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DOI: https://doi.org/10.34069/AI/2022.54.06.5
How to Cite:
Prytuliak, V., Hofman, O., Verba, O., Shcherbak, S., Leshchenko, O. (2022). Protection of individual rights in enforcement
proceedings under martial law. Amazonia Investiga, 11(54), 50-56. https://doi.org/10.34069/AI/2022.54.06.5
Protection of individual rights in enforcement proceedings under
martial law
Захист прав особи у виконавчому провадженні в умовах воєнного стану
Received: June 20, 2022 Accepted: July 20, 2022
Written by:
Valerii Prytuliak19
https://orcid.org/0000-0003-2490-0225
Oleksandr Hofman20
https://orcid.org/0000-0002-3034-6550
Olha Verba21
https://orcid.org/0000-0001-9254-9575
Svitlana Shcherbak22
https://orcid.org/0000-0002-9969-3817
Oleksandr Leshchenko23
https://orcid.org/0000-0003-3103-6383
Abstract
The invasion of the Russian Federation on the
territory of Ukraine changed both the world order
and the state of protection of the rights of
individuals on the territory of Ukraine. The
introduction of martial law on the territory of
Ukraine introduced many restrictions, including
those regarding enforcement proceedings.
Therefore, it is essential to examine the specifics
of the security of individual rights in enforcement
proceedings under martial law. The purpose of
the work is to study the peculiarities of the
safeness of individual rights in enforcement
proceedings, caused by the state of war in the
territory of Ukraine. The research methods are:
dialectical, formal-legal, logical methods,
historical method, analytical method,
comparative-legal method. Thanks to the
conducted research, it was analyzed, the features
of enforcement proceedings under martial law
were analyzed, and special attention was paid to
the possibilities of protecting the rights of the
debtor and debt collector during martial law. It is
also examined how the state of operation of the
automated system of enforcement proceedings
affects the protection of the rights of the parties
19
Ph. D., Associate Professor of the Department of Civil Procedure of National University «Odesa Law Academy» Ukraine.
20
Ph. D., Associate Professor of Department of Economic Law and Procedure of National University «Odesa Law Academy» Ukraine.
21
Ph.D. candidate, Associate Professor at the Department of Civil Law Disciplines, Institute of Law, Lviv State University of Internal
Affairs, Ukraine.
22
PhD (Law), Associate Professor of the Department of Administrative and Information Law of Sumy National Agrarian University,
Ukraine.
23
Ph. D., Associate Professor of the Department of criminal law, process and criminalistics of the Kyiv Institute of Intellectual
Property of National University «Odesa Law Academy». (Ukraine).
Prytuliak, V., Hofman, O., Verba, O., Shcherbak, S., & Leshchenko, O. / Volume 11 - Issue 54: 50-56 / June, 2022
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to the enforcement proceedings, opportunities for
activities in controlled territories, and private
executors. Based on the studied materials, it was
concluded that there are currently several
significant restrictions in place to protect the
rights of individuals in enforcement proceedings,
but such restrictions are justified, taking into
account the need to ensure national security
against malicious actions and unauthorized
hacking of state services.
Keywords: enforcement proceedings, martial
law, protection of rights, state executor, private
executor.
Introduction
In Ukraine, it is determined that everyone has the
right to protect their rights and legitimate
interests in court. The procedure for enforcement
of decisions is not an exception to the general
rule. Ensuring individual rights in enforcement
proceedings plays an important role, taking into
account the provisions of the Constitution of
Ukraine, norms of international law, and general
standards for ensuring human rights.
Article 129-1 of the Constitution of Ukraine
guarantees the enforcement of a court decision in
the manner prescribed by law, and control over
the execution of a court decision is carried out by
the court (Law No. 254к/96-ВР, 1996).
