Legal advice

A court decision, but not enforced: how to appeal the activity or inaction of the executor of the court decision

A won court decision does not always mean the end of the dispute, because between the legal recognition of the right and its actual restoration there is often a separate procedure – enforcement proceedings. At this stage, the parties may face delays in enforcement, formal responses, illegal resolutions, improper seizure of property or funds, or, conversely, a complete lack of necessary actions on the part of the enforcer. Therefore, the issue of appealing the activities or inaction of a state or private enforcer is an important tool for controlling that the court decision does not remain just a document.

The lawyers of the Repeshko and Partners law firm, to whom our editorial team contacted, commented on how the parties to enforcement proceedings can determine the appropriate procedure for appealing the actions, decisions or inaction of the enforcer, what is the difference between the mechanisms of influence on the state and private enforcer, as well as what procedural circumstances may be crucial for the effective protection of violated rights.

The final stage of any court decision is its implementation, that is, enforcement. According to current legislation, any court decision can be executed in two ways: voluntarily or forcibly. Voluntary execution of a court decision is an ideal option, but almost unattainable. It would not be an exaggeration to say that at least 80% of court decisions are executed forcibly.

This compulsory procedure for executing court decisions is entrusted to bailiffs – state or private. And this is a separate, rather lengthy procedure with its own difficulties and obstacles. Therefore, questions very often arise: how to push the bailiff to fulfill his duties as quickly and as efficiently as possible? How to encourage him to act within the law and deter him from illegal actions? It should be noted that the way in which it is possible to influence the bailiff by appealing his actions or inaction will depend on whether a state or private bailiff executes a court decision.

Regarding a state bailiff, the appeal procedure is determined by Article 74 of the Law of Ukraine “On Enforcement Proceedings”. It provides for several possible ways to file a complaint, and the choice of a specific method depends on who is complaining, what actions or decisions are being challenged, and in which proceedings the violation occurred.

A complaint against the actions of a state bailiff may be filed:

  • in the name of the head of the department to which the state bailiff is directly subordinate, for the collector and other participants in the enforcement proceedings, but not for the debtor;
  • in the name of the head of the state enforcement service of a higher level – if the activities of the head of the department are being appealed;
  • to the court that issued the enforcement document – if it concerns appealing actions, decisions or inaction during the execution of a court decision;
  • to the administrative court – in particular, in cases regarding the state bailiff’s decisions on the collection of an enforcement fee, costs for carrying out enforcement actions or imposing fines.

Therefore, the parties to the enforcement proceedings and other participants in it, except for the debtor, have the possibility of appealing in the order of subordination, that is, along the power vertical. For the debtor, only the judicial procedure for appealing is provided.

It is worth knowing that a complaint in enforcement proceedings is submitted exclusively in writing. It must include:

  • the name of the state enforcement service body to which the complaint is filed;
  • the full name or surname, first name and patronymic of the collector and the debtor, their places of residence or stay for individuals or location for legal entities, as well as the name or surname, first name and patronymic of the representative of the party to the enforcement proceedings, if the complaint is filed by a representative;
  • details of the enforcement document: type of document, name of the body that issued it, date of issue, document number and its operative part;
  • the content of the decisions, actions or inactions that are being appealed, with reference to the violated norm of the law;
  • the circumstances by which the complainant substantiates his claims;
  • the signature of the complainant or his representative with the date filing a complaint.

Special attention should be paid to the appeal deadlines, since their omission often becomes an obstacle to further protection of rights. Decisions and actions of the executor, as well as officials of the state enforcement service bodies regarding the execution of a court decision may be appealed within ten working days from the day the person learned or should have learned about the violation of their rights, freedoms or legitimate interests. At the same time, the executor’s decision to postpone the execution of enforcement actions is appealed within a shorter period – within three working days from the day the person learned or should have learned about the relevant violation.

That is why when filing a complaint, it is important not only to describe the violation, but also to clearly indicate when exactly and in what way the person learned about it. If it is difficult to establish this point, one of the practical options may be to write to the executor with a specific question and receive a written answer. In this case, it is from the date of receipt of this answer that the ten-day period within which it is necessary to file a complaint can begin to be calculated.

