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Файл:Ограничение прав должника. Новеллы законодательства и практика применения =The restriction of the rights of the debtor. The latest legislative changes
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А. Parfenchikova. Debtor personal rights in terms of international legal standards
Firstly, p. 2 of art. 29 of the Universal Declaration of Human Rights1
declares that enjoyment of human rights and freedoms can be limited “in
order to ensure proper recognition and respect of rights and freedoms of
others and to satisfy fair requirements of morality, public order and general
welfare in a democratic society”.
Secondly, the European Convention on Protection of Human Rights and
Fundamental Freedoms2 contains provisions in its p. 2 art. 10 and p. 2 art. 11
according to which enjoyment of a number of freedoms “imposing obligation
and responsibility can involve certain formalities, conditions, limitations or
sanctions that are prescribed by the law and necessary in a democratic society
to ensure national security, territorial integrity and public order, to prevent
disturbances and crimes, to protect health and morals, reputation or rights
of other people, to prevent disclosure of confidential information as well as
to guarantee authority and impartiality of justice”.
Thirdly, International Covenant on Civil and Political Rights3 in p. 3
art. 12, p. 3 art. 19 also concedes limitation of rights, the right to travel freely,
in particular, and the freedom to choose the place of abode if “it is covered by
the law and necessary to ensure state security, public order, health or morals
of the population and their rights or freedoms”.
Protocols of the European Convention on Protection of Human Rights
and Fundamental Freedoms.Protocol N 4 of the European Convention4
in art. 2 declares the right to travel freely and the freedom to choose the
place of abode as well as guarantees the right of each individual to leave
freely any country including his/her own. Nevertheless, part 3 of the given
article states that “enjoyment of these rights shall not be subject to any
restrictions but those prescribed by the law and necessary in a democratic
society to ensure national security or public peace, to maintain public order,
to prevent crimes, to protect health or morals or to safeguard rights and
freedoms of other people”.
Practice of the European Court of Human Rights. The issue of admissibility
of limiting the debtor right to leave the country which, as it has been stated
above, is widely used in Russian enforcement proceedings was reflected in
a decision of the European Court of Human Rights in the case “Peltonen
versus the Republic of Finland” of February, 20 1995 N 19583/92.
1
Adopted by the UN General Assembly on 10 December 1948.
2
Concluded in Rome on 04 November 1950.
3
Adopted by Resolution 2200A (XXI) at the General Assembly on 16 December 1966.
4
Protocol N 4 to the Convention for Protection of Human Rights and Fundamental Freedoms “On ensuring certain rights and freedoms in addition to those that were already included
into the Convention and Protocol N 1 to it” (Strasbourg, 16 September 1963).
351
III. National doctrine of enforcement proceedings
The core of the matter is the following. The brothers Lawry and Vesa
Peltonen, citizens of Finland and residents of Sweden, were refused when
they sought new passports as they had not completed obligatory military
service in Finland. Since the brothers lived outside Finland and their
wrongdoing was not fraught with extradition from the country of abode
Finnish authorities decided that to withhold the grant of new passports on
the basis of current legislation was the only way they could have forced them
to fulfill the demands of law.
The Peltonen brothers considered the given refusal to be derogation of
their civil rights, so, one of them filed a complaint with the Committee of
Human Rights of the United Nations Organization and the other with the
European Commission of Human rights of the Council of Europe.
The Committee of Human Rights ruled that temporary denial of issuing a
passport to the person who had not completed obligatory military service was
lawful stating that “the right to leave the country can be subject to limitations
which ‘are prescribed by law and necessary to protect national security, public
order, public health or public morals, or rights and freedoms and correspond
to the rights recognized by International Covenant on Civil and Political
Rights’”. Thus, there are circumstances when the state is entitled to deny the
citizen the grant of a passport”1. Hence, the Committee of Human Rights
concluded that the decision on withholding the grant of a passport was not
discriminatory and did not violate any political or civil rights covered by
International Covenant. The Committee believed that the given decision
was taken on lawful grounds to safeguard public order. Due to these reasons
the Lawry Peltonen’s complaint was rejected2.
In its turn, upon examining the given case the European Commission of
Human Rights stated that” taking into account the circumstances of the case
the refusal to issue the applicant a passport valid for ten years can be quite
reasonably considered as necessary to achieve the above goals in a democratic
society (maintenance of public order and protection of national security)”.
Also, the European Commission of Human Rights ruled that “even if it can be
assumed that the applicant could demand as a citizen of Finland adherence to
his personal ‘right’ to have a passport of the country the Commission cannot
recognize such a right as ‘a civil right’”3.