Moreover, the court decisions enforcement is a
vital stage of judicial proceedings in accordance
with Article 6 of the Convention for the
Protection of Human Rights and Fundamental
Freedoms, which provides for the right to a fair
trial. Thus, the European Court of Human Rights
in its decisions has repeatedly noted that non-
execution of a court decision leads to violation of
the basic principle of the rule of law, and
negatively affects undisputed authority of
legislative, enforcement, and judicial authorities,
since in this case the ultimate goal of justice is
comprehensive protection of interests of citizens
and real restoration of their violated rights.
Due to the Russian barbaric full-scale attack on
Ukraine, martial law has been introduced in
Ukraine (Decree No. 64/2022, 2022).
Following the provisions of Art. 1 of the Law
"On the Legal Regime of Martial Law", martial
law provides for the granting to the relevant
bodies of state power, military command,
military administrations, and local self-
government bodies of the powers necessary to
avert the threat, repulse armed aggression and
ensure national security, eliminate the threat of
danger to the state independence of Ukraine, its
territorial integrity, as well as a temporary
restriction of the constitutional rights and
freedoms of a person and a citizen, as well as the
rights and legal interests of legal entities, with an
indication of the period of validity of these
restrictions (Law of Ukraine No. 1404-VIII,
2016) due to a threat.
According to Art. 12-2 of the Law of Ukraine
"On the Legal Regime of Martial Law", the
powers of courts, bodies, and institutions of the
justice system, provided for by the Constitution
of Ukraine, cannot be limited under the
conditions of the legal regime of martial law
(Law of Ukraine No. 1404-VIII, 2016).
As a result of the introduction of military
proceedings, enforcement proceedings as the
final stage of the judicial process have undergone
significant changes. At the same time, on the
other hand, it is extremely important to ensure
proper protection of the rights of the participants
in enforcement proceedings. In the conditions of
war, such protection of the rights of participants
in enforcement proceedings, taking into account
additional restrictions and risks caused by the
introduction of martial law, should be
investigated at the theoretical level and
strengthened at the level of law enforcement.
Theoretical Framework or Literature Review
Thus, Avtorgov (2022) considered the
innovations and risks of draft law No. 7312 in his
work. The author drew attention to the fact that
the authors of the draft law have absolutely no
noble goal – the destruction of the independence
of the institute of private executors and the
"manual management" of enforcement
proceedings that they have. The author argues
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that the current legislation defines that the state
executor and private executor are independent
during their professional activities, guided by the
principle of the rule of law, and act exclusively
following the law. It is prohibited to interfere
with state bodies, authorities, local self-
government, their officials, political parties,
public associations, and other persons in the
activities of the state executor, private executor
for enforcement of decisions. Instead, the draft
law allows for the possibility of unjustified and
arbitrary interference in the enforcement
proceedings of a private executor by officials of
the Ministry of Justice of Ukraine by canceling
resolutions or other procedural documents (in
particular, resolutions on the seizure of funds and
property) by a resolution of the head of the state
enforcement body at the request of not only the
party of the enforcement proceedings but also
any person who has nothing to do with this
proceeding. The author also draws attention to
the fact that the main scientific and expert
department of Verkhovna Rada in its opinion on
the above-mentioned draft law, in particular,
states: "...the proposed procedure for monitoring
the execution of enforcement documents by an
official of the state enforcement service also
contains corruption risks and may lead to the
violation of rights parties to enforcement
proceedings" and fully agrees with this statement
and believes that the draft Law "On Amendments
to Certain Laws of Ukraine Regarding
Enforcement of Court Decisions, Decisions of
Other Bodies (Officials) During Martial Law"
No. 7317 dated 26.04. 2022 should be rejected or
substantially revised.
In his work, Demchenko (2010) considered the
issue of the effectiveness of the execution of
decisions and the effectiveness of the
enforcement mechanism.
Features of enforcement proceedings during
martial law were analyzed by Kovalsky (2022).
Manoilenko and Myronov (2022) analyzed the
problematic issues of enforcement proceedings
during martial law. Researchers noted the
peculiarities of the suspension of enforcement
proceedings, the operation of the automated
system of enforcement proceedings, and other
changes.