See also  The Ministry of Education and Science of Ukraine has again taken up the task of updating the regulations on the certification of pedagogical workers, justifying this step by the need to improve the mechanisms of teacher evaluation. However, despite the promises to improve the educational process, the innovation raises doubts and concerns among many teachers. The impression is that instead of real support and development of the teaching staff, the new certification may become an additional tool of pressure on teachers. Are teachers ready for the new conditions? Will the new rules really contribute to improving the quality of education, or is this another bureaucratic requirement that focuses on formalities, ignoring the essence of pedagogical work? What's new in the regulation on certification of teachers The Ministry of Education and Science of Ukraine has updated the Regulation on Attestation of Pedagogical Employees (Order of the Ministry of Education and Science of Ukraine from 09.09.2022 No. 805, as amended by the Order from 10.09.2024 No. 1277) in order, according to the officials themselves, to improve the mechanism of teacher evaluation. According to the new order, the following changes were made to the regulation: regulated the issue of awarding pedagogical titles and qualification categories to teachers who do not have higher education; It has been determined that teachers who transfer to other educational institutions to work in the same positions or interrupt their work shall retain their pedagogical titles and qualification categories until the next attestation’. The procedure for the establishment of attestation commissions has been improved and the list of entities that may establish them has been defined. In particular, the possibility of establishing attestation commissions by private educational institutions and/or their founders has been envisaged; The awarding of the pedagogical titles ‘senior teacher’, ‘senior teacher’ and ‘senior educator’ has been regulated. They are awarded to teachers who, based on the results of previous attestation, have been assigned (confirmed) a qualification category not lower than ‘second category specialist’ (or the corresponding tariff category has been established) and whose work experience is more than 3 years; the assignment of such pedagogical titles is standardised: ‘teacher-methodist’, ‘teacher-methodist’, ‘educator-methodist’, ‘teacher-organiser-methodist’, ‘practical psychologist-methodist’, ‘circle leader-methodist’, ‘senior counselor-methodist’. They are assigned to teachers who work in the relevant positions and who, according to the results of previous attestation, have a qualification category not lower than ‘specialist of the highest category’ (or the corresponding tariff category is set), higher education and more than 5 years of work experience; It has been determined that level I attestation commissions may be established in educational institutions and separate structural subdivisions with at least 15 pedagogical staff; The issue of attestation of pedagogical workers who have a workload in several academic subjects has been regulated. In addition, not only taking professional development courses, but also receiving education in an institution of higher, professional pre-university education for the next 5 years will be counted as professional development. Also from now on, in case of teaching several subjects, teachers independently choose the sequence of professional development within the total volume of professional development (150 hours or 30 ECTS credits). Also according to the new order, after the certification sheet on the decision of the commission is issued, the head of the educational institution must issue a corresponding order, which is a document confirming the assignment of a qualification category or pedagogical title to a teacher. According to the Ministry of Education and Science, more detailed requirements for teachers' professional activities have now been established, which allows for an objective assessment of their work. teachers are obliged to take regular professional development courses and participate in professional seminars, which contributes to their professional development. the success of students has become an important indicator of the effectiveness of a teacher's work, encouraging teachers to improve teaching methods. more autonomy has also been granted to local attestation commissions, which allows them to take into account the region of the country. What teachers think about the renewal of attestation In turn, teachers themselves note the growth of bureaucratic procedures and the need to spend more time on preparation for such attestation. Indeed, the updated requirements for teachers are becoming more and more stringent every year. Teachers are forced to fulfil a lot of new criteria, submit a lot of documents and undergo complicated inspection procedures. But are these requirements justified? In most cases, they turn into additional bureaucracy that has nothing to do with improving the quality of teaching. On the contrary, teachers spend more and more time on reports rather than on the real development of their students. Here are a few comments indicative of the general mood of educators. "The problem is that the heads of the MES have no profile pedagogical education and none of them has worked in a regular school. That is, the object of management for them is terra incognito. So what adequate management decisions do you want from them?’, - Ihor Likarchuk, former head of the Ukrainian Centre for Education Quality Assessment, commented on the situation. Victoria Kudinova, teacher, Facebook user: ‘And maybe teachers should test the MES, we will also prepare a programme, and a quest 24/7 arrange, and lastly we will certify...’ Yarema Romaniuk, teacher, Facebook user: "Every year they change something. Apparently, the clerks from the Ministry have to show their ‘vigorous’ activity?" Teacher, Facebook user: "Thank you very much. The peddlers of the director and pedagogical councils recognise the courses or not. And people pay money and pass. This is really done for people!" Larisa Kotlyarenko, Facebook user: ‘The only + that can become and - it is the awarding of the highest category and titles in their own collective.’ However, the most painful remains another thing - despite the new requirements, the attitude to the teacher as a key figure of society has not changed. The teaching profession, which should be one of the most prestigious in the country, is still undervalued. Teachers, who are expected to deliver high results and innovative approaches to their work, continue to receive meagre salaries, often lacking even the basic resources for quality teaching. With conditions like these, it is not surprising that more and more teachers are leaving the profession. Miserable salaries, constant demands, and lack of support from the authorities - all of this makes even the most dedicated teachers consider changing careers. When the state does not value its teachers, it loses not only its personnel but also its future. After all, without competent and motivated teachers, Ukrainian education is sinking into the abyss. The paradox is that the Ministry of Education and Science constantly puts forward new requirements for the certification of teachers, but who protests the very officials who come up with ridiculous reforms? Have any of them worked in a school under real conditions? Do they realise what they demand from a teacher who, apart from the educational process, still has to solve a bunch of social problems of his students and work without proper support? The main question is: to what extent are the new certification rules really necessary? The MES does not offer concrete solutions on how to improve the working conditions of teachers or increase their motivation. Instead, attestation becomes a kind of test that a teacher has to pass every five years. But instead of supporting and developing specialists, certification turns into an additional stress factor. The new criteria do not take into account the real problems of the educational process: the decreasing number of students in classes, insufficient funding for schools, outdated teaching materials. What will happen to education in such conditions in a few years? If the trend with the outflow of teachers continues, Ukrainian schools will simply have no one to teach our children. Ukrainian education is on the threshold of dangerous changes. If the Ministry of Education and Science does not change its attitude to teachers, and the state does not recognise the importance of decent pay and working conditions for teachers, we risk losing a whole generation of quality specialists. After all, when teachers leave, it is not only empty seats in schools. The future of the country is left without support. It is time to recognise that reforms in education should start not with new requirements, but with care for those who work for children every day. Teachers deserve decent salaries, respect and real support, not another bureaucratic burden. Otherwise, attestation, which is supposed to assess professionalism, will turn into another tool of pressure that will get to those who have not yet broken down. How the process of attestation of pedagogical workers has changed Attestation of teaching staff in Ukraine has a long history, which changed in accordance with the social, political and economic conditions of the country. Over time, the process has been transformed, but its main shortcomings have remained unchanged: increasing demands on teachers without appropriate support and incentives. Let's take a look at how attestation was carried out in the past, what has changed now and how it has affected teachers. In Soviet times, attestation of teaching staff in Ukraine was a formal procedure that was aimed at ensuring that teachers met the requirements of the state education system. Attestation was based on clearly defined standards that had little to do with the actual skills and abilities of teachers. Evaluation was done more to maintain the image of the system than to improve the quality of education. The certification process was fully controlled by the state authorities. Teachers had to undergo compulsory certification at certain intervals. Attestation took place once every five years and teachers received qualification categories that affected their salaries and status in the education system. Although a system of professional development existed, it was more nominal. Most teachers took professional development courses only to fulfil formal requirements. After independence, Ukraine retained many features of the Soviet attestation system but tried to introduce certain changes over time. Until the latest changes, the attestation system remained bureaucratic. As before, attestation was carried out every five years. The main purpose was to confirm teachers' qualification categories. Teachers were evaluated by a special attestation commission, which consisted of school administration, trade union representatives and local education authorities. The assessment was based on teacher's work reports, analyses of lessons attended and documents confirming participation in seminars and professional development courses. Attestation was related to the assignment of qualification categories (specialist, specialist of the second, first and highest categories). A teacher's salary depended on the category. The process remained formal and often did not correspond to the real quality of teachers' work. Bureaucratisation and lack of funding prevented the creation of a real motivation system for teachers. Teachers were often required to report and participate in seminars without real changes in the teaching process. In 2023, the Ministry of Education and Science of Ukraine announced new changes to the Regulation on Attestation of Pedagogical Employees. The changes are aimed at improving the quality of education and simplifying the attestation process, but for many teachers they have become an additional burden. The new requirements have added even more burden to the routine work of teachers. Teachers now have to fulfil a greater number of criteria concerning both professional achievements and the use of modern technologies in teaching. An important component of the new system has been the assessment of pupils' progress. This has caused much discussion, as success depends on many factors that the teacher cannot always influence (social status of the family, material and technical support of the school, etc.). Teachers are now required to take regular refresher courses and participate in professional seminars. While this could be a positive aspect, many teachers note that they are forced to take these courses formally, with no real opportunity to put the knowledge into practice. Attestation commissions now have more autonomy, but this has also led to differences in approaches to attestation in different regions. With the increase in the number of criteria for certification, teachers are under more pressure. Many teachers complain that they have to spend more time preparing for