Publication date: 23.04.2024
lawyer, 23 years of experience in enforcement.
Article 74 of the Law of Ukraine "On Enforcement Proceedings" provides that the decision, actions or inaction of the state bailiff may also be appealed by the debt collector and other participants in enforcement proceedings (except the debtor) to the head of the department to which the state bailiff is directly subordinate, or to the head of the state enforcement agency higher level However, this norm does not deprive the debtor of the right to apply to the head of the department or a higher-level manager with a statement about the elimination of violations of the debtor's rights in enforcement proceedings.
Therefore, one of the responsibilities of heads of state executive bodies at all levels is to control the actions of state executives. One of the ways to carry out such control is to check the legality of executive proceedings.
In accordance with the current legislation, the circle of persons who have the right to carry out such inspections is established, namely:
- the director of the Department of the State Executive Service of the Ministry of Justice of Ukraine - executive proceedings that are (were) being carried out in the Department of Enforcement of Decisions of the Department of the State Executive Service of the Ministry of Justice of Ukraine, the Department of Enforcement of Decisions in the Kyiv region of the Department of Enforcement of Decisions in the City of Kyiv, departments of enforcement of decisions of departments of enforcement of decisions, departments of the state executive service;
- Head of the Department of Enforcement of Decisions of the Department of State Executive Service of the Ministry of Justice of Ukraine - executive proceedings that are (were) being executed in this department;
- the head of the department for enforcement of decisions in the city of Kyiv - executive proceedings that are (were) being implemented in the department of enforcement of decisions in the district of Kyiv of this department;
- head of the Department of Enforcement of Decisions in the Kyiv region of the Department of Enforcement of Decisions in the City of Kyiv - executive proceedings that are (were) being implemented in this department;
- head of the department for enforcement of decisions - executive proceedings that are (were) being implemented in the department of enforcement of decisions of this department and departments of the state executive service subordinate to it;
- head of the department of enforcement of decisions of the department of enforcement of decisions - executive proceedings that are (were) being implemented in this department;
- head of the department of the state executive service - executive proceedings that are (were) being executed in this department.
Verification of the legality of executive proceedings by the above-mentioned officials is carried out on the basis of the materials of the executive proceedings or their copies, which are subject to demand from the relevant body of the state executive service or the relevant state executive. Such verification of the legality of executive proceedings can be carried out on the authority of the head of the higher body of the state executive service and on his own initiative.
The instruction of the head of the higher body of the state executive service to check the legality of executive proceedings is given in writing.
Verification of the legality of executive proceedings by officials is carried out on the basis of the materials of the executive proceedings or their copies, which are subject to demand from the relevant body of the state executive service. A reasoned resolution is issued by the relevant official on the inspection of the executive proceedings and the demand for its materials.
The requested executive proceeding is sent to the state executive service body that requested it, with a cover letter within the terms specified in the resolution on its request.
Verification of the legality of enforcement proceedings must be carried out within ten working days, and summary enforcement proceedings - within fifteen working days from the date of receipt of the requested enforcement proceedings.
A resolution is issued on the results of the verification of the legality of the enforcement proceedings, which must specify: the grounds for the verification of the enforcement proceedings; terms of inspection; in the motivational part - the number of the enforcement proceedings, the details of the enforcement document, the date of the opening of the enforcement proceedings, the state executive who carries out (has carried out) the enforcement, a summary of the enforcement actions taken and their compliance with the requirements of the current legislation with reference to the relevant provision of the Law; in the operative part - a conclusion taking into account the requirements of the legislation regarding the actions of the state executive in executive proceedings, in the event of an appeal against the actions (inaction) of the head of the state executive service body - regarding his actions, the person who is obliged to take measures to eliminate violations of the law is determined (in the event their detection), the person entrusted with monitoring the implementation of this resolution; the term of execution of the resolution; circle of persons to whom copies of the resolution are sent; other necessary information.
Based on the results of checking the legality of the enforcement proceedings, the official inspecting the enforcement proceedings, in order to eliminate the violations discovered during the inspection, has the right, if they contradict the requirements of the law, to cancel the resolution or other procedural document (or part thereof) issued by his resolution in executive proceedings by the state executor and to oblige the state executor to carry out executive actions in the manner established by this Law. If an official has made a decision to cancel a resolution or other procedural document (or part thereof) issued in executive proceedings in the operative part of the resolution on the results of checking the legality of executive proceedings, the resolution or document that is canceled (the part that is canceled) is indicated.
If, during the inspection of the executive proceedings, a violation of the requirements of the Law is detected, a higher-level official, in the operative part of the resolution, instructs the head of the state executive service body, to which the state executive is directly subordinate, to take actions aimed at eliminating violations of the current legislation.
An official of the state executive service body, who carried out an inspection of an executive proceeding and found a violation of the requirements of the law, is obliged to ensure direct control over this executive proceeding until the identified violations are completely eliminated.
Taking into account the above, it would be advisable for the party to the enforcement proceedings, in the event of violations of its rights, to seek the advice of a relevant specialist to obtain legal advice. A lawyer or an attorney will analyze the situation and draw up an appropriate procedural document with which it will be appropriate to apply to the relevant authorities in order to eliminate violations of one's rights.
