Enforcement proceedings amid military aggression in Ukraine: current challenges

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ENFORCEMENT PROCEEDINGS AMID MILITARY AGGRESSION IN UKRAINE: CURRENT CHALLENGES

Oksana Uhrynovska*1 Natalia Slyvar*2

Abstract

Summary

1. Background of the Study. - 2. Legal Regulation of Enforcement Proceedings in the Occupied Territories during 2014-2022. - 3. Protection of National Interests in Open Enforcement Proceedings amid the Military Aggression. - 4. Concluding Remarks.

Keywords: war in Ukraine, access to justice, enforcement of court decisions, enforcement proceedings, private enforcement agents, state enforcement service, problems of enforcement proceedings

In this note, the peculiarities of the implementation of decisions of courts or other jurisdictions during the military aggression against Ukraine were studied. The note also reveals the main causes of problematic situations in the implementation of enforcement proceedings under martial law and proposes comprehensive solutions based on law enforcement practice and specific changes to current legislation.

Particular attention was paid to the legal regulation of enforcement proceedings in the occupied Ukrainian territories during 2014-2022.

The conclusion discusses the contradiction of unresolved issues in the theory and practice of legislation in implementing enforcement proceedings during the period of martial law as a result of significant updating and reforms.

Background of the study

On 24 February 2022, the Russian federation launched a military attack on Ukraine. By openly invading Ukraine by land, sea, and air, they grossly violated the UN Charter and numerous norms of international law and committed an act of aggression, the most serious and gross violation of international law.3

On the same day, the President of Ukraine, Volodymyr Zelensky, signed Decree No. 64 `On the imposition of martial law in Ukraine'. This decision was made on the basis of a proposal from the National Security and Defense Council and in accordance with Ukrainian law.4

According to Art. 64 of the Constitution of Ukraine, the constitutional rights and freedoms of man and citizen may not be restricted, except in cases provided by the Constitution of Ukraine.5

In conditions of martial law or a state of emergency, certain restrictions on rights and freedoms may be imposed, indicating the term of these restrictions. Art. 20 of the Law of Ukraine `On Martial Law' provides that the legal status and restrictions on the rights and freedoms of citizens and the rights and legitimate interests of legal entities in martial law are determined in accordance with the Constitution of Ukraine and this Law.6

The national regime of enforcement proceedings is determined by the Law of Ukraine `On Enforcement Proceedings'.7 On 24 February 2022, about 2 million 300 enforcement proceedings were underway in the State Enforcement Service. According to the report of the Association of Private Performers of Ukraine for December 2020 - October 2021, 275 private performers and 4250 state performers operate in Ukraine.89

However, in order to ensure the protection of national interests in connection with the military aggression of the Russian Federation and to ensure the constitutional rights and freedoms of man and citizen in martial law, we need to resolve some issues of enforcement.

Legal regulation of enforcement proceedings in the occupied territories during 2014-2022

After the beginning of the armed conflict, Ukrainian enforcement proceedings ceased to function in the temporarily occupied territories of the Luhansk and Donetsk oblasts, but the number of legal issues among residents of these territories and internally displaced persons only increased. For example, law enforcement agencies were forced to leave unfinished enforcement proceedings in the Donetsk and Luhansk oblasts, where the authorities suspended their powers because they were unable to remove documents during the relocation of territory uncontrolled by the Ukrainian authorities. It is clear that it is impossible to continue to take measures to enforce any decision without the state executor having an executive document.

Obtaining an executive document in the case, the materials of which remained in the occupied territory, is too complicated a procedure and requires the restoration of lost case materials.

In the context of the research question, it should be noted that in Part 4 of Art. 4 of the Law of Ukraine `On temporary measures for the period of anti-terrorist operation', it is determined that the list of settlements on the territory of which public authorities temporarily do not exercise their powers and the list of settlements located on the line of contact are approved by the Cabinet of Ministers of Ukraine, which ensures their timely updating. Law of Ukraine `On temporary measures for the period of the anti-terrorist operation' of 2 May 2014 no 1669-VII accessed 13 April 2022; On approval of the list of settlements on the territory of which state authorities temporarily do not exercise their powers, and the list of settlements located on the contact line: Order of the Cabinet of Ministers of Ukraine dated 7 November 2014 no 1085-p accessed 13 April 2022. R Kuibida, M Galabals (eds), Justice in the East of Ukraine in the Context of Armed Aggression of the Russian Federation: Report on the Results of the Capacity Study forensic' the system of ensuring justice in the context of the armed conflict in the east Ukraine accessed 13 April 2022. The list of settlements in the territory over which public authorities temporarily do not exercise their powers and the list of settlements located on the line of contact have been approved. In particular, the bodies of the state executive service in the cities of Donetsk, Horlivka, Debaltseve, Dokuchaevsk, Yenakiieve, Zhdanovka, Makeyevka, Luhansk, Alchevsk, Pervomaisk, and others - more than 23 departments of the state executive service - cannot exercise their powers.