certification than actually teaching. The constant pressure to meet new requirements and ensure high student results leads to stress and emotional burnout. Teachers note that the bureaucratic approach to assessing their work creates additional difficulties instead of support. Despite the new requirements, the financial situation for most teachers has not improved. Salaries remain low and additional responsibilities and requirements are not accompanied by appropriate financial incentives. Due to the increasing workload and lack of adequate conditions, many teachers are leaving the profession. This process only exacerbates the shortage of qualified teachers in Ukrainian schools. It is obvious that despite attempts to update the system of certification of teaching staff in Ukraine, most of the changes do not address the main problems, such as low salaries, insufficient support from the state and excessive bureaucratisation. The state should realise that in order to improve the situation it is necessary not only to introduce new criteria, but also to provide real support for teachers, in particular financial support, and to create conditions for their professional development that would meet modern requirements. Attestation of teaching staff abroad Attestation of teaching staff in foreign countries differs significantly from the Ukrainian system and can serve as an example for the introduction of more effective approaches to the assessment of teachers' professional performance. For example, in Finland, which is known for its high-quality education system, teacher certification is practically absent in the usual sense. In Finland, the emphasis is on teacher training and professional autonomy. Teachers receive a high level of academic training while they are still in higher education, as a master's degree is compulsory. However, teachers regularly participate in continuing education and professional development. At the same time, there is no formal appraisal system, but rather student learning outcomes are assessed. In turn, continuous professional development is voluntary and at the same time strongly encouraged by the state. In the US, teacher certification is regulated at the state level, so systems may vary. In general, however, the process involves: Regular reviews and evaluations. Administrators or head teachers observe lessons and evaluate teaching skills and ability to work with students. Professional development. teachers have the opportunity to take professional development courses. Many states require teachers to obtain certificates or licences to prove their knowledge and skills. Evaluation based on student performance. in some states, student performance on standardised tests is an important part of certification. This is controversial because student performance depends on many factors. Canada uses teacher evaluation systems similar to those in the United States, but with certain features. In some provinces, teachers must undergo regular observations and evaluations at different stages of their careers. For example, novice teachers undergo frequent examinations and supervision to test their ability to handle the classroom. Teachers must also undergo periodic professional development courses. As in the US, student results also affect teacher appraisals. In the UK, teacher certification is done through a system known as OFSTED (Office for Standards in Education), the national regulator of educational quality. Appraisal takes place through supervision and inspections, during which lessons are examined. Supervisors can come to lessons unannounced to assess a teacher's professionalism. Great emphasis is placed on pupils' results, progress and level of knowledge. Teachers are required to participate in professional development programmes and this is also taken into account in the appraisal process. Singapore, one of the countries with the most successful education systems, has introduced a comprehensive system of teacher appraisal and professional development. All teachers are required to undergo stages of regular performance evaluation based on the following criteria: performance evaluation - includes lesson observation, teacher self-assessment and student surveys; learning outcomes - student progress plays an important role; professional development - teachers should participate in continuous professional learning programmes, which are also taken into account in the evaluation. As we can see, foreign teacher appraisal systems show that the effectiveness of appraisal often depends on teachers' professional development, autonomy and support system. In many countries, teachers do not experience excessive pressure of bureaucracy, and the process of evaluation of their work is more aimed at helping them develop professional skills rather than punishing them. So, Ukrainian education is on the edge of the abyss, and the next innovations of the Ministry of Education and Science are only bringing it closer to disaster. The new certification requirements have become an additional burden on teachers who are exhausted by bureaucracy, low salaries and lack of real support. Instead of improving the working conditions of teachers, we see a mass exodus of professionals from a system that exhausts them. The question is, who will stand in front of the classroom tomorrow when today's teachers leave the profession? Unless we stop this process and offer real changes - higher salaries, less bureaucracy, support for professional development - Ukrainian education risks being left without those who create it. Famous personalities have long spoken about what a society without education is like, so it would be useful for officials from the MES to listen to them: "Without education, nations quickly turn into obedient slaves ’ - Jean-Jacques Rousseau. "A society that does not invest in education prepares the ground for its own decline ’ - Heinrich Heine. ‘Without education, society is a mob, easier to manipulate than to develop’- William Dubois. "A people deprived of education is like a man without eyes ’ - Konstantin Ushinsky. "Education is the most powerful weapon that can be used to change the world. Without it, the world will remain in the chains of ignorance.’ - Nelson Mandela. "The darkness of ignorance feeds all forms of evil, and lack of education feeds the darkness ’ - Thomas Jefferson. ‘Without education, society lives for today without building a future for itself ’ - John Dewey. "Education is the guardian of liberty. Without it, society will be confined to a framework of blind obedience ‘ - George Washington.

