Human Rights in the execution of Judicial Decisions
The execution of judicial decisions is the stage of the legal procedure in which actual realization and restoration of the violated rights of the citizens take place.
Assurance of the timely fulfillment of executive orders is the responsibility of the Committee for Judicial Administration under the Supreme Court of the Republic of Kazakhstan (further referred to as “the Committee”).
In 2006, in an effort to improve the legislative basis for the execution of judicial decisions, the Law “On the Introduction of Amendments to Some Legislative Acts on Issues regarding Executive Procedure” was adopted. The norms of the law are aimed at the implementation of the provisions of the Concept of Legal Policy of the Republic of Kazakhstan that concern the unification of the activities of judicial executors and officers of justice in a single system, and the expansion of application of procedural judicial control of the execution of judicial decisions.
This Law also contains provisions that improve the executive procedure of judicial decisions. For instance, it contains the provision for access for judicial executors to secret tax information, which is should significantly simplify the procedure of the establishment of the material situation of a debtor.
In addition, with the purpose of quick obtainment of more complete information about debtors, amendments have been made to the laws of the Republic of Kazakhstan “On the Equity Market,” “On Credit Partnerships,” “On Microcredit Organizations” and “On Notary Institutions.”
The Code of Civil Procedure was added to with articles such as “Appeal of the Action (Inaction) of Judicial Executor,” and “Protection of the Rights of Other Individuals in the Execution of Decisions.” In addition, the Law “On the Executive Procedure and Status of Judicial Executors” was supplemented with articles that stipulate the procedure for representation and succession in executive procedures, and the procedure for the discharge of a judicial executor.
The mechanism for the partial withdrawal of money from accounts of debtors on the basis of collection orders from agencies of executive procedure was improved.
Nevertheless, the adopted Law does not contain principal provisions allowing radical changes to the mode of execution of judicial acts.
An analysis reveals that low figures of actual execution prevail in certain categories of executive documents, the execution of which is a long-term (periodical) nature or is difficult due to its basic reasons.
For instance, the collection of alimony is of long-term character – alimonies are collected periodically, as a rule, until the child attains legal age. The figures of actual execution for this category are very low, amounting to nearly 40%. This does not mean that court decisions are not being executed. Out of documents remaining in residuo in 2006, 46,276 documents on the collection of alimony are being executed on a periodical basis.
A very low figure of actual execution is observed with regard to executive documents concerning the collection of money per court sentences. As a rule, in these cases, the amount for damage caused by the crime is collected. The debtors are mainly convicts with a poor material and social situation. In addition, they are not employed in institutions of confinement, so it is impossible to withdraw the debt from their salary. The low level of execution for these categories of executive documents to a great extent reduces the figures of actual execution as a whole.
An analysis of information received shows that judicial executors allow the violation of the rights of both the individuals to whom the money is due and the debtors.
The survey held by experts from the Association of Sociologists of Kazakhstan within the framework of the project “Human Rights in Kazakhstan: the General Opinion” among 1500 respondents revealed that only 12.0% of respondents believe that the decisions of the court of the Republic of Kazakhstan are executed in full measure. 51.1% of respondents believe that judicial decisions are executed partially, and 33.3% of respondents found it difficult to respond.
46,8% of respondents think that the reason for non-execution of judicial decisions is the corruption of judicial executors, 16.6% of respondents named the low qualification of judicial executors as a reason for non-execution of judicial decisions, and 7.9% of respondents associate the non-execution of judicial decisions with the insufficient authority of judicial executors. The results obtained prove that there are serious problems related to the violation of the rights of citizens to the proper and timely execution of judicial decisions.
The low quality of execution, failure to execute judicial decisions within the established time, and corruption crimes and offences are the direct result of the low legal and social status of judicial executors, lack of qualified and experienced specialists, as well as the absence of a valid mechanism for the execution of judicial decisions.
Until now, the number of judicial executors does not meet established levels, which entails an excessive load on them and the fluctuation of personnel levels. The low salary and the absence of social security also affect the appeal of this profession.
The implementation of a mechanism for an incentive system for judicial executors would facilitate the solution of this problem, and this is proved by successful international experience.
In the governmental execution system of France, Poland, Slovakia, the Baltic countries, Germany, Azerbaijan, Armenia, Byelorussia, and Moldova, judicial executors in addition to a fixed salary receive a bonus depending on the collected sums at the expense of the debtor for each execution.
This pattern of remuneration in Germany allowed the achievement of almost one hundred percent of execution of the judicial decisions. In addition, none of the judicial executors incurred criminal liability.
Implementation of a similar mechanism in Kazakhstan will allow the improvement of the quality of judicial execution personnel, the increase of revenue to the republican budget, and the reduction of governmental expenses for the maintenance of judicial executors, and will solve the problem of corruption in executive procedure agencies.
