they are.
Production of a search, dredging, survey and implementation of other actions and also penetration of authorities into the dwelling and other or other right objects which are owned, are allowed only on the basis of the judicial act.
In cases provided by the law a search, dredging, survey and implementation of of other actions, penetration authorities into the dwelling and other objects which are owned or other right, are allowed without judicial act. The legality and validity of such actions are subject to consideration by court. The above-stated guarantees and restrictions extend also to legal entities.
The order of execution of executive documents, including compulsory eviction and installation, is defined by the Law of the Kyrgyz Republic “On Executive Proceeding and the Status of Bailiffs in the Kyrgyz Republic” (of March 18, 2002 No. 39).
Now special attention is paid to the questions connected with compulsory performance of judicial acts, namely on compulsory eviction and installation, as they have special social value. At the same time it is necessary to emphasize that compulsory eviction is possible not only from inhabited, but also from non-residential premises, i.e. these procedures can concern not only citizens (natural persons), but also legal entities.
Compulsory performance of judicial acts, including compulsory eviction and installation, is carried out within executive proceeding. Executive proceeding is based on real, full and timely voluntary or compulsory execution of judicial acts and acts of other bodies.
Execution of judicial acts and acts of other bodies of the Kyrgyz Republic is assigned to bailiffs of the Kyrgyz Republic.
The bailiff of the Kyrgyz Republic is the official who is in public service and carrying out the tasks of execution of judicial acts and acts of other bodies assigned to him by the law.
Bailiffs in the Kyrgyz Republic serve at Judicial department of the Supreme Court of the Kyrgyz Republic.
Requirements of the bailiff for execution of judicial acts and acts of other bodies are obligatory for public authorities, economic entities, public associations, officials and citizens in all territory of the Kyrgyz Republic.
The bailiff in the Kyrgyz Republic has the right: 1) to issue decrees, to make protocols on administrative offenses in the cases provided by the law of the Kyrgyz Republic; 2) to claim necessary information, explanations and helps on the questions arising when making executive actions (in case of reclamation of information and helps containing the data which are a bank secrecy, the right of reclamation of such data shall be specified in the judicial act); 3) in case of vagueness of the requirements which are contained in executive documents based on which executive actions are made to appeal to the court or other organs which issued the executive document for clarification of an order of their execution; 4) to file the petition to the court or other organ on the questions which arose when making executive actions including on the question of change of a method and order of execution; 5) to call citizens and officials according to the executive documents which are in production; 6) to realize in organizations of any forms of ownership in accordance with the established procedure monitoring over execution of executive documents and guiding of financial documentation on them; 7) to enter locations and storages occupied or belonging to debtors and also other persons in the presence of the data confirming presence at them of the property owned by the debtor in case of need compulsorily to open locations and storages and to perform inspections in the presence of witnesses; 8) to describe, arrest, except, transfer to storage and to realize in accordance with the established procedure the arrested property, except for the property withdrawn from circulation according to the legislation; 9) to impose arrest accounts of debtors in banks and treasuries and also securities in the amount of specified in the executive document; 10) to take measures to searching of the property beionging to the debtor on which under the law collecting can be converted; 11) at execution of executive actions to ask in necessary cases for the help staff of bodies of internal affairs, national security and the military personnel of the Kyrgyz Republic; 12) to transfer to appropriate authorities materials on the facts of violations of requirements of the law for which the legislation of the Kyrgyz Republic provided criminal or administrative liability and to make other actions provided by the legislation of the Kyrgyz Republic.
Execution of the executive document by the bailiff of the Kyrgyz Republic on eviction of the debtor and on installation of the execution creditor treat separate types of executive proceeding.
In case of arrival of executive documents on eviction the bailiff, being guided by Art. 17 of the Law of the Kyrgyz Republic “On Executive Proceeding and the Status of Bailiffs in the Kyrgyz Republic,” excites executive proceeding.
The bailiff, starting execution of the executive document, according to Art. 48 of the above-stated Law, hands to the debtor the offer on his voluntary execution no more than 10 days in time.
In case of non-execution of the executive document on eviction of the debtor in the time established by the bailiff eviction is executed by the bailiff forcibly.
At the same time the bailiff officially informs the debtor about day and time of compulsory eviction. The absence of the debtor informed on day of eviction isn’t an obstacle for execution of the executive document.
Eviction consists of release of the room specified in the executive document from the moved person, his property, pets and prohibition the moved person to use the freed room.