1
Resolution of the Committee of Human Rights of the United Nations Organization from
26 July 1994 N 492/1992.
2
Ref. Ibid.
3
Resolution of the European Commission of Human Rights dtd. 20 February 1995.
N 19583/92.
352
А. Parfenchikova. Debtor personal rights in terms of international legal standards
Then, the European Court of Human Rights concluded that the state’s
application of restricting the debtor’s special right, i.e., denial to issue a
passport due to the citizen’s waiving obligatory military service corresponds
to provisions of the European Convention for Protection of Human Rights
and Fundamental Freedoms as it is intended to maintain public order and
protect national security. Therefore, restriction of the debtor’s right to leave
the Russian Federation which is widely applied in Russian enforcement
proceedings should be defined as corresponding to all international legal
standards of human rights.
“Soft law”. The so called “soft law” is meant to breach gaps in regulatory
activities. Although it is not legally binding and serves as guidelines it is
commonly a stage of developing traditional legal norms in this or that field
and creates general benchmarks for developing law that a national lawmaker
can use in legislation activities. “Soft law” norms are developed in the process
of unification or harmonization of relevant legal branches and institutions
as a result of which model laws, by-laws and general principles are created.
At present there is only one sample of harmonizing law in the sphere of
enforcement proceedings – the Global Code of Enforcement1 developed
under the auspices of the International Association of Officers of Justice and
introduced in Madrid in May 2015.
The Global Code admits the possibility of indirect influence on the debtor.
Yet, art. 32 of the Code states that if the states restrict the debtor personal
rights they are obliged to guarantee that these restrictions correspond to
international conventions, charters and declarations. Moreover, the Code
determines fundamental principles of applying enforcement measures in
regard to the debtor, personal limitations included, as the balance of enforcement measures and the plaintiff’s claims as well as matching of the limitations
applied with particular circumstances of each enforcement proceeding, the
creditor interests and the main debtor rights (art. 27–29 of the Global Code
of Enforcement).
Final provisions.The above-given norms of international law enable us
to speak of admissibility of restrictions of personal rights in enforcement
proceedings since, firstly, imposition of such measures in respect of the
debtor is not arbitrary, the manner and terms of their appliance are set forth in
Federal legislation; secondly, personal limitations are aimed at restoring the
creditor violated rights, and protection of other people’s rights is recognized
by international law as a reasonable ground for restricting certain individual
1
Global Code of Enforcement, UIHJ. Madrid, 2015.
353
III. National doctrine of enforcement proceedings
rights; thirdly, efficiency of the enforcement proceeding system which,
to a great extent, is achieved thanks to application of indirect enforcement
measures is to maintain law and order in the state and to ensure favorable legal
environment. Thus, the goals of a national lawmaker providing legislative
framework for a possibility to restrict the debtor personal rights and reasons
for applying such limitations are fully consistent with those that are declared
in international legal acts.
V.N. BARSUKOVA,
PhD, Assistant Professor of the Department
of Civil Procedure of the Saratov State Academy of Law
Limitations of the debtor rights
in enforcement proceedings:
legal and moral dimensions
he system of enforcement is a most important link of state apparatus
T
fulfilling state protective function which is seen as state governmental
activity determined by its essence manifesting its value and social purpose
and carried out in order to neutralize threats to public security1. The most
important components (subfunction) of the function under review is security
and protection of individual rights and freedoms. The legal forms of executing
the given subfunction are acknowledged to be constituting, law-creative, lawenforcement and law-restorative ones. Each of the above areas is, to a certain
extent, executed by the Russian Federal Bailiffs Service (hereinafter – RFBS)
and plays its own unique role in protecting rights and freedoms. Within
the framework of the given work devoted to the balance of legal and moral
dimensions of limiting the debtor rights in enforcement proceedings it seems
necessary to give a more detailed clarification of specifics in law enforcement
area as per RFBS activities.
The law enforcement area of the state protective function is understood
as activity meant to create favorable conditions for effective execution of
legal mandates, insurance of rights and freedoms of subjects of law and is
executed hitherto and out of alignment with violations of public order2. The
given activity can be carried out in four versions: observance, execution,
application and practice of law3. As far as limitation of the debtor rights is
concerned, such an area as observance of rights is of utmost interest. In terms
of enforcement proceedings it means execution of prohibiting and limiting
norms and involves on the part of enforcement proceeding subjects abstaining
from committing actions that are banned.
There are various views on the essence of legal prohibitions expressed in
literature by different authors. A.M. Vitchenko considers prohibition to be a
convenient deterrent tool; A.V. Malko, K.V. Shundikov define prohibitions as
state power deterrents; A.S. Pigolkin. U.I. Slepchenko, L.S. Yavitch determine
1
Pozharskiy D.V. The state protective power (theoretical and methodological problems).
