Ukraine: Enforcement Proceedings

Last Updated: 25 April 2019
Article by Ihor Kravtsov

Similar to many other states, governmental power in Ukraine is divided into three branches: legislative, executive and judicial. The court as a legal institution is called to ensure the rights, freedoms and legitimate interests of a person, to create the necessary guarantees for their implementation and to develop an effective mechanism for their protection in case of violation. However, it is often not enough to judge the parties fairly to protect their rights. The court decision is still to be executed. Enforcement proceedings is a separate branch of legislation that determines whether the person or organization will achieve the desirable outcome, and whether the act of justice will be completed for one. Even the European Court of Human Rights notes that the enforcement of a judgment made by any court should be regarded as an integral part of the "judicial process" for the implementation of Article 6 of the European Convention on Human Rights, which provides for enforcement of court decisions that cannot be left unfulfilled.

Legislative Regulation Basis

The main legal acts regulating enforcement proceedings are the Law of Ukraine On Enforcement Proceedings and the Law of Ukraine On the Bodies and Persons Enforcing Enforcement of Court Decisions and Decisions of Other Bodies, the relevant editions of which are valid from 2016.

In more detail some provisions are specified in the Instruction on the Organization of Enforcement of Decisions, approved by the Order of the Ministry of Justice of Ukraine.

Accordingly, compulsory execution of the decisions is entrusted to the executive service of the state, which operates within the Ministry of Justice of Ukraine since 1999, and to private executors, which in fact began to operate last year. Their task is to execute the decisions, enforcement of which is stipulated by law, in a timely, complete and impartial manner. The ground for enforced execution is the writ of execution received by the collector. The writ can be submitted for the enforcement within three years from the date of issue.

The parties to the enforcement proceedings are the collector and the debtor. The collector is a natural or legal person or a state, in favor or in interests of which an executive document was issued. According to the current legislation, debtor is a natural or legal person, a state, defined by a writ of execution, on which the obligation to enforce the decision is imposed. Registration of a writ of executions, documents of executive proceedings, fixing of executive actions is carried out in an auto-mated system of enforcement proceedings. Access to the system is public and free of charge, it is provided on its official website on the Internet. The automated system provides the ability to view, search, copy and print information, based on common web browsers and editors, without the need to use specially designed technological and software tools, and without restrictions around the clock.

The enforcement proceedings are financed by such payments:

  • advance payment, which the collector pays prior to submission of the application for enforcement (2% of the amount for enforcement of property claims);
  • executive fee (for state enforcement officers) and basic remuneration (for private executors), which is charged at the rate of 10% of the amount drawn from the debtor;
  • funds for the costs of enforcement proceedings, recovered from the debtor.

The Order of the Court Decision Execution

In order to initiate the enforcement proceedings, the party concerned (the collector) must obtain a writ of execution. The law defines many types of writs of execution, the most typical of which are the executive inscriptions and orders, rulings and decrees of courts, executive inscriptions of the notary, and executive orders.

Upon receipt of the enforcement document, the collector composes an application for the opening of enforcement proceedings, pays an advance payment on the costs of enforcement proceedings, attaches a writ of execution and submits the package to the state executive service or a private executor.

In case when the documents are in accordance with the current legislation and are submitted correctly, the executor should open the enforcement proceedings. The appropriate ruling is made on the opening of the enforcement proceedings. In property disputes, along with the opening of enforcement proceedings, an arrest may be imposed on the debtor's property.

The measures of forced execution are:

  • execution upon property of the debtor;
  • extraction of certain items from the debtor and transfer of them to the collector;
  • other measures, provided for by a court decision.

In order to carry out executive actions, the executor shall, when it is necessary, involve the attesting witness, police officers, representatives of other bodies and institutions in accordance with the procedure established by law.

In the event of non-compliance with the lawful requirements of the executor, one may be brought to administrative or criminal responsibility.

Industry Innovations

The last major changes in the enforcement proceedings were initiated by the 2016 reform, when the Laws of Ukraine On Executive Proceedings and On the Bodies and Persons Executing the Enforcement of Court Decisions and Decisions of Other Bodies were adopted. Despite the seemingly sufficient time to change the situation in practice for the better, the innovations have not become tangible for today.

