Zhumageldy Sakenovich Yelyubayev
IssuesofEnforcementProceedings or Lawless Actions of Court Marshals
Onedaybeingatargetofenforcementproceedingsandsubjectedtounlimitedpowerofaprivateenforcementofficer to the extent lawless actions, I made up my mind to write an article to through light on the existing problems of enforcement proceedings with a purpose to protect rights and legal interests of the citizens.
Infar-off 1990’s, beingRoKViceMinisterofJustice, Iwasoneoftheactivedevelopersof first draft of the RoK Law “On Enforcement Proceedings and the Status of Enforcement Officers”, which was adopted on December 30, 1998. AtthattimewereconfidentthatthislawoftheindependentKazakhstan would ensure enforcement ofcourt judgments on the basis of general legal principles of legitimacy and equitability. Atthestartit was so, given that the work of enforcement officers was under strict control of courts and judges, then the institute of private enforcement officers was introduced with all ensuing consequences.
Thus, thestatetransferredmostofitsenforcementfunctionstoprivateenforcementofficers, who commenced enforcement of court and other decisions under the licenses granted by the state. ThereappearedtheChamberofEnforcementOfficers(Republicandregional) with their own powers, staff, rights and obligations, the code of the professional honor of enforcement officers. However, unfortunatelyillegalmethodsareobservedintheworkofenforcementofficers, inotherwordslawlessactions in enforcement proceedings, which is evidenced by numerous applications and claims filed with courts which challenge actions or failure of private enforcement officers. Asstatedabove, Iwasalsoaninvoluntaryparticipantofsuchprocess, therefore based on my personal experience of participation in the proceedings to challenge the actions of the private enforcement officer, I would like to through light on some concerns existing in this sphere of legal relations.
Iwillstartnotingthatoneofthegroundstoinitiateenforcementproceedingsisacourtorder, whichisissuedsolelybyajudgewithinthreedaysonindisputableclaims, e.g. under a tax notification of collection of tax arrears and outstanding obligatory payments to the budget (Article 139 and Clause 5 of Article 135 of the RoK Code of Civil Procedure).A court order is issued in the absence of a debtor (defendant). Theclaimantinsuchcaseisthe representative of tax authorities, who, as a rule, is also absent. Thus, thejudgeconsiderstheprovided materials and delivers a court order on collection of tax arrears from the debtor. Inthiscase, aquestionis, howdoesthejudgedeterminesintheabsenceoftheparties, specificallyadebtor, “indisputabilityoftheclaim”, given that the establishment of this very circumstance allows him to pass solely and in a short time a court order which is a ground for initiation of enforcement proceedings?Thereisoneanswer– noway, becauseintheabsenceofthepartiesthejudgecannotverifykeycircumstancessupportingtheeffectofgenerallegalprinciplesoflegitimacyandequitability: inparticular, thedebtor’sawarenessoftaxarrears, receiptof mandatory tax notification duly informing the debtor of the existing outstanding payments, the debtor’s evasionof debt recovery etc. Henceanotherquestionarisesregardingjustifiability, legitimacyandequitability of the court order delivered by the judge in the absence of the parties without finding out such critical circumstance whether the application of the claimant is an “indisputable claim”?Inthiscaseservice of a court order to the debtor does not exclude the violation of due-process rights of the parties to such legal relations and does not make such court order valid. Moreover, thecourtmightnotbereceivedbythedebtorfordifferentreasons, depriving him of the right to protect his/her rights and legal interests, as it happened in my case. Thus, forexample, Ireceivedneithertaxnotificationsandcommunications, nor court orders; I learned of outstanding payments only when I was detained at the state border and was not allowed to cross it and go outside the Republic of Kazakhstan.