Diss. of doctor in jurisprudence. M. 2014; Andreev A.G. The State protective power in modern
conditions: Extended abstract … of Cand. Sci. in jurisprudence. M. 2002.
2
Ryabova E.V. Law-enforcement function at the time of forming lawful Russian state.
Extended abstract … of Cand. Sci. in jurisprudence. Volgograd, 2005.
3
Sim A.V. Functions of protecting individual’s rights and freedoms in contemporary Russian
state. Extended abstract … of Cand. Sci. in jurisprudence. Nizhniy Novgorod, 2004.
356
V. Barsukova.Limitations of the debtor rights
prohibitions as protection means; N.G. Aleksandrov, O.S. Ioffe, N.V. Vitruk
view them as a way to affect public relations relating prohibitions to legal
norms. All these definitions have something in common. They directly or
indirectly recognize prohibitions as legal ways to set up barriers, to determine
limits to freedom, preventing undesirable socially harmful behavior in society1.
Thus, the purpose of prohibitions in protecting rights is to eliminate possible
violations of freedoms and rights2. Such authors as S.S. Alekseev, V.D. Sorokin, A.G. Bratko plainly state it The category of «limitations» is similar
to the notion of prohibition. The term «restriction» is quite often applied to
law when interpreting law in general as citizen's freedom limited by (frames,
margins, borders). As for the balance of the given categories there is no unified
view on the point in legal texts. Yet, it seems possible to agree with stand of
such scientists (A.V. Malko, N.M. Korkunov, A. Kuropatov, G.V. Nazarenko,
M.M. Sultikov, V.D. Sorokin, E.D. Mizulina, F.N. Fatkullin) who identify
legal prohibitions with limitations considering limitations to be a variety of
prohibitions, regarding them as partial or incomplete prohibitions.
Contemporary legislation on enforcement proceedings stipulates a number
of prohibitions and limitations of the debtor rights, the main aim of which is
to ensure execution of claims contained in the writ of execution as well as to
motivate the debtor to do the necessary actions in favor of the plaintiff. The
above-mentioned prohibitions and limitations can be general (meant for all
enforcement proceeding subjects including the plaintiff) and special (meant
only for the de General prohibition-limitation actions are, for example, reconduction applied to persons ignoring attendance on call of the court bailiffexecutioner (the debtor included) (p. 5 art. 24 of the Law “On Enforcement
Proceedings” (hereinafter – The Law). Enforcement actions without prior
notice of them of individuals participating in the enforcement proceedingin
cases when the warrant is to be executed immediately as well as imposition of
arrest on property and application of other injunction remedies (p. 2 art. 24
of the Law) are also viewed as general limitation of rights.
As for special prohibitions and limitations applied solely to the debtor,
the terminology of the Law itself makes it possible to find among them arrest
of the debtor's property (art.80–83.1 of the Law) and temporary restriction
for the debtor to leave the Russian Federation (art. 67 of the Law). Arrest of
the debtor's property includes prohibition of administration of property and,
1
Nurmagambetov R.G. Constitutional and legal prohibitions and limitations: Monograph.
2009.
2
Sim A.V. Functions of protecting individual’s rights and freedoms in contemporary Russian
state: Monograph. Nizhniy Novgorod, 2012.
357
III. National doctrine of enforcement proceedings
if/when necessary, limitation of the right of usage of property or seizure of
property. The mode, amount and period of limitation of the debtor's right
to dispose of property is determined by the court bailiff-executor in each
case taking into account the quality of the property, its value for the owner
or proprietor, the pattern of its use. Temporary restrictions for the debtor to
leave the Russian Federation are applied in case of non-fulfillment, without
good reason, within the period provided for free-will execution of the claims
contained in the enforcement document, in which the amount of debt exceeds
ten thousand rubles, or in the non-property enforcement document issued
on the basis of the judicial act or the judicial act per se.
Thus, both prohibitions and limitations, as their variation, are aimed
against the debtor, they create obstacles in realizing the debtor's rights and
sometimes they completely block them up. In this connection, the issue of
balancing the interests of the debtor and those of the execution creditor as
well as proportionality of the applied limitations and the offence committed
by the debtor is of great importance. Against this background, correlation
of law and morality as legal regulators within the framework of enforcement proceedings gains vital significance. Dialectics of law and morality is
a fairly complicated phenomenon. Morality and law are in close interaction.
