ON APRIL 9, AN ONLINE DISCUSSION OF THE PROCEDURE FOR BRINGING PRIVATE ENFORCEMENT OFFICERS TO DISCIPLINARY RESPONSIBILITY WAS HELD WITH THE SUPPORT OF THE EU PRAVO-JUSTICE PROJECT AND WITH THE PARTICIPATION OF REPRESENTATIVES OF THE REGIONAL JUSTICE REFORM COUNCILS (RJRCS). During the event, the experts of the EU Project “Pravo-Justice”, the UNBA Disciplinary Commissioner Olena Ovcharenko and a member of the Disciplinary Commission (DC) from the UNBA Oleksiy Solomko presented the report “Analysis of the practice of bringing private bailiffs to disciplinary responsibility“.
The main conclusion of the report is that the disciplinary practice in relation to private enforcement officers has a number of shortcomings.
In particular:

  • The activities of the SC are not permanent;
  • there are no guarantees of independence of the commission members and publicity of the work of the SC;
  • questions arise as to the motivation of the Commission’s decisions and the proportionality of the punishment to the disciplinary offense committed;
  • there is a conflict of interest in the work of the Commission;
  • substitution of departmental control by judicial control;
  • abuse by debtors of their right to appeal against the actions/inactions of a private enforcement officer and the lack of a proper objective “filter” when considering such complaints;
  • submissions to the DC formed as a result of an unscheduled inspection by the Ministry of Justice that go beyond the subject matter of the complaint under which such an inspection was conducted.

As a result, 75% of claims filed by private enforcers to cancel decisions of the Disciplinary Commission of Private Enforcers are upheld by the courts.
“We already have three decisions of the Supreme Court to cancel the decision of the DC to bring a private enforcement officer to disciplinary responsibility, 12-13 positive decisions of the Appellate Courts and more than 20 decisions of the courts of first instance in favor of private enforcement officers,” said Olena Ovcharenko.
Zoryan Makovetskyi, a representative of the Lviv RRMP, private enforcement officer, member of the UDPA, member of the Disciplinary Commission of Private Enforcement Officers, expressed his position on the impact of court decisions in considering complaints of the DC.
“If a court decision on a given complaint is made in favor of a private enforcement officer, then a priori the appeal should be dismissed, because the court does not see any violations. If a court decision recognizes the actions of the bailiff as somehow unlawful, this cannot serve as a basis for mandatory disciplinary action. This issue should be considered collectively by the members of the AC, taking into account the guilt, damage caused, violations of the law, etc.”, – emphasized Zoryan Makovetskyi.
Andriy Avtorgov, a member of theUkrainian BarAssociation, spoke about the main innovations regarding the disciplinary liability of private enforcement officers, which are included in the draft law No. 3726 (read more here).
In his turn, Georgiy Parfenov, member of the Odesa Regional Council of Private Enforcement Officers and Chairman of the Council of Private Enforcement Officers of Odesa Region, emphasized the importance of providing for the right of private enforcement officers whose activities have been suspended to finalize open proceedings.
“Suspension of the bailiff’s activities has negative consequences not only for the bailiff, but also for the parties to the enforcement proceedings and other persons. For example, debtors who have paid their debts cannot get the arrest lifted, and persons who have purchased property at an electronic auction cannot get an act of sale of this property. Therefore, I would propose to replace such a punishment as termination of activity in general with a ban on opening new enforcement proceedings so that the bailiff can carry out activities to lift arrests, issue acts, etc.”, said Georgiy Parfyonov.
The Chairman of the CGPA Vitaliy Chepurny spoke about the strategic vision of the CGPA’s control over the activities of private bailiffs as an indicator of the community’s ability to self-regulate.
“In my opinion, effective control should include the following things. Firstly, the approval of a perfect Code of Professional Ethics and a clear and understandable mechanism for monitoring its compliance. Secondly, a clear and understandable mechanism for monitoring the implementation of decisions of the Council of Private Enforcement Officers of Ukraine, including, for example, the implementation of decisions to appoint a temporary private enforcement officer to replace an officer whose activities have been terminated. Thirdly, a clear and understandable procedure for controlling the payment of membership fees and the timely and correct conclusion of civil liability insurance contracts,” said Vitaliy Chepurny.
Deputy Minister of Justice Andriy Haichenko, who was present at the meeting, noted that the Ministry of Justice of Ukraine does not abuse its right and does not unreasonably bring private enforcement officers to disciplinary responsibility.
According to him, private bailiffs have never been invited to a meeting of the State Commission 204. However, 5-10 private bailiffs are regular “visitors” to the DC, with 37-39% of all existing enforcement proceedings in the country being enforced. “The work of the Disciplinary Commission is a consequence, the root cause – how can these 10 bailiffs execute 37-39% of the total number of enforcement proceedings? The lion’s share of complaints are filed against these bailiffs,” said Andriy Haichenko. For reference:Regional Justice Reform Councils(RJCs) were established with the support of the EU Pravo-Justice Project and operate in Chernivtsi, Dnipro, Kharkiv, Lviv, Odesa oblasts and Donbas. To date, members of the Councils have been actively involved in the preparation of a draft law on mediation, amendments to the Bankruptcy Code, proposals to improve legislation on enforcement proceedings, the introduction of an electronic court, and discussions on the concept of transitional justice. The RECs act as permanent working groups that promote the implementation of reforms in accordance with the bottom-up principle: by bringing region-specific challenges and their potential solutions to the level of central authorities.

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