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Publication date: 30.04.2024
lawyer, 23 years of experience in enforcement.
Enforcement of court decisions is a component of the right to a fair trial and one of the procedural guarantees of access to court, which is provided for in Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
The Law of Ukraine "On Enforcement Proceedings" provides parties to enforcement proceedings and other participants with a list of rights and obligations that they must strictly observe during execution of enforcement documents. Since the executor is a participant in the enforcement proceedings, he accordingly also has his rights and obligations.
Article 5 of the Law of Ukraine provides grounds, if any, for which the executor (private or state) cannot execute the decision, namely:
1) the debtor or debt collector is the executor himself, persons close to him (persons who live together, are connected by common life and have mutual rights and obligations with the executor (including persons who live together but are not married) , as well as regardless of the specified conditions - husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-granddaughter, son-in-law, daughter-in-law, father-in-law, mother-in-law, father-in-law, mother-in-law, adopter or adoptee, guardian or custodian, a person under the guardianship or guardianship of the executor), persons related to him.
Related persons are defined as legal and/or natural persons, relations between which may affect the conditions or results of their activities or the activities of the persons they represent, taking into account the following criteria:
- the executor directly and/or indirectly or through related persons owns the corporate rights of a legal entity that is a party to enforcement proceedings, or jointly with a legal entity and/or an individual that is a party to enforcement proceedings, owns the corporate rights of any legal entity ;
- the executor has the right and/or authority to appoint or elect a one-person executive body or a collegial composition of the executive body/the composition of the supervisory board of the specified legal entities.
2) the debtor or debt collector is a person who is in labor relations with such an executor;
3) the performer, a person close to him or a person who is with the performer in labor relations, has a real or potential conflict of interests;
In the presence of the specified grounds, the executor is obliged to declare self-recusal, or it may be that the executor has been declared recusal by the parties.
Importantly! The appeal must be motivated, set out in writing and can be filed at any time before the end of the enforcement proceedings.
The procedure for impeachment of the state executor:
In order to resolve the issue of impeachment of the state executive, the parties to the executive proceedings should contact the head of the department or the head of the higher-level state executive service body.
The issue of dismissal of a state executive who has not declared self-recusal is decided by the head of the department to which the state executive is subordinate.
The issue of removal, self-removal of the head of the department or all state executives of the specified department is decided by the head of the higher-level state executive service body.
An application for impeachment or self-impeachment of a state executive must be considered within five working days.
The result of consideration of an appeal regarding the impeachment of a state executive is a resolution on granting or refusing to grant an impeachment, self-impeachment of the head of the department or all state executives of the department. Such a resolution may be appealed within 10 days to a superior manager or to a court,
The procedure for revocation of a private executor:
The question of disqualification of a private executor who has not declared self-disqualification is decided by the private executor himself within five working days after the receipt of the relevant application.
When self-revocation is declared, the private executor is obliged to return the executive document to the debt collector or transfer it, with the consent of the debt collector, to another private executor or the relevant department of the state executive service.
The resolution of a private executor on self-recusal or refusal of recusal is appealed by the parties to the enforcement proceedings within 10 days before the court.
The procedure for withdrawing involved persons from the execution of decisions:
an expert, a specialist, a subject of evaluation activity - a business entity, a translator may not participate in executive proceedings and are subject to disqualification in the event of:
- if they are close relatives of the parties, their representatives or other persons participating in the enforcement proceedings;
- interested in the result of the implementation of the decision,
- if there are other circumstances that raise doubts about their impartiality.
If there are grounds for disqualification, an expert, a specialist, a subject of evaluation activity - a business entity, a translator must declare self-disqualification, or disqualification may be filed by the debt collector, the debtor or their representatives.
An application for recusal or self-recusal must be reviewed within five working days, based on the result of which a reasoned resolution is issued on the acceptance or refusal to accept the recusal by an expert, specialist, subject of evaluation activity - business entity, translator.
By providing legal services, a lawyer or an attorney will help monitor compliance with legislation and, in the event of doubts about the impartiality of the participants in executive proceedings, will conduct a legal analysis of the situation and, if necessary, ensure a court proceedings and challenge illegal actions that entailed a violation of rights. Legal Service "Consultant" will provide a suitable specialist for professional advice and support in enforcement proceedings, if necessary, will provide lawyer advice or online assistance of a lawyer.
