One of the basic conditions for the protection of the rights and freedoms of citizens is the adoption of fair court decisions. However, the fairness of the decision does not mean the restoration of the rights and freedoms of citizens. Thus, as well as decision-making, it is important to implement it on the basis of the principles of the rule of law, equality, objectivity, fairness, and only then the rights of the citizen are considered fully restored.
I. Enforcement of Judgments: Procedure for Initiation of Enforcement and Execution of Enforcement Actions
Enforcement of decisions of courts and other bodies is regulated by the Law of the Republic of Azerbaijan “On Enforcement”. According to the law, the requirements of the executive officer in connection with the execution of decisions of courts and other bodies are mandatory for all bodies, legal entities, their officials and individuals in the territory of the Republic of Azerbaijan and persons who do not comply with these requirements and obstruct the performance of their duties shall be liable in accordance with the legislation of the Republic of Azerbaijan.
If the decision contains requirements for the withholding of funds, enforcement is carried out by tax authorities, banks and other credit institutions. In some cases, these requirements may be enforced by other bodies, officials, as well as legal entities and individuals. In this case, they are not considered mandatory executive bodies. If there is a requirement for withholding of funds in the decision, the executive officer or other credit institution who has information about the debtor’s accounts in the bank and the availability of funds in those accounts, must send a copy of the executive document to the bank or other credit institution. That bank or other credit institution must comply with the request to withdraw funds within 7 days from the date of receipt of this writ of execution. If the debtor’s accounts do not have sufficient funds to satisfy the claims, a note shall be made in the executive document stating that the claims have not been fulfilled in whole or in part. A bank or other credit organization that does not comply with these requirements shall be held administratively liable by the relevant court in accordance with the protocol on administrative violation of the executive officer.
A. Initiation of enforcement proceedings
After the execution documents are sent for execution, the implementation of enforcement actions begins. These executive documents include: decisions of the courts of the Republic of Azerbaijan; court rulings on taking measures to secure the claim; part of judgments, rulings and decisions of courts on criminal cases on confiscation of property; decisions of international arbitrations and arbitral tribunals; writs of execution, issued on the basis of decisions of courts and arbitrations of foreign states, court orders; notarized alimony agreements; notary’s executive records; decisions of the bodies authorized to consider cases on administrative offenses; decisions of other bodies in cases stipulated by the legislation; protests against non-payment of the promissory note in case of its acceptance, if the bill of exchange mentions its acceptance; administrative acts adopted by municipalities and administrative acts related to payment of monetary claims of other administrative bodies; short-term protection orders issued by the authorities authorized to consider cases related to domestic violence.
It is the responsibility of the court or other body that issued the relevant decision to direct these executive documents. If the executive document meets the requirements of the legislation, the executive officer must receive the document from the court or other body and decide to start the proceedings within 3 days. A maximum of 10 days shall be set for the voluntary execution of the requirements specified in the decision by the debtor from the date of commencement of the proceedings and the debtor shall be notified. However, the court’s decision may specify another period of execution. The notice shall state that after the expiration of this period, the requirements shall be compulsorily complied with and the expenses related to the implementation of the enforcement payment and enforcement actions shall be deducted from it.
A copy of the decision to initiate enforcement shall be sent to the claimant, the debtor, as well as to the court or other body that issued the executive document within 1 day from the date of its adoption. In order to ensure the execution of the executive document on property claims, the executive officer shall register the debtor’s property and make a relevant note in the decision to initiate proceedings. The parties may appeal the decision to initiate proceedings to the court within 10 days after receiving a copy.
B. Consequences of violation of the requirements of the executive document
In order to direct the execution document for execution, it is required to comply with the requirements provided by the legislation. If the document does not meet these requirements, it shall be returned to the court or other body that issued the writ of execution no later than 3 days from the date of its receipt, and a relevant decision shall be made. The claimant shall be notified within 1 day from the date of the decision. The decision shall specify the grounds for its return, and the executive officer shall inform the court or other body that issued the executive document of the violations. Violations must be remedied within 3 days and the executive document must be re-sent to the executive officer.
C. Place of execution
If the debtor is an individual, enforcement actions shall be carried out at his place of residence or at his place of work or at the place where his property is located. If the debtor is a legal entity, enforcement actions are carried out at the place where he is or where his property is. Requirements for the obligation of the debtor to perform certain actions shall be executed in the manner and place specified in the executive documents. If during the enforcement the debtor’s place of residence or location or place of work is changed or it is found that the debtor does not have property to which the claim can be directed or the property is not sufficient to satisfy the plaintiff’s claims, an act shall be drawn up. Within 1 day from the date of drawing up the act, the executive officer shall send the executive document together with a copy of the act to the executive officer at the debtor’s new place of residence or location or at the new place of work or at the debtor’s new place of residence and informs the court or other body in writing. The executive document sent by the executive officer must be accepted for execution by another executive officer in the relevant territory. Disputes between executive officers regarding the place of enforcement actions shall be resolved by the head of the enforcement service.
II. Grounds and Procedure for Termination of Proceedings
The process ends with the termination of the proceedings. Proceedings on the writ of execution shall be terminated in the following cases:
- if the court accepts the plaintiff’s waiver of the claim;
- if the court approves the settlement agreement between the plaintiff and the debtor;
- in the event of the claimant’s or debtor’s death, declaration of death or missing, if the claims or obligations established by a court or other body cannot be transferred to the heir or the person managing his property in accordance with the law;
- the annulment of the decision of a court or other body that was the basis for the issuance of an enforcement order or a document that is considered an executive document by law;
- when the debtor’s debt to the state is written off in accordance with the law;
- when the execution document is fully executed.
A substantiated decision shall be made by the executive officer on termination of proceedings on the writ of execution. This decision is checked and approved by the head of the executive body and a copy is sent to the parties within 3 days, as well as to the court or other body that issued the executive document. No enforcement action shall be allowed after the decision to terminate the proceedings has been taken. If, after receipt of the decision, it is determined that it was made in violation of the requirements of the Law, the court shall annul the decision within 10 days. The parties and other body that issued the writ of execution may also appeal the decision to the relevant court within 10 days from the date of its submission. When the decision of the executive officer to terminate the proceedings is annulled by the court, the enforcement measures shall be continued. In this case, the period of execution of the executive document shall be calculated from the time of the decision to initiate proceedings. If the decision is not revoked, no appeal is filed against it or the appeal is not satisfied, the executive document shall be returned to the court or other body that issued it within 3 days after the court decision enters into force. After the executive document is returned to the court or other body that issued the executive document, the executive officer shall annul all enforcement measures assigned by him.
As an ACON team, we are pleased to provide you with legal advice, as well as pre-trial and out-of-court settlement of legal disputes!