Regarding private enforcement agents, the appeal procedure is also defined in Article 74 of the Law of Ukraine “On Enforcement Proceedings”. While the system of the state enforcement service has existed for many years and the general procedure for its work is more familiar to the participants in the proceedings, the institution of private enforcement agents remains relatively new. Because of this, in practice it is not always clear where to turn in case of violations, how to distinguish the judicial appeal procedure from the disciplinary mechanism and which bodies can exercise control over the activities of a private enforcement agent.

Article 74 of the Law of Ukraine “On Enforcement Proceedings” provides that the decisions of a private enforcement agent on the collection of the main remuneration, costs of enforcement proceedings and fines may be appealed by the parties, other participants in enforcement proceedings and persons to the court that issued the enforcement document, in accordance with the procedure established by law. At the same time, the law provides for the possibility of appealing to the relevant administrative court the decisions of the state bailiff on the collection of the enforcement fee, as well as the decisions of the private bailiff on the collection of the main remuneration, enforcement proceedings costs and fines. Such an appeal is carried out in accordance with the procedure prescribed by law.

In terms of form and content, the complaint must meet the same requirements as those mentioned above: it is submitted in writing, must contain the necessary details, a description of the appealed decisions, actions or inaction, justification of the claims and the signature of the complainant or his representative. The deadlines for the appeal also remain the same.

At the same time, there is another response mechanism for a private bailiff – disciplinary. It does not replace a judicial appeal, but can be applied in cases where there is a possible violation by the private bailiff of professional duties, rules of ethics or other requirements related to his activities. The law stipulates that the Council of Private Executors of Ukraine has the right, upon the request of a participant in enforcement proceedings or on its own initiative, to inspect the activities of a private executor. Such an inspection is carried out to determine whether the private executor complies with:

  • the Charter of the Association of Private Executors of Ukraine;
  • the Code of Professional Ethics of a Private Executor;
  • the decisions of the Council of Private Executors of Ukraine and the Congress of Private Executors of Ukraine related to the activities of private executors.

The inspection by the Council of Private Executors of Ukraine is carried out by sending a written request to the private executor within the scope of the inspection. Within fifteen calendar days from the date of receipt of such a request, the private executor is obliged to provide the Council of Private Executors of Ukraine with explanations and copies of relevant documents.

After receiving explanations from a private executor or after the expiration of the period within which such explanations should have been provided, if they have not been submitted, the Council of Private Executors of Ukraine is obliged to consider the materials within thirty working days. Based on the results of such consideration, the question is resolved whether there are signs of a disciplinary offense and whether it is necessary to submit a submission to the Disciplinary Commission of Private Executors to bring the private executor to disciplinary liability.

In addition, the Ministry of Justice of Ukraine exercises control over the activities of a private executor by conducting scheduled and unscheduled inspections. Unscheduled inspections may be conducted on the basis of:

  • a private enforcement agent’s application for an inspection;
  • written appeals of participants in enforcement proceedings regarding decisions, actions or inaction of the private enforcement agent;
  • failure by the private enforcement agent to submit reports or other information within the established time limits or submission of inaccurate information.