They back up each other in regulating social relations, positive influence on
individuals, shaping citizens' adequate political and ethical principles, legal
awareness. Their benchmarks have much in common. Just to name a few,
morality condemns committing offences. Law and morality are unified in
apprising such actions. However, close interaction of morality and law does
not mean that they are always and in all cases compliant. Contradictions
between law and morality are caused by their specifics, they have different methods of regulation, different approaches, criteria for assessing the
subjects' behavior. Law is more conservative in its nature, it lags behind the
flow of life, furthermore, there are a lot of collisions in it. Morality is more
mobile and more flexibly responds to ongoing changes. In other words,
morality can be said to be ahead of law. Morality calls on man much more
than law does, it passes harsher judgment.
Interaction of law and morality in regulating prohibitions and limitations
in enforcement proceedings is manifested in the following directions.
First of all, while imposing limitations and prohibitions the enforcement
authorities must primarily proceed from the execution creditor's interests. It is
quite logical and meets the requirements not only of law but also of morality,
since it is the execution creditor who is the victim. It should not be forgotten
that one of the main tasks of enforcement proceedings is to protect violated
rights, liberties and lawful interests of citizens and organizations (art. 2 of the
358
V. Barsukova.Limitations of the debtor rights
Law), and, hence, enforcement authorities must, first and foremost, tend
to restore execution creditor's rights since, under the circumstances, he
is the one who suffered from unlawful actions of the debtor. Moreover,
taking into account the content of art. 49 of the Law that defines the debtor
position in enforcement proceedings the execution of prohibitions envisaged
by the execution document is one of the main responsibilities of the debtor
in enforcement proceedings. That is, the debtor status per se presupposes
possibility to apply prohibition-limitation norms towards him.
Secondly, therequirements of morality will be met only by those prohibitions
and limitations towards the debtor which, on the one hand, do not violate the
debtor's right to honor and dignity as well as a decent life and, on the other
hand, fit the committed offence. It is worth noticing that contemporary Russian
legislation on enforcement proceedings is rather humane towards the debtor.
It explicitly provides such principles as respect for honor and dignity of the
citizen; inviolability of minimum property necessary to sustain the debtorcitizen and his family members; balance of the extent of the execution creditor
claims and enforcement measures. To avoid violation of the debtor right to a
decent life contemporary legislation on enforcement proceedings contains
a number of provisions establishing preferred treatment for him. Thus, for
example, art. 446 of CPC of RF contains a list of property that cannot be
recovered. Article 101 of the Law provides for items of income that cannot
be recovered. Article 87.1 of the Law states that in certain cases the debtor
has the right to dispose of his property at his discretion in order to settle his
debt to the execution creditor. One can go on enumeratingthe norms which
to a certain extent improve the debtor's position, ensure him most favorable
treatment. If we tackle the issue of balancing the imposed limitation and the
extent of the committed offence it proves to be equivocal. On the one hand,
the range of limitations of their specific rights is not that large, among them one
can name only attachment of property and temporary limitation to leave for
abroad while in neighboring countries and beyond the list of such limitations is
much larger. For example, in such countries as Israel and England prohibition
to issue the debtor a passport, a foreign passport or other travel documents is
applied; In England, Israel, Kazakhstan such prohibition as withdrawal of
driving licenses (certificates), a license for certain kinds of activities is applied;
in Israel prohibition to the debtor to use a payment card as well as termination
of investments into corporation's stocks are applied1. On the other hand, still
there are excesses in imposing limitations to the debtor's rights. Yet, these
excesses are rather of law-enforcement sort. Thus, for example, there emerges
1
URL: http://r86.fssprus.ru/ogranichenija_specialnykh/ (Accessed: 21.08.2015).
359
III. National doctrine of enforcement proceedings
a question whether it is moral not to let the debtor leave for abroad if he is ready
to settle his debt immediately at the airport
So, general tendency of reforming Russian legislation on enforcement
proceedings is directed to its humanization, i.e. commitment to man, his
rights and freedoms as utmost values. No doubt, it promotes enhancing
moral aspects in legal regulation and law-enforcement. Yet, in our opinion,
there are certain cases of so called “pseudo humanization” and “pseudo
morality”. Excessive fear to restrict the debtor's rights (including waiver
to introduce furtherlimitations which have been rather effectively applied
in foreign countries for a long time) does not always favorably affect the
execution creditor's rights or aids to fulfill enforcement tasks. In practice,
good aims sometimes lead to contradictions and shortcomings. It is confirmed
by a still rather low level of severability of jurisdictional acts in the Russian
Federation. Both legislation and law-enforcement must manifest the best
possible balance of the debtor's rights and their limitations in favor of the
execution creditor as the subject that needs to be protected and the state as
the subject that is intended to protect the interests of the latter.
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