In 2018, a study called `Justice in the East of Ukraine in the Conditions of Armed Aggression of the Russian Federation' was conducted by a group of authors under the general editorship of Roman Kuibida and Markiyan Galabala. In particular, it was concluded that the actual reason for the impossibility of exporting case files in court and enforcement proceedings that lasted or were completed from the occupied territories and zones of active hostilities was the slowness in the actions of the central government. In addition, the abandonment of materials for enforcement proceedings in the temporarily occupied territory caused significant obstacles to the execution of court decisions. It should be noted that in the Block `Assessment of the relevance (presence) of problems of justice in eastern Ukraine in the context of armed conflict', 36.75%“ of respondents pointed to the insufficiency in the

legislation of Ukraine regarding enforcement proceedings of mechanisms that ensured the execution of court decisions in conditions of armed conflict, and 60.8% of respondents also highlighted the lack of access to the materials of court cases and materials of enforcement proceedings remaining in the temporarily occupied territories. Law of Ukraine `On temporary measures for the period of the anti-terrorist operation' (n 10).

We would like to draw your attention to the fact that the courts often refuse to restore the lost case materials, even if there is reliable information about the content of the court decision from the Unified State Register of Court Decisions.

Judicial practice illustrates that for the production of executive documents or their duplicates, the court often first restores the materials of lost court cases using information from the Unified State Register of Court Decisions as one of the sources of information and only after that do they apply court decisions for execution. We are convinced that these procedures should be simplified because the data of this register is sufficient for the publication of executive documents.

Also, as a result of the termination of the activities of state bodies and institutions in the occupied territories, the execution of court decisions in cases where such a body or institution was a party became more complicated.

In particular, enforcement proceedings in cases where the debtor was the body of the Pension Fund of Ukraine are extensive. Some of these bodies, which were in the temporarily occupied territory, were moved to the controlled territory, but the powers to serve the insured were transferred to other bodies of the Pension Fund. Therefore, there was a problem with the determination of the debtor - whether it will be a relocated body or one that has acquired powers to serve policyholders.

The courts in such disputes took the position that there are no grounds for replacing the debtor since he or she was moved to the territory controlled by Ukraine and did not cease his or her activities.

In practice, there were also situations when state executors refused to open enforcement proceedings, citing the impossibility of implementing the court decision as a result of the antiterrorist operation on the territory of the Luhansk and Donetsk regions, without even finding out whether the debtor had property outside certain districts of the Donetsk and Luhansk regions. Judicial practice has developed an approach in which the actual registration of an enterprise in the territory where state authorities temporarily do not exercise their powers does not exclude the possibility of finding the debtor's property outside that territory.

One of the most recent studies on this topic in 2021 is that of the UNDP `Availability of archival and judicial cases remaining in the territory of Donetsk and Luhansk regions not controlled by the Government of Ukraine, which was conducted by Olena Sapozhnikova and Oleksiy Plotnikov. It was established that the courts considering applications from persons who came from the territory of the Donetsk and Luhansk regions not controlled by the Government of Ukraine to the territory controlled by the Government of Ukraine do not allocate such cases in any way - that is, the number of cases transferred is not accounted for, since the State Judicial Administration has not developed such a criterion of electronic reporting. Availability of archival and court cases remaining in the non-government-controlled territory of Donetsk and Luhansk regions: Report on the results of the study accessed 13 April 2022.

Taking into account the above, there are certain shortcomings of the national legal regulation of enforcement proceedings in the conditions of military aggression of the Russian Federation:

• the absence of the circumstances of temporary occupation of territories and armed aggression of the Russian Federation as a basis for suspending the period of presentation of executive documents for execution or renewal of such a period;

• the imperfection of judicial practice in disputes arising in connection with the resumption of enforcement proceedings;

• the absence of typical algorithms for enforcement proceedings in the presence of problems caused by the aggression of the Russian Federation as methodological recommendations to state and private performers;

• the insecurity of the possibility due to amendments to the legislation for the production of certified copies of court decisions and the issuance of executive documents and their duplicates on the basis of data from the Unified State Register of Court Decisions without applying the procedure for restoring materials of lost proceedings.

Protection of national interests in open enforcement proceedings amid the military aggression

In connection with the introduction of martial law in Ukraine, amendments and clarifications were made to the normative legal acts regulating the principles of enforcement proceedings.