HereIthinkitisworthtotellthestoryofappearanceofindividualincometax(IIT) arrears, otherwise a reader might accuse me of assumptions and conclusions not susceptible of proof. So, in 2013Ihadanopportunitytogetone-offgaininforeigncurrency. AfterwardsbeingabonafidecitizenofmycountryIfiledaduly declarationofone-offincomewith the tax authority at the place of my residence and paid a 10% IIT of the amount of income received. The IIT amount was significant totaling to more than 1.5 million tenge. Thus, IvoluntarilycompliedwiththelegislativerequirementtopayIIT, though no one knew and practically had no chance to know of this income. Onlyin2017, i.e. fouryearslateritwasfoundoutthatIhadunderpaid79,991 tenge of IIT, as the result of wrong exchange rate applied according to the tax authority. ThiscomparablyinsignificantamountofunderpaymentgiventheamountoftaxpaidthatIwasnotawareofwasthencause of and ground for applying to me tough enforcement actions stipulated by the legislation: seizure of my movable and immovable property, freeze of my bank accounts and deposits and temporary prohibition to exit the country. Allthesemeasureswereundertakenbyaprivateenforcementofficeringross violation of the requirement of the applicable legislation.Unfortunately, thejudgeswhogavesanctionstotakesuchactionsdidnotpayattentiontotheillegitimacyandunjustifiability of the actions of the private enforcement officer, however, the court order was cancelled under my application. Further, inordertosubstantiatemystatements, Iwouldliketoenlargeonthemandatory requirements on the legislation violated in the course of enforcement actions.
First, upondiscoveryofunderpayment, thetaxauthoritieshadtodulyinformmeoftheexistenceofthetaxarrearsandsendanotificationofunderpaymentrecovery. Probablytheymadesuchattempts, butneithermenormembersofmyfamilyreceivedanyofsuchdocuments, atleastno evidence of duly notification of me was submitted. HavingpaidIITintheamountmorethan 1.5 milliondollarsIhadan opportunity to make an additional payment of the insignificant outstanding amount or to challenge the tax notification.
Secondly, uponreceiptofthecourtorderandinitiationofenforcementproceedings, theprivateenforcementofficer did not notify me of the tax arrears and my obligation to pay them. Theprivateenforcementofficerdidnotprovidereliableevidencethathehandedinasubpoena, a notification, communication and other documents.On the contrary it was confirmed in the court that post agents could not deliver to me these documents. Nevertheless, havingfailedtocomplywiththislegislativerequirementofmandatorynotificationofadebtor, theprivateenforcementofficer applied to me all statutory sanctions which are applied to a person intentionally evading performance of his/her debt recovery obligation.
Whatwasillegalintheactionsoftheprivateenforcementofficer?
The actions of the private enforcement officer did not meet such key principles of enforcement proceedings as: legitimacy, respectofhonoranddignityofahumanbeing, correlationofamounttheplaintiff’sclaimsandcompulsoryenforcementmeasures (Sub-clauses1, 3 and 5 ofArticle3 of the RoK Law “On Enforcement Proceedings and the Status of Enforcement Officers”). Also, Article 27 ofaboveLawobligestheenforcementofficertodulynotifythepartiestotheenforcement proceedings, including the debtor, by any means of communication (post, electronic mail, telephone, fax etc.), ensuring mandatory record of a notice or subpoena.
PursuanttotheprovisionsofArticle 28 of the RoK Law “On Enforcement Proceedings and the Status of Enforcement Officers” (hereinafter the Law) a subpoena should be handed out to the addressee or the members of his/her family against signed receipt. Ifapersondeliveringasubpoena, acommunication, anotificationandotherproceduraldocumentsfailstomeetanindividualattheplaceofhis/herresidence or work, these documents should be delivered to the housing management organization, a local government body at the place of residence of the addresseeor to the administration at the place of his/her work. Meanwhile, the private enforcement officerdidnotdulymeetthesemandatory requirements of the law, confining to the statements of the mail delivery agents that delivery of subpoenas/notifications –‘did not take place”. Theprivateenforcementofficeundertooknootheractionstodulynotifymeofenforcementproceedings, thoughIhavebeenlivinginAlmatyfor 30 years, and20 years ago I was registered at one and the same place of residence, where I live with my family, and have a permanent job in Almaty; I am actively involved in public and scientific work, therefore the required information, specifically about the place of work, could have been found in the internet resources.