Legislative regulation of enforcement
proceedings under martial law became the object
of Martynenko's (2022) research. The researcher
concluded that the changes to the procedure of
enforcement are temporary and due to the
introduction of martial law in the country. At the
same time, such changes are necessary in view of
the need to adapt all spheres of social life in order
to defeat the invaders.
Myroshnichenko (2022) also investigated the
peculiarities of enforcement proceedings during
military proceedings. The author drew attention
to the peculiarities of a lawyer's work in the
current situation, including that, even under
martial law, registers must work, alimony must
be collected, and court decisions must be
executed.
Morozov (2022) considered the procedural rights
of a person in enforcement proceedings,
including concerning a statement of challenge,
using the example of court practice.
The impact of martial law on the activities of
private contractors and control over their
activities under martial law was considered by
Lyapin (2022) in his article.
Sivavna (2022) considered the peculiarities of
the execution of court decisions under martial
law. The author noted that the legislator tries to
think about the average citizen of Ukraine and
place the emphasis as correctly as possible,
focusing on the rights of citizens and protecting
critical infrastructure, and this results in a more
vulnerable position for debt collectors compared
to debtors.
Finally, Shelever (2016) analyzed the
problematic issues of enforcement proceedings
in Ukraine and ways to solve them.
So, the specifics of the enforcement proceedings
in the conditions of martial law are of great
interest among scientists and lawyers, however,
the specifics of personal protection in
enforcement proceedings under martial law are
not yet sufficiently researched and require
attention.
Methodology
During the study of the peculiarities of personal
protection in enforcement proceedings under
martial law in Ukraine, the dialectical method
was used to consider the researched problems
and determine the main directions for improving
the institute of enforcement proceedings under
the Ukrainian legislation.
The historical method was used to study the issue
of the transformation of personal protection tools
in enforcement proceedings and the development
of enforcement proceedings in general, including
under martial law. Thus, this method made it
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possible to trace the chronology of the
development of legislation regarding
enforcement proceedings under martial law, its
changes, and the factors that influenced its
development were investigated using the
historical-legal method. In general, the use of the
historical method made it possible to trace the
evolution of legal regulation, as well as to
investigate scientific views on the protection of a
person in enforcement proceedings under martial
law.
The formal-legal method was used for the
purpose of analyzing legal norms, including a
detailed review of legal acts of domestic and
foreign legislation regulating the specifics of
enforcement proceedings under martial law.
Logical techniques were used in the
interpretation of legal norms.
Summarization of the research materials and
information in general about the possibilities for
the protection of a person in enforcement
proceedings under martial law in the conducted
research took place thanks to the use of the
analytical method.
A comparative legal method was used in the
comparative analysis of the features of personal
protection in enforcement proceedings under
martial law and under normal conditions in
Ukraine. In addition, the comparative legal
method was used to identify the general and
special aspects of enforcement proceedings
under the Ukrainian and foreign legislation, to
understand the international experience on the
researched issue, as well as for the
comprehensiveness of the conducted research.
Results and Discussion
Russia's military aggression against Ukraine
necessitated the adoption of special legislation to
regulate all spheres of social life in the changed
conditions. Changes directly related to
enforcement proceedings and affecting the
protection of the rights of a person in
enforcement proceedings are specified in the
Law of Ukraine "On Enforcement Proceedings".
According to Art. 1 of the Law of Ukraine "On
Enforcement Proceedings", enforcement
proceedings as the final stage of court
proceedings and enforcement of court decisions
and decisions of other bodies is a set of actions
of bodies and persons defined in this Law, aimed
at enforcement of decisions and carried out on
the grounds, within powers and in the manner
determined by the Constitution of Ukraine, this
Law, other laws and regulatory acts adopted
following this Law, as well as decisions that are
subject to enforcement under this Law (Law
No. 1404-VIII, 2016).
The specificity of the regulation of enforcement
proceedings led to the adoption of several
normative legal acts by the Verkhovna Rada of
Ukraine during martial law. But before analyzing
how the changes that were adopted during the
military procedure affected the protection of the
rights and interests of the parties to the
enforcement proceedings, let's consider what
changes took place.
Among them, the enforcement was stopped, the
replacement of debt collectors in enforcement
actions, and the debt collectors for which are the
Russian Federation or persons connected with
the aggressor state, were prohibited (the list of
such persons, their characteristics, and
exclusions are given in the norm). Also, during
the martial law on the territory of Ukraine,
natural persons can use funds from accounts that
have been seized by state and private executors,
if the debt does not exceed UAH 100,000, and
legal entities-debtors can carry out spending
operations from seized accounts exclusively for
the fulfillment salary obligations to their
employees, as well as to make mandatory
payments to the state. The enforcement of the
debtor's salary, pension, stipend, and other
income (except for alimony recovery decisions
and decisions for which debtors are citizens of
the Russian Federation) has been suspended. And
of course, it was forbidden to carry out executive
proceedings on the territories of Ukraine
temporarily occupied by the aggressor country.
Since the beginning of full-scale agrassion the
ASVP and the Unified Register of Debtors have
been blocked. And already on April 4, 2022, the
Order of the Ministry of Justice of Ukraine
No. 1310/5 "On some issues of access to the
ASVP and the Unified Register of private
executors of Ukraine during the period of martial
law" was adopted, which provided for equal
opportunities to restore access to the ASVP for
both state and private executors, which in turn
was supposed to unblock the activities of state
enforcement service bodies and private
executors. Paragraph 2, Clause 2 of Order
No. 1320/5 determined that for the entire
duration of martial law on the territory of
Ukraine, private executors/assistants of private
executors have access to the automated system of
enforcement proceedings terminated and
restored by the administrator of the automated
system of enforcement proceedings based on
written notification to the Department of State
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Enforcement Service of the Ministry of Justice of
Ukraine, which is prepared based on a written
request of a private executor (Order No.
1310/5, 2022). However, during April-May
2022, private executors sent appropriate appeals
to the Department of the State Enforcement
Service of the Ministry of Justice of Ukraine, but
as of the time of publication of this article, none
of them have been considered and none of the
private executors of Ukraine has received access
to the ASVP system.
Instead, on May 24, 2022, amendments were
adopted to the Order of the Ministry of Internal
Affairs No. 1320/5, which a certain way
complicated the procedure for restoring access to
the ASVP system for private executors and
provided that the notification of the Department
of the State Enforcement Service of the Ministry
of Internal Affairs, based on which access to the
ASVP system is restored sent only after the
private executor passes a check regarding the
compliance with the requirements of the current
legislation of the office in which the private
executor conducts activities, the existence of a
valid civil liability insurance contract, the
absence of debt for the use of ASVP (Order
No. 2068/5, 2022).
In accordance with the law, which provides for
the status of bodies and persons carrying out the
enforcement of court decisions in Ukraine, a
private executor is a person authorized by the
state to carry out enforcement activities under the
procedure established by law. A private executor
is a subject of independent professional activity.
According to Article 34 of the Law of Ukraine
"On Bodies and Persons Enforcing Court
Decisions and Decisions of Other Bodies", the
Ministry of Justice of Ukraine is the controlling
body and exercises control over the activities of
private contractors in the form of scheduled and
unscheduled inspections. The Law does not
provide for other forms of control; however, the
Order nevertheless establishes new forms of
control that will limit the rights of private
executors (Law No. 1403-VIII, 2016). At the
same time, state contractors who are located in
the territories controlled by Ukraine and where
hostilities are not taking place, work almost as
usual, but with restrictions, which will be
discussed a little later.
Regarding the peculiarities of ensuring the rights
of participants in executive proceedings during
martial law, we should note the following:
1. Access to materials of enforcement
proceedings. The parties, as before, can use
the number of the enforcement proceedings
and the access identifier to enter the ASVP,
that is, they are not deprived of the
opportunity to obtain information and copies
of documents on the enforcement
proceedings.