1. The changes particularly affected the functioning of the automated system of enforcement proceedings under martial law. It should be noted that the state enterprise `National Information Systems' reported on the emergence of force majeure circumstances and temporarily suspended the work of the Unified and State Registers of the Ministry of Justice of Ukraine, especially the Automated System of Enforcement Proceedings and the Unified Register of Debtors. Information on payments collected by executors in the course of enforcement of decisions: Government portal accessed 13 April 2022. This, in turn, makes it impossible for public and private executors to carry out executive actions. This decision was made in order to prevent any unauthorised actions with the information of the Unified and State Registers of the Ministry of Justice of Ukraine by the enemy and to ensure the preservation and protection of the information contained in them, as well as in connection with numerous cyberattacks.

2. The Cabinet of Ministers of Ukraine immediately introduced temporary measures (until the termination or cancellation of martial law) in the field of enforcement proceedings, namely:

• In order to ensure the life of the population under martial law, individuals are allowed to carry out expenditure operations from accounts that have been arrested by state executive service bodies, private executors, without taking into account such arrest, provided that the amount of recovery under the executive document for such a person does not exceed UAH 100,000. Therefore, debtors whose debt does not exceed UAH 100,000 can use the arrested account and do not need to apply to the executor at all by resolution On ensuring the implementation of settlements of the population under martial law: Order of the Cabinet of Ministers of Ukraine dated 2 March 2022 no 198-p accessed 13 April 2022. (Order of the Cabinet of Ministers of Ukraine dated 2 March 2022 No. 198-p).

• In order to ensure the protection of national interests on future claims of the state of Ukraine, there is a moratorium (prohibition) on execution, including involuntarily, monetary, and other obligations, on creditors (collectors) connected with the Russian Concerning Ensure Protection National Interests per Future claims State Ukraine into Communication with Military Aggression Russian Federation: Resolution Cabinet Ministers Ukraine dated 3 March 2022 no 187 accessed 13 April 2022. Federalization or persons associated with the aggressor state (Cabinet of Ministers of Ukraine dated 3 March 2022 No. 187).

• In order to ensure settlements with the population and the budget, debtor legal entities are allowed to carry out expenditure operations from accounts from which funds are seized by state executive service bodies or private executors exclusively for the payment of wages in the amount of not more than five minimum wages per month per employee of the debtor legal entity, as well as for the payment of taxes, fees, and a single contribution to compulsory state social insurance On ensuring the implementation of settlements of enterprises, institutions, organizations under martial law: Resolution of the Cabinet of Ministers of Ukraine dated 11 March 2022 no 212-p accessed 13 April 2022. (Cabinet of Ministers of Ukraine dated 11 March 2022 No. 212-p).

At the same time, it should be stated that the legal status and restriction of the rights and freedoms of citizens and the rights and legitimate interests of legal entities under martial law are determined in accordance with the Constitution of Ukraine and the Law of Ukraine On the Legal Regime of Martial Law' dated 12 May 2015 No. 389-VIII. The Constitution of Ukraine stipulates that the procedure for execution of court decisions is determined exclusively by the laws of Ukraine, and the state ensures the execution of a court decision in accordance with the procedure established by law. Law of Ukraine `On Legal Mode Military Status' of 12 May 2015 no 389-VIII < accessed 13 April 2022.

Taking into account the specified specifics of the regulation of the sphere of enforcement proceedings, the Verkhovna Rada of Ukraine adopted the Law of 15 March 2022 No. 2129-IX `On Amendments to Section XIII “Final and Transitional Provisions” of the Law of Ukraine “On Enforcement Proceedings”' Law of Ukraine `On Amendments to Section XIII “Final and Transitional Provisions” of the Law of Ukraine “On Enforcement Proceedings”' of 15 March 2022 no 2129-IX accessed 13 April 2022. (hereinafter referred to as the Law), which entered into force on 26 March 2022 and by which the above-mentioned provisions were legislated.

We consider it necessary to note that from now on, there is a moratorium (ban) on:

• fulfilment, including involuntarily, monetary, and other obligations, creditors (collectors) that are members of the Russian Federation or citizens of the Russian Federation, legal entities established and registered in accordance with the legislation of the Russian Federation, legal entities established and registered in accordance with the legislation of Ukraine as the ultimate beneficial owner, member, or participant (shareholder) who has a share in the authorised capital of 10 per cent or more, which is part of the Russian Federation, a citizen of the Russian Federation, or a legal entity established and registered in accordance with the legislation of the Russian Federation;

• actions that have or may result in the alienation of real estate, securities, corporate rights, vehicles, air and sea vessels, or inland navigation vessels by persons associated with the aggressor state, except for free alienation in favour of the state of Ukraine, as well as in favour of persons associated with the aggressor state or in favour of the Russian Federation.