Itshouldbenotedthatthepartiestotheenforcementproceedingsaredeemedtobedulynotified, ifan enforcement officer has sufficient information and documents as stipulated in Clause 2 of Article 30 of the Law. However, theprivateenforcementofficerhadnodocumenteddataconfirmingawareness of the debtor, except for notifications of the postal services that the subpoena had not been handed in the addressee.
Meanwhile, pursuanttostatutoryrequirementsthe parties to enforcement proceedings are deemed to be duly notified, if:
- An addressee refused to accept a subpoena, a notification, a communication and/or litigation documents of the enforcement officer:
- Despitereceivingofpostnotification, theaddresseedidnot appear for a subpoena, notification, communication and/or litigation documents of the enforcement officer;
- Asubpoena, anotification, acommunicationand/orlitigationdocumentsof the enforcement officer were handed to any adult relatives, who live with him/her or the latter refused to accept them;
- Arefusaltoacceptasubpoena, anotification, acommunicationand/orlitigationdocumentsoftheenforcementofficer, as well as a refusal to sign a receipt of the documents are fixed by audio and/or video recording and execution of a waiver
Hereanexhaustivelistofgroundsisprovided to allow concluding that a debtor has been duly notified and subjected to statutory enforcement measures.
Duetothefailureoftheprivateenforcementofficertodulynotifyme, myrightsoftheparticipantintheenforcementproceedingsasstipulatedbyClause 1 ofArticle 16 oftheLawwereviolatedbecausetheenforcementoftheserightsisoneoftheobligationoftheenforcementofficer (Sub-clauses 2 and 3 of Clause 2 of Article 126 of the Law).
TheprivateenforcementofficerdidnotperformhisobligationsstipulatedinClause1 ofArticle148 oftheLawtoperformenforcementactionsinaccordancewiththerequirementsofthelegislationoftheRepublicofKazakhstanregulating the activity of the enforcement officer,bona fide performance of professional duties; observance of the Code of Professional Honor of Enforcement Officers (Sub-clauses 2, 3 and 5).
Theprivateenforcementofficerwhenperformingenforcementshouldhavethoughtofenforcementofgenerallegalprinciplesoflegitimacy, equitabilityandobjectivity, forthispurposehecouldhaveusedthelegalinstitutesofcirculation, of suspension of enforcement proceedings, seizure of property, stipulated by the Law (Article 62).Unfortunately, thejudgewhosanctionedtheactionsoftheprivateenforcementofficertoseizeproperty, freeze bank deposits and accounts, and to temporarily prohibit the exit from the country,formally “sanctioned” them without checking compliance of the actions of the private enforcement officer with the requirements of the law.
Theprivateenforcementofficercommittedforgeryofinformationinhis service document, when he issued a prohibit on my exit from the Republic of Kazakhstan. Specifically, inhiscourt-sanctionedresolutionheallegesthatIignored“subpoenas, notifications, and communications”sent by registered mail and did not turned up, and that “according to the governmental database” I “do not work officially anywhere”.
Atthecourthearingofthecaseinitiatedundermyclaimtotheprivateenforcementofficerseekingcompensationformaterialandmoraldamages,he declared that pursuant to Clause 2of Article 27 of the Law, the enforcement officer has the right to enforce the litigation document immediately.Itistruethataccordingtotheaboveprovision, incaseswherealitigationdocumentissubjecttoimmediateenforcement, aswellasincaseofseizure of property and other enforcement measures, the enforcement officer may perform enforcement actions and use enforcement measureswithout preliminary notification of the parties to the enforcement proceedings. However, inmycaseit is difficult to accept theaboveargumentof the private enforcement as grounded due to the following circumstances.
First, enforcementproceedingsinitiatedwithrespecttome, doesnotrelatetosociallysignificantcategoriesaccording to the list of specified in Article 243 of the RoK CCP (e.g., award of alimony and salary, reinstitution etc.), when the litigation document is subject to immediate enforcement. Thecourtorderalsowasnotsubjecttoimmediate enforcementunder the rules of Article 244 of the RoK CCP.