Eviction by the bailiff is executed in the presence of witnesses, and in necessary cases with assistance of law-enforcement bodies with the obligatory levy of execution made by the bailiff.
The bailiff in necessary cases provides storage of property of the debtor with assignment on him the incurred expenses. Storage of property of the debtor is carried out in time, not exceeding three years after which the specified property is implemented in the order established for realization of owner less property. Funds from realization of property of the debtor are allocated in the corresponding budget.
Execution of the executive document on eviction of the debtor is made out by the bailiff by the act of eviction.
At execution by the bailiff of the executive document on eviction of the debtor there are many difiiculties because of which execution of compulsory eviction of the debtor can last for months, and sometimes for years.
For example, the bailiff officially informs the debtor about day and time of compulsory eviction. In this case there can be difficulties at delivery of the notice to the debtor as the debtor can avoid obtaining the notice or in the freed room there can be besides the moved debtor also minor children.
Also tightening of term of executive proceeding is the fact that the debtor makes out the lease contract of inhabited hiring with other persons, but the debtor disappears to other address.
During compulsory eviction debtors and also unknown persons can maintain resistance with threats to set fire to rooms or themselves. Bailiffs in turn inform the fire service, the emergency medical service and law-enforcement bodies on the forthcoming compulsory eviction for ensuring protection of public order and assistance in overcoming the obstacles rendered from debtors. However even such actions cannot yield positive results on execution of the executive document on eviction, therefore there is a need to transfer time and date of eviction.
Despite the above-stated examples and situations, in most cases bailiffs execute eviction in full and in time.
As for installation, it is a measure of compulsory impact on the debtor, therefore in practice it as well as eviction is seldom carried out in the frictionless way. In most cases the debtor evades from judgment execution. Problems with compulsory installation arise often after the divorce of spouses when the former spouse expels other of the apartment, changes locks, etc. The former spouse, whose rights have been violated, appeals to court with the claim for compulsory installation.
After making decision on compulsory installation of the execution creditor by the court the bailiff, starting execution of the executive document on installation of the execution creditor, just as in a case with eviction, provides the term of voluntary execution by the debtor.
In case of non-execution of the executive document on installation of the execution creditor in time, established by the bailiff for voluntary execution, installation is carried out forcibly by the bailiff.
Installation consists of providing of a free entrance of the execution creditor to the room specified in the executive document by the bailiff and his accommodation (stay) in it. At the same time it is explained to the debtor that compulsory installation is executed and he is obliged not to interfere in accommodation (stay) with the execution creditor.
In case of hindrance by the debtor to execution of the executive document on installation of the execution creditor executive actions are made with participation of witnesses, and in necessary cases law-enforcement bodies. At further hindrance to accommodation (stay) of the execution creditor the specified actions are made again and the measures of administrative influence provided by the legislation of the Kyrgyz Republic are applied.
Execution of the executive document on installation is made out by the bailiff by the act of installation.
The executive document is considered fulfilled if the possibility of daily free use with corresponding accommodation is provided to the execution creditor.
Executive proceeding on the executive document can be resumed if after drawing up the act of installation of the executlon credltor the debtor interferes with accommodation (stay) of the execution creditor again. In case of hindrance to accommodation (stay) of the execution creditor by the person who according to the executive document isn’t the debtor, executive proceeding can’t be resumed. The issue of installation in this case is resolved in a judicial proceeding.
For failure to follow legal requirements of the bailiff natural and legal entities can be brought to administrative or criminal responsibility according to the legislation of the Kyrgyz Republic.
Bringing to responsibility doesn’t exempt the debtor from a duty to perform actions provided by the executive document.
The issue of bringing to responsibility of perpetrators is resolved by competent authorities on representation of the bailiff.
“FEDERAL BAILIFFS SERVICE
ALL-RUSSIAN STATE UNIVERSITY OF JUSTICE
BASHKIR STATE UNIVERSITY
THE ORDER OF ENFORCEMENT
OF NON-PROPERTY DEMANDS CONTAINED
IN ENFORCEMENT DOCUMENTS:
PROBLEMATIC ISSUES AND WAYS OF THEIR SOLUTION
Collection of Materials of the 7th International Scientinc and Practical Conference, 9-11 June 2016, Ufa, Republic of Bashkortostan
Editors-in-Chief D.V. Aristov and V.A. Gureev.
CTATYT, Moscow 2017. Pages: 335-340.