It should be noted that the implementation of this mechanism will improve the quality of execution and will eliminate the need to assign judicial execution personnel.
Unfortunately, the mechanism for the criminal and other accountability of debtors for evasion of execution of judicial acts still remains ineffective.
It is necessary to further reform the executive procedure agencies. The efficiency of protection of the rights and freedoms of participants of executive procedure directly depends on the clear definition of the legal status of the executive procedure agencies and the control mechanism for the execution of judicial decisions.
On September 28, 2006, within the framework of the expanded meeting of the Human Rights Commission under the President of the Republic of Kazakhstan, issues regarding the improvement of the executive procedure were considered. Therefore, it was admitted that it would be advisable to transfer the executive procedure agencies to the jurisdiction of the Ministry of Justice and to incorporate them into the structure of the Committee of the Criminal and Executive System, and to name the latter the Committee for the Execution of Judicial Acts.
The baseline report on the human rights situation which was prepared in 2007 by a group of independent experts under the coordination of the Human Rights Commission suggested the supplementation of Article 236 of the Code of Civil Procedure with Paragraph 6, which would oblige the judicial executor to inform the court upon the execution of the executive order or the expiration of the period to submit a written note regarding the reasons for non-execution of the order. It was suggested to make a provision in that same article for the right of the court to demand a necessary explanation from the judicial executor with regard to reasons for failure to provide such information.
We believe that the implementation of the above-mentioned measures will allow the improvement of the efficiency of the execution of judicial decisions, will strengthen the power of the judicial authorities, and will enhance the confidence of the population in the court, since the failure to execute judicial orders, negligence, and inactivity of the executive procedure agencies seriously damage the reputation of the judicial authorities and of the government as a whole.
It is necessary to investigate the possibility to elaborate and adopt the Code of Execution of Judicial Orders, which would regulate the procedure for execution of all categories of orders.
It is worth noting that foreign experience in the field of application of indirect coercive measures to the debtor so that he would fulfill his obligations, and in the field of implementation of the concept of astrente (continuously increasing fines) will result in good discipline of the debtors. In addition, it is possible to investigate the opportunity to legislatively stipulate the obligation of the debtor to declare his assets upon request of the judicial executor and to grant the judicial executor the right to judicial recourse with regard to the invalidation of real estate transactions of the debtor made in an effort to conceal his property.
With a view to the improvement of efficiency of the executive procedure and more complete security of human rights in this regard, we recommend that the Government of the Republic of Kazakhstan jointly with governmental agencies implement the following measures during the period of 2009-2012:
- Develop and implement a mechanism for the payment of social governmental benefits to claimants, especially to single mothers, during the period of insolvency of men paying alimony and convicted individuals who have not reimbursed the damage incurred by their crime. Moreover, establish the legal claim for regressive compensation for expenses incurred by the government from the debtor;
- Transfer the inquest of crimes related to the non-execution of judicial orders from the Ministry of the Interior to executive procedure agencies.
- Based on study of advanced international experience, develop and implement a mechanism for the material incentive of judicial executors.
- Consider the possibility of including executive procedure agencies in the structure of the Committee of the Criminal and Executive System of the Ministry of Justice and to re-name the latter the Committee for the Execution of Judicial Acts.
- Supplement Article 236 of the Code of Civil Procedure with Paragraph 6, which would oblige the judicial executor to inform the court upon the execution of the executive order or the expiration of the period for submission of a written note regarding the reasons for non-execution of the order. In the same article, grant the court the right to demand the necessary explanation from the judicial executor with regard to the reasons for failure to provide such information.
- Change the procedure for execution of judicial orders by governmental agencies and institutions financed by the republican and local budgets. For this purpose, it is necessary to establish in the budgetary legislation a provision that would oblige governmental agencies, when planning their budgets for the impending financial year, to budget finances for the repayment of their debts related to judicial orders.
- Legislatively determine the liability of the higher managers of governmental agencies for non-execution of judicial orders.
- Taking into account the efficiency of the practices of foreign countries in the field of coercive execution, it is necessary to stipulate in the legislation on executive procedure of the Republic of Kazakhstan the use of indirect coercive actions to force the debtor to fulfill his obligations; these actions are absolutely different from direct coercive actions and allow the expansion of the scope of executive procedure. For this it is necessary to introduce the concept of astrente (continuously increasing fines), which will contribute to strengthening the effectiveness of justice and the protection of the rights of the individuals involved in executive procedure.
- Legislatively establish measures for the social security of judicial executors. Take necessary actions to sustain the activity of judicial executors including the provision of service vehicles.