News

Is it necessary to pay for enforcement of court ruling?

30.05 2019


If you need a fast and reasoned answer – no, because on 15 May, 2019 part 2 of Art. 26 of the Law of Ukraine “On enforcement actions” was recognized unconstitutional and such as ceased to be in force. This provision provided earlier for a necessity to attach a receipt for payment of the advance to the application for enforcement of the ruling.

Such positive ruling of the Constitutional Court was caused by a complaint of an individual who noted that the enforcement of the adopted court ruling necessitated payment of the advance amounting to two minimum wage;, however, because of his bad financial situation he was not able to use his right to enforcement of the adopted court ruling. Based on the provisions of part two, Art. 26 of the Law, the state enforcement officer refused to start the enforcement while the courts of all instances whereto the individual had applied referred to same provisions and did not admit such refusal unlawful and did not protect the individual’s rights.

The author of the application remarked that the provisions of part two of Art. 26 of the Law set uneven conditions for starting the enforcement procedure: such conditions are favourable for the state authorities (they do not make the advance payment) and burdensome for a common citizen (except certain privileged categories of persons);  the process of restoration of the violated right of a citizen should be ensured by the state, particularly in the instance when the debtor, who did not fulfil the court ruling, is a state body, and the person seeking the exaction – is a low-income person.

When making its ruling the Constitutional Court noted that the state has a positive obligation to ensure enforcement of the court ruling, however, a certain provision of part two of Art. 26 of the Law transfers such obligation of the state, concerning the obligatory advance payment, on said person in whose favour such ruling was made which levels out the essence of his constitutional right to legal protection and contradicts provisions of  Articles 3 and 8, parts first and two of Art. 55, and parts first and two of Art. 129-1 of the Constitution of Ukraine.

The full text of the Constitutional Court Ruling can be obtained at https://zakon.rada.gov.ua/laws/show/v002p710-19

With a view of ensuring execution of this ruling of the Constitutional Court the State Enforcement Service Department sent, on 17 May, 2019, a letter to the Heads of the Chief Enforcement Services of the Chief Territorial Administrations of Justice in the regions and in Kyiv wherein the Department defined that when an enforcement document is produced for execution the person seeking the exaction has no obligation to pay the advance and attach the appropriate receipts to the applications for the enforced execution of the ruling.

Therefore, in case of a refusal to initiate enforcement proceedings because of a non-presentation of the receipt confirming the advance contribution payment, it is possible to refer not only to the resolution but also to said letter of the Department.