It is also established that transactions (including power of attorney) concluded in violation of the moratorium are null and void, and notarization of transactions violating the moratorium is prohibited.

At the same time, several exceptions to the application of the moratorium (prohibition) have been established. Thus, the corresponding restriction does not apply to:

• citizens of the Russian Federation who live on the territory of Ukraine legally;

• legal entities established and registered in accordance with the legislation of Ukraine, the ultimate beneficial owner, member, or participant (shareholder) of which are exclusively citizens of the Russian Federation living on the territory of Ukraine legally;

• legal entities established and registered in accordance with the legislation of Ukraine, the ultimate beneficial owner, member, or participant (shareholder) of which are exclusively citizens of Ukraine and citizens of the Russian Federation living on the territory of Ukraine legally.

3. The law prohibits the opening of enforcement proceedings and the enforcement of decisions on the territory of administrative-territorial units temporarily occupied as a result of military aggression of the Russian Federation during such occupation.

4. According to the decisions on recovery of alimony, enterprises, institutions, organisations, individuals, individual entrepreneurs who make deductions from wages, pensions, scholarships, and other income of the debtor, transfer the recovered funds to the account specified in the application or application of the collector and, in the absence of details of the collector's account, to the appropriate account of the state executive service body or private executor. The amendments adopted by the Law do not provide for the prohibition of accrual and collection of penalties for late payment of alimony.

5. In addition, according to the materials of the government portal to ensure the life of citizens, the Ministry of Justice of Ukraine sent a letter to the National Bank regarding the failure of banks to take into account the resolutions of state and private performers on the arrest of funds when debtors open new accounts in banks, which, in turn, will inform all banking institutions of Ukraine about this. Clients can open such an account and use it without taking into account the previously imposed arrest before the end of martial law in Ukraine.²⁰

military aggression terrorist proceeding

References

1. UN General Assembly suspended Russia from the Human Rights Council accessed 13 April 2022.

2. Decree of the President of Ukraine no 64/2022 `On the introduction of martial law in Ukraine' < 13 April 2022.

3. Constitution Ukraine, 28 June 1996 accessed 13 April 2022.

4. Law of Ukraine `On the Legal Mode Military Status' of 12 May 2015 no 389-VIII accessed 13 April 2022.

5. Law of Ukraine `On Enforcement Proceedings' of 2 June 2016 no 1404-VIII accessed 13 April 2022.

6. Report of the Association of Private Performers of Ukraine for December 2020 - October 2021 13 April 2022.

7. Law of Ukraine `On temporary measures for the period of the anti-terrorist operation' of 2 May 2014 no 1669-VII accessed 13 April 2022.

8. Order of the Cabinet of Ministers of Ukraine dated 7 November 2014 no 1085-p accessed 13 April 2022.

9. R Kuibida, M Galabals (eds), Justice in the East of Ukraine in the Context of Armed Aggression of the Russian Federation: Report on the Results of the Capacity Study forensic B the system of ensuring justice in the context of the armed conflict in the east Ukraine accessed 13 April 2022.

10. Availability of archival and court cases remaining in the non-government-controlled territory of Donetsk and Luhansk regions: Report on the results of the study < accessed 13 April 2022.

11. Information on payments collected by executors in the course of enforcement of decisions: Government portal accessed 13 April 2022.

12. On ensuring the implementation of settlements of the population under martial law: Order of the Cabinet of Ministers of Ukraine dated 2 March 2022 no 198-p 13 April 2022.

13. Concerning Ensure Protection National Interests per Future claims State Ukraine into Communication with Military Aggression Russian Federation: Resolution Cabinet Ministers Ukraine dated 3 March 2022 no 187 accessed 13 April 2022.

14. On ensuring the implementation of settlements of enterprises, institutions, organizations under martial law: Resolution of the Cabinet of Ministers of Ukraine dated 11 March 2022 no 212-p accessed 13 April 2022.

15. Law of Ukraine `On Legal Mode Military Status' of 12 May 2015 no 389-VIII accessed 13 April 2022.

16. Law of Ukraine `On Amendments to Section XIII “Final and Transitional Provisions” of the Law of Ukraine “On Enforcement Proceedings” of 15 March 2022 no 2129-IX accessed 13 April 2022.

17. Information on payments collected by executors in the course of enforcement of decisions: Government portal < accessed 13 April 2022.

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