ADVANCE PAYMENT IS CANCELLED
On May 15, 2019 the Constitutional Court of Ukraine has declared the provosion of the Law of Ukraine On Enforcement Proceedings, which determine the amount of the advance payment unconstitutional. Recoverers had to pay such payment when enforcing court decisions.
Part 2 of Article 26 of the Law of Ukraine On Enforcement Proceedings (hereinafter referred to as the "Law") stipulates that the recoverer shall attach a receipt of the advance payment to the application for enforcement of a decision.
The Constitutional Court of Ukraine came to the conclusion that compulsory advancement of enforcement of court decision deprives a person of his/her constitutional right to judicial protection and contradicts the provisions of the Constitution.
In particular, the decision of the Constitutional Court of Ukraine states that the mandatory performance of a court decision shall be a necessary condition for exercising of the constitutional right of every person to judicial protection. The state can not avoid fulfilling its positive duty to ensure execution of a court decision for the actual protection and restoration of rights and freedoms protected by the court, the legal interests of individuals and legal entities, society and the state. The positive duty of the state as to enforcement of the court decision provides for the establishment of appropriate national organizational and legal mechanisms for exercising of right to perform a court decision capable to guarantee the exercising of this right and the binding nature of judicial decisions, which have become legally binding, which is impossible without their full and timely fulfillment. Lack of the financial ability on a part of the recoverer as a beneficiary of a court decision to pay an advance payment shall not prevent the exercising of his/her right to perform a court decision, especially when the debtor is the state body.
The provisions of part 2 of Article 26 of the Law shall become invalid as of the date of adoption by the Constitutional Court of Ukraine of a Decision, which is binding, final and the one which can not be appealed.
It should be noted that the Department of the State Bailiff Service of the Ministry of Justice has very quickly responded to the decision of the Constitutional Court of Ukraine. Letter No. 709/ 20.4.2/32-19 of May 17, 2019 provides explanations to public and private bailiffs as to cancellation of the advancement of enforcement proceedings. According to the explanations of the Department of the State Bailiff Service the recoverers shall not be obliged to pay an advance payment when submitting the executive document.
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