The most significant step was the introduction of the private executors institute.

Ideologists of the reform predicted that the situation with the implementation of the national courts decisions, the corresponding indicators of the successful completion of the proceedings of which were very low, should be dramatically improved. However, today the private enforcement resulted in the increase in the share of executed decisions in economic and civil disputes by 12%, making the overall figure higher by 18%, which is still nothing to be proud of. The total amount of executive documents which are in the work of private executors does not reach up to UAH 1 billion, and the number of completed executive proceedings throughout Ukraine is less than 300 cases. In almost 2 years only about 100 people have managed to master a new profession and start to work as a private executor. According to estimates of the experts, Ukraine needs around 3000-4000 private executors to achieve two goals: to significantly improve the percentage of successful decisions and to create a real competition for state enforcement officers. Thus, a pace of reform is rather slow, but there is a hope that the most complicated steps have already been taken and the process would continue in the future.

Moreover, today there are some legal conflicts in the regulation of private executors' work, which the Ministry of Justice of Ukraine aspires to resolve soon. In particular, these conflicts relate to unified proceedings involving both private and public executors. The project with the specified changes is being prepared for submission to the Parliament.

In general, a private executor should be a citizen of Ukraine who has reached 25 years of age, has a higher law degree not lower than a master's level, knows a state language, has practiced in the field of law for at least two years and has passed a qualification examination. A special Qualification Commission is created to organize a qualification examination and to decide on the issuance of a private executor's certificate. Data on all private executors who received the relevant certificates are entered into the Unified Register of Private Executors. The law restricts the powers of a private executor to perform certain types of decisions, usually those that are socially sensitive and related to the state or state bodies. The supervision of the private executors' activities is exercised by the Disciplinary Commission.

Another innovation is the creation of a Unified register of debtors. It should promote the effectiveness of enforcement proceedings and the interaction of executors with other bodies. The Unified register of debtors is a systematic database of debtors, which is a part of an automated system of enforcement and is aimed at promulgating information on debtors' default in real time and preventing the alienation of property by debtors. Information on debtors in this register is open. According to the plan, in case of attempts by the debtor, who is already in the register of debtors, to register real property rights, the registrar, who carries out such registration, should refuse them.

One more innovation in the field of decisions enforcement is the cancellation of the terms for the debtor`s independent execution of decisions. Until the adoption of the new version of the Law of Ukraine On Enforcement Proceedings, the state enforcement officer specified a term of up to 7 days in a resolution on the opening of enforcement proceedings for the need of the debtor to execute the decision on its own. Today, the enforcement of the decision begins immediately from the date of the enforcement proceedings opening. This approach seems rather positive, since it has financial incentives for debtors to comply on time with court or other bodies decisions. In the opposite case, the debtor will have to pay 10% more from the amount of collection as an executive fee.

Innovations also apply to changes in the terms of the enforcement proceedings. In particular, the new terms for presenting the writ of execution and the general period of enforcement proceedings have been established. The general deadline for submission of the writ of execution has been increased from 1 year to 3 years, however, there are several exceptions. Regarding the period of enforcement proceedings implementation, the previous edition of the Law of Ukraine On Enforcement Proceedings have set a six-month period from the date of the issuance of a resolution on the opening of enforcement proceedings and a two-month time limit for the implementation of a non-monetary nature decision. In the new edition of the Law such terms are not set at all. However, it has been determined that in the case if the actions taken during the year by the executor to search for the debtor's property proved to be fruitless, the writ of execution is to be returned to a collector.

In general, in any law-governed state, the right to access the justice remains ineffective and ephemeral without the final enforcement of judicial decisions, as well as constitutional guarantees of the human rights protection are reduced to false claims on paper, and a fair court decision loses a significant portion of its value. Therefore, today the enforcement proceedings in Ukraine can be considered not only an independent sphere of legal activity, but also an indicator of the general process of reforms in the state.

Originally published by Ukrainian Law Firms 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions