Spory concerning the appeal of actions (inaction) of bailiffs within enforcement proceedings

Disputes also arise regarding the following issues:

• enforcement of court decisions on foreclosure of property with determination of the initial sale price;
• inclusion in and exclusion from the debtor register.

According to paragraph 3 of Article 21 of the Law of the Republic of Kazakhstan “On Mortgage”, when making decisions on foreclosure of immovable property pledged under a mortgage agreement, the court must determine and indicate in its decision the initial sale price of the pledged immovable property upon its sale.

In accordance with paragraph 12 of the Normative Resolution of the Supreme Court “On the application by courts of certain norms of legislation on enforcement proceedings”, if there is a court decision that has entered into legal force on foreclosure of pledged property in which the court has determined its initial sale value, a re-assessment within the framework of the execution of such court decision is not required. Such claims, pursuant to subparagraph 12) of part 2 of Article 138 of the Administrative Procedural and Process-Related Code (APPC), are subject to return, as within the APPC debtors challenge the actions of a private bailiff regarding the sale of property at the price determined by the court.

During the execution of court decisions on foreclosure of pledged property with the establishment of an initial sale price, disputes arise regarding the necessity of conducting an appraisal.

Parties to enforcement proceedings usually argue that a significant amount of time has passed since the court decision was issued, the court-determined value is no longer relevant, and the sale of the property at a lower price would violate the rights of the parties to enforcement proceedings.

However, under Article 21 of the Civil Procedure Code of the Republic of Kazakhstan, court acts that have entered into legal force are binding on all and are subject to enforcement throughout the territory of the Republic of Kazakhstan.

Pursuant to Part 4 of Article 241 of the Civil Procedure Code, the operative part of the court decision must be reproduced verbatim in the enforcement document.

Thus, the court decision must be enforced strictly in accordance with its text.

Therefore, there are no grounds or necessity for a re-evaluation.

At the same time, taking into account the rapid changes in market value of property, some civil courts, when issuing decisions on foreclosure of property, do not indicate a specific price but instead state that the property shall be sold at market value determined by the bailiff at the time of forced sale. This approach is considered to be more consistent with the interests of the parties.

To implement this proposal, amendments to the Normative Resolution of the Supreme Court “On the application by courts of certain norms of legislation on enforcement proceedings” are required.

Administrative claims by debtors in enforcement proceedings are also filed regarding inclusion in and exclusion from the debtor register.

In accordance with Article 36 of the Law on Enforcement Proceedings, the authorized body maintains the Unified Debtors Register for the purposes necessary to carry out compulsory enforcement of enforcement documents. Information about debtors is published on the official internet resource of the authorized body. The Unified Debtors Register is formed and maintained through an automated information system on enforcement proceedings.

The authorized body responsible for the formation and maintenance of the register is the Ministry of Justice of the Republic of Kazakhstan.

At the same time, the Unified Debtors Register is formed and maintained through an automated information system on enforcement proceedings.

Information for inclusion in the Unified Debtors Register, except for information on debtors who have no arrears in enforcement proceedings involving periodic recoveries exceeding three months, as well as enforcement documents on the adoption and cancellation of interim measures, is submitted by bailiffs within three working days after initiation of enforcement proceedings.

Paragraph 2 of Article 36 of the Law on Enforcement Proceedings provides that the information includes:

• surname, name, patronymic (if any) of the debtor or the name of the debtor organization;
• the authority issuing the enforcement document, the date of issuance, and the content of the unpaid obligation of the debtor;
• surname, name, patronymic (if any) of the bailiff submitting the information, and the name and address of the territorial department or the office address of a private bailiff.

Exclusion of a debtor from the Unified Debtors Register is carried out:

1. after termination of enforcement proceedings;
2. in the absence of debt in enforcement proceedings involving periodic recoveries;
3. after completion of enforcement proceedings on the grounds provided for in Article 48 of the Law on Enforcement Proceedings, upon fulfillment of the requirements of the enforcement document.

For example, in the proceedings of a private bailiff there was an enforcement case concerning the determination of visitation time between the claimant and her son living with the mother (debtor). Upon initiation of enforcement proceedings, the private bailiff entered the claimant’s data into the Unified Debtors Register. The debtor challenged the bailiff’s actions regarding inclusion in the register. The court dismissed the claim. The bailiff had no grounds for exclusion from the register, as enforcement had not been carried out and the enforcement document had been returned. Arguments regarding the need to restrict public access to information about her personal and family life were not accepted by the courts. Analysis of the Unified Debtors Register shows that it does not contain any information about the content of the court decision or the unfulfilled obligation of the claimant, nor data concerning the minor child (case No. 6001-22-00-6ap/76).

In accordance with paragraph 3 of Article 76 of the Constitution of the Republic of Kazakhstan, court acts that have entered into legal force are binding on all state bodies, local self-government bodies, legal entities, officials, and citizens, and are subject to execution throughout the territory of the Republic of Kazakhstan.

The purpose of enforcement proceedings is to ensure the real restoration of violated or disputed rights or legally protected interests.

Appealing the actions (inaction) of a bailiff is a form of judicial control in enforcement proceedings aimed at protecting the rights and interests of the parties to enforcement proceedings.

The main regulatory legal acts governing enforcement proceedings are:

• Constitution of the Republic of Kazakhstan;
• Administrative Procedural and Process-Related Code;
• Civil Code;
• Civil Procedure Code;
• Law “On Enforcement Proceedings and the Status of Bailiffs”;
• Law of the Republic of Kazakhstan “On Appraisal Activity in the Republic of Kazakhstan”;
• Normative Resolution of the Supreme Court dated 31 March 2017 No. 1 “On the application by courts of certain norms of legislation on enforcement proceedings”;
• Normative Resolution of the Supreme Court dated 19 December 2003 No. 12 “On liability for non-execution of court acts”;
• Rules approved by Order of the Minister of Justice dated 20 February 2015 No. 100;
• Resolution of the Government of the Republic of Kazakhstan dated 4 May 2014 No. 437 “On approval of the remuneration rates for private bailiffs”.

Abbreviations used:

APPC – Administrative Procedural and Process-Related Code of the Republic of Kazakhstan;

CPC – Civil Procedure Code of the Republic of Kazakhstan;

CC – Civil Code of the Republic of Kazakhstan;

Law on Enforcement Proceedings – Law “On Enforcement Proceedings and the Status of Bailiffs”;

NRS – Normative Resolution of the Supreme Court of the Republic of Kazakhstan;

Rules – Rules on the sale of seized property, including via electronic auction;

AIS – Automated Information and Analytical System “Törelik” of the judicial authorities of the Republic of Kazakhstan;

SCAD – Supreme Court Judicial Collegium for Administrative Cases;

Collegium – Judicial Collegium for Administrative Cases;

SMAS – Specialized Interdistrict Administrative Court;

MOJ – Ministry of Justice;

GSP – State Bailiff;

PBI – Private Bailiff.

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