During an unscheduled inspection, only those issues that became the basis for its conduct are clarified. A repeated inspection on issues that have already been the subject of an inspection is not allowed, except in cases provided for by law. If signs of a disciplinary offense by a private enforcement agent are detected during the inspection, the Ministry of Justice of Ukraine shall submit a reasoned submission to the Disciplinary Commission to bring the private enforcement agent to disciplinary liability.

The legislation also provides that a private executor is liable for his decisions, actions or inaction, as well as for damage caused to third parties. Such liability may be administrative or criminal in the manner and to the extent established by law, as well as disciplinary in the manner provided for by the Law of Ukraine “On Enforcement Proceedings”.

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The grounds for holding a private executor to disciplinary liability are his commission of a disciplinary offense, i.e. violation of the requirements that the law imposes on the professional activities of a private executor. This applies not only to obvious violations during the execution of decisions, but also to failure to comply with professional ethics, disclosure of professional secrets, improper performance of one’s duties or even engagement in activities that are incompatible with the status of a private executor. Separately, the law includes failure to comply with the charter of the Association of Private Executors of Ukraine, as well as decisions of the Council of Private Executors of Ukraine and the Congress of Private Executors of Ukraine as disciplinary offenses.

It should be noted that, depending on the nature of the violation and its consequences, various types of disciplinary sanctions may be applied to a private contractor – a warning, a reprimand, suspension of the private contractor’s activities for a period of up to six months, or the termination of the private contractor’s activities altogether. At the same time, during martial law, the legislation establishes separate rules for monitoring the activities of private contractors. In particular, the terms for consideration by the Disciplinary Commission of applications for bringing a private contractor to disciplinary liability and the terms for making decisions on the application of disciplinary sanctions are suspended until the termination or cancellation of martial law.

In addition, during martial law, scheduled inspections of the activities of private contractors are not carried out, except for certain cases expressly provided for by law. One such exception is situations when doubts arise regarding the actual implementation of activities by a private contractor at the address of his office. In this case, the Ministry of Justice of Ukraine, upon a written request from a party to enforcement proceedings, has the right to conduct a relevant inspection at the location of the private enforcement agent’s office, information about which is entered in the Unified Register of Private Enforcement Agents of Ukraine.

The subject of such an inspection is precisely the confirmation of the fact that the private enforcement agent is carrying out his/her activities in the office. The date and time of the inspection of the private enforcement agent shall be notified in advance, but no later than five calendar days before its conduct by sending a message to the e-mail address specified in the Unified Register of Private Enforcement Agents of Ukraine, as well as additionally by telephone. If the results of the inspection confirm the absence of the private enforcement agent at the location of his/her office, such private enforcement agent shall be considered temporarily absent.

The law also provides for the possibility of a prompt response to illegal procedural documents of a private enforcement agent during martial law. In accordance with the Law of Ukraine “On Amendments to Certain Laws of Ukraine Regarding the Activities of Private Enforcement Agents and the Enforcement of Court Decisions, Decisions of Other Bodies (Officials) During the Period of Martial Law” dated July 27, 2022, a resolution or other procedural document of a private enforcement agent, if they contradict the requirements of the legislation on the enforcement of decisions, may be canceled by a resolution of the head of the structural unit of the Ministry of Justice of Ukraine, which ensures the implementation of state policy in the field of enforcement of decisions, or a person performing his duties.

Such cancellation is possible upon application by a party to enforcement proceedings or a person whose rights have been violated, if there is no information about judicial proceedings between the same parties, on the same subject and on the same grounds. At the same time, the private enforcement agent himself during martial law also has the right, upon application by a party to enforcement proceedings or on his own initiative, if there are objective grounds, to cancel the resolution or other procedural document issued by him or part thereof.

Therefore, the effectiveness of any appeal largely depends not only on the fact of the violation itself, but also on how well-argued the position of the complainant is, whether his arguments are supported by written evidence, and whether the complaint was filed within the established time limit and to the appropriate body.

We advise you to perceive enforcement proceedings as a full-fledged legal process in which the passivity of the party can cost a real result even after the court has been won. If the executor does not act, acts with delay or makes decisions that violate the rights of the participant in the proceedings, it is necessary not to limit yourself to oral appeals, but to record the violation in writing, monitor the deadlines, correctly determine the appeal body and file a reasoned complaint with evidence.

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