2. Alimony. During the period of martial law
on the territory of Ukraine, certain changes
appeared in the collection of alimony: state
executors can freely transfer funds to debt
collectors that have been deposited into the
accounts of state enforcement service
bodies. If the subject transferring alimony
does not have the details of the creditor, he
can transfer the amount to the account of the
executive service or a private executor,
respectively.
3. Enforcement of court decisions in territories
temporarily occupied by the aggressor
country is prohibited.
4. Depreciation. It is not prohibited to charge
and collect a penalty for late payment of
alimony, so the creditor can protect his
rights by applying to the court for the
collection of a penalty.
5. Debt collection for housing and communal
services is prohibited (Haichenko, 2022).
From the above, it can be seen that the
peculiarities of the enforcement during martial
law affected not only the parties to the
enforcement proceedings but first of all the
activities of private executors as subjects of the
enforcement process - initially due to the
suspension of access of private executors to the
Automated System of Enforcement Proceedings
and subsequently – failure to connect them to this
system, which completely blocked the activities
of private contractors, led to the actual loss of
work and income, the possibility of material
support in times of significant price growth.
Accordingly, the rights of the parties to those
enforcement proceedings, which at the time of
the full-scale invasion of the aggressor country
were being executed by private executors, turned
out to be generally unprotected, especially in this
context, attention should be paid to significant
limitations in the debtors' procedural rights.
Thus, debt collectors as a party to enforcement
proceedings were deprived of the opportunity to
receive money already collected in their favor,
which in the conditions of martial law, when
citizens became temporarily displaced persons or
were forced to leave Ukraine, could support their
standard of living. As for debtors, even if the
requirements of the enforcement document are
met, the seizure cannot be removed from the
debtor's property, which does not give the debtor
the right to dispose of the property belonging to
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him, and also does not give the right to be
excluded from the Unified register of debtors,
because the existing procedure for removing the
seizure from the debtor's property does not allow
this to be done either through the "DIIA"
application or in any other way. Due to the desire
to leave the places of active hostilities for the
period of martial law, such male debtors, if they
fall under certain categories of persons who are
allowed to leave the country, are forced to
separate from their wives and children due to the
existing imperfect mechanisms for regulating
issues execution of court decisions.
Therefore, in the modern conditions of prolonged
martial law, the gradual restoration of the work
of courts and the Unified Register of Court
Decisions, which is marked by the issuance of
enforcement documents that require
enforcement, to restore the rights of the parties to
enforcement proceedings, it is urgent to resolve
the issue of resuming the work of private
executors, because ensuring the alternative
performance granted to a potential debt collector
by law is subject to implementation.
Conclusions
As a result of the conducted study of the
peculiarities of personal protection in
enforcement proceedings under martial law, the
following conclusions were made:
1. The ultimate goal of the court's activity,
which provides for the real protection of the
rights and freedoms of the parties, is the
implementation of a legal court decision,
adopted as a result of a comprehensive,
objective, and timely review.
2. Guarantees of the rights of participants in
enforcement proceedings are inseparable
from legal guarantees of legality.
3. The changes related to the enforcement
proceedings are aimed at ensuring the
protection of national interests, the
livelihood of the population, as well as
calculations with the population and the
budget, which are fully justified. At the same
time, the application of restrictions in
enforcement proceedings, for which the
Russian Federation or persons connected
with the aggressor state are the debtors, will
be complicated or impossible at all, because
the legislator has vaguely formulated the
relevant restrictions, and they can have
many interpretations both temporally and
substantively.
4. Limiting the activities of private executors
has the effect of limiting the rights of
persons whose enforcement proceedings are
being executed by private executors and
essentially does not provide an opportunity
for alternative execution provided to a
potential debt collector by law.
Regarding further scientific research, it is
important to analyze the foreign experience of
setting restrictions on enforcement proceedings
caused by various factors: military aggression,
system failures of information support, and the
consequences of such restrictions for ensuring
the rights of individuals in enforcement
proceedings.
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