Secondly, pursuanttoClause3 ofArticle622 oftheRoKTaxCode, collectionoftaxarrearson account of the taxpayer's property is carried out by the enforcement authority in the procedure established by the enforcement proceedings legislation. Thus, underthetaxlegislationthislitigationdocumentwithrespecttomealsodoesnotrelatetothedocumentssubject to immediate enforcement without notification of a debtor.
Thirdly, imposition of seizure of property andenforcementmeasuresbytheenforcementofficerwas made in gross violation of the mandatory rules of the applicable legislation, therefore this ground did not give the private enforcement officer the right to immediately enforce the court order.
Thus,thecourt-sanctionedactionsoftheprivateenforcementofficerviolatedmyconstitutionalrights: topersonalliberty, liberty of movement, egress from the Republic of Kazakhstan, disposal of ownership (Articles 16, 21 and 26 of the RoK Constitution). Meanwhile, pursuanttoClause 2 ofArticle39 oftheRoKConstitution, rightsandfreedomsofanindividualandcitizenmaybe limited only by laws and only to the extent necessary for protection of the constitutional system, defense of the public order, human rights and freedoms, health and morality of the population. Itshouldbenotedthatthepurposepursuedbytheprivateenforcementofficer (collectionto the state revenue of the outstanding amount of 79,991 tenge, of which I was not aware), did not give him the right to limit my rights and freedoms guaranteed by the country’s Constitution.
Inconclusion, IwouldliketonotethatIcouldprotectmyviolatedrightsandfreedoms by filing with the court a claim seeking compensation for material and moral damages caused to me by the actions of the private enforcement officer. Unfortunately, thecourtuponcollectionfromtheprivateenforcementofficermaterial damages, refused to satisfy moral damage identified by me in the amount of 50% of material damages.ThecourtoffirstinstancemotivateditsdecisionthatpursuanttoClause2 ofArticle951 oftheRoKCC, moraldamagesarecompensatedsubjectto the guilt of the causer, and given that I did not provide to the court“admissible and applicable” evidence confirming “causing physical and psychological suffering” to me, my claims to this extent are not grounded.
Meanwhile, isn’t satisfactionoftheclaimandcollectionfromtheprivateenforcementofficertheamountofmaterialdamages caused by his illegal actions the evidence of guilt under Clause 2 of Article 951 of the RoK CC. Byhisillegalandnegligentactions,theprivateenforcementofficer significantly violated my constitutional rights and freedoms, specifically, I was illegally deprived of the right of egress from the Republic of Kazakhstan. Astheresultofit, Iand my wife were not abletoexitthecountrywithmywifeas planned by the selected airline. Detentionofmeatthestatebordercaused physical and psychological suffering to me, annoyance, depression, anger, shame, despair anddiscomfort.
Iama, lawyer, DoctorofLaw, Professor, holdsignificantpublicpositions,inparticularIamamemberoftheInternationalCounciloftheRoKSupremeCourt, PresidentoftheKazakhstanPetroleumLawyersAssociation, Deputy Chairman of the Management Board of KazakhstanBarAssociation,I am well known among the legal community of the country, earlier I held high positions in the Civil Services. Onthegivenday, inthezoneofdeparturesoftheAstanaInternationalAirporttherewerepeoplewhomIknewwelland who worked in the central state bodies, lawyers of major law companies who knew me well, the representatives of foreign companies, who were surprised by what happened and expressed their support to me and compassion. Thereactionofthesepeoplealsocausedmeafeelingofshameanddiscomfort, I fell ill at ease that I was referred to bad faith persons who violate the laws of the country.
Myexampleisoneofnumeroussimilarcaseswhenenforcementofficersnegligently, intentionallyorduetothelowprofessionalandeducationallevel grossly violate mandatory requirements of the enforcement proceedings legislation. Theexistenceofthelitigationdocumentsdoesnotgiveenforcementofficerstherighttoignorethe procedure for their enforcement, because the entire process of enforcement proceedings is stipulated in the applicable legislation and is to be observed without infringement upon the rights and legal interests of the individuals. Ihopeverymuchthatthisworkofminewouldbeamodestcontributionin the ensuring of law and order in this important sphere of public relations, such as enforcement proceedings.