RJRC members discussed bringing private enforcement officers to disciplinary responsibility

On April 9, with the support of EU Project "Pravo-Justice" and with the participation of representatives of the Regional Justice Reform Councils (RJRC), an online discussion of the procedure for bringing private enforcement officers to disciplinary responsibility took place.

During the event, the experts of EU Project "Pravo-Justice", disciplinary commissioner of the APEO Olena Ovcharenko and member of the Disciplinary Commission (DC) of the APEO Oleksii Solomko, presented the report “Analysis of the practice of bringing private enforcement officers to disciplinary responsibility”.

The main conclusion of the report is that the disciplinary practice as to private enforcement officers has a number of shortcomings. In particular:

• the activity of the DC is non-permanent;
• there are no guarantees of independence of the Commission Members and publicity of the activity of the DC;
• questions arise as to whether decisions of the Commission are reasoned and whether the degree of punishment is proportionate to a disciplinary offence committed;
• there is a conflict of interest in the activity of the Commission;
• the regulator replaces departmental control by judicial one;
• abuse by debtors of their right to appeal against the actions / omissions of a private enforcement officers and the lack of a proper objective "filter" when considering such complaints;
• motions to the DC drafted as a result of an extraordinary inspection of the Ministry of Justice are outside the scope the complaint under which such an inspection was conducted.

As a result, 75% of private enforcement officers' claims for setting aside the decisions of the Disciplinary Commission of Private Enforcement Officers are satisfied by the courts.

"We already have three decisions of the Supreme Court setting aside decisions of the DC on bringing private enforcement officers to disciplinary responsibility, 12-13 decisions of the Courts of Appeal and more than 20 decisions of courts of first instance in favour of private enforcement officers," said Olena Ovcharenko. Representative of the Lviv RJRC, private enforcement officers.

The representative of the Lviv Regional Justice Reform Council Zorian Makovetskyi, a member of the APEU, a member of the Disciplinary Commission of Private Enforcement Officers, expressed his position on the impact of court judgments in the consideration of complaints of the DC.

"If the court's judgement on this complaint is made in favour of a private enforcement officer, then a priori the motion must be rejected because the court does not see any violations. If the court judgement recognizes the actions of the enforcement officer to a certain extent illegal, this cannot serve as a basis for mandatory disciplinary action. This issue should be considered by the members of the DC collectively, taking into account the guilt, damage caused, violations of the law, etc." emphasized Zorian Makovetskyi.

APEO member Andrii Avtorhov spoke about the main novelties on disciplinary responsibility of private enforcement officers laid down in draft law No. 3726 (more details here https://cutt.ly/hcNC2cy).

In turn, Heorhii Parfonov, member of Odesa RJRC and chairman of the Council of Private Enforcement Officers of Odesa region stressed the importance of setting forth in legislation the right of private enforcement officers whose activities are suspended to finalize open proceedings.

“When the enforcement officer's activity is suspended, negative consequences occur not only for enforcement officer but also for the parties to the enforcement proceedings and other persons. For example, in respect of debtors who have paid their debts seizure cannot be terminated and persons who have purchased property through electronic bidding cannot obtain a certificate of sale of this property. Therefore, I would propose to replace such a type of punishment as suspension of activity in general with a ban on the opening of new enforcement proceedings so that the enforcement officer can carry out activities to lift seizures, issue acts, etc." emphasized Heorhii Parfonov.

APEO Chairman Vitalii Chepurnyi spoke about the strategic vision – what supervision APEO should have over the activities of private enforcement officers as an indicator of the community's ability to self-governance.

"In my opinion, effective control should be about the following. First, the approval of a perfect Code of Professional Ethics and a clear and understandable mechanism for monitoring compliance with it. Secondly, developing a clear and understandable mechanism for monitoring the implementation of decisions of the Council of Private Enforcement Officers of Ukraine, in particular the example of the implementing decisions on the appointment of a temporary private enforcement officer instead of the enforcement officer whose activities are suspended. Third, the existence of a clear and understandable procedure for monitoring the payment of membership fees and the timely and correct conclusion of insurance contracts for their civil liability", said Vitalii Chepurnyi.

Deputy Minister of Justice Andrii Haichenko who was present at the zoom 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, 204 private enforcement officers were never invited to the meetings of the DC. But the constant "visitors" of the DC are 5-10 private enforcement officers working on 37-39% of enforcement documents of the total enforcement proceedings in the country.

"The activity of the Disciplinary Commission is a consequence, the root cause - how can these 10 enforcement officers enforce 37-39% of the entire lump of enforcement proceedings? The lion's share of complaints is against these enforcement officers," said Andrii Haichenko.

Backgroung information:

Regional Justice Reform Councils (RJRCs) have been established with support of EU Project "Pravo-Justice" and function in Chernivtsi, Dnipro, Kharkiv, Lviv, Odesa regions and Donbas. To date, Councils members have been actively participating in drafting a bill on mediation, amendments to the Bankruptcy Code, proposals to improve legislation on enforcement proceedings, introducing e-court and discussing the concept of transitional justice.

RJRCs act as permanent working groups to promote bottom-up reforms: bringing region-specific challenges and potential solutions thereof to the level of central government.