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.
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”.
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.




