Three steps to improve the system of PEOs' disciplinary responsibility
Jun 03, 2020 | Judiciary, Justice, Property rights protection
When amending legislation on enforcement of court decisions, it is necessary to take a very prudent approach to reforming mechanisms for bringing private enforcement officers to disciplinary responsibility. This opinion was voiced during the meeting of the Interregional Working Group "Disciplinary Responsibility of Private Enforcement Officers" by national expert of EU Project Pravo-Justice Viacheslav Panasiuk.
“There are many positive things in the current legislation regarding the disciplinary responsibility of private enforcement officers. Among such advantages are the following: wide representation of private enforcement officers in the Disciplinary Commission; meetings of the Commission are held openly which gives the opportunity for representatives of public organizations and the media to be present at the meetings; the institute of the Disciplinary Commissioner of the APEO was introduced. This person can protect the rights of PEOs in a more professional way by acting as an arbitrator when considering issues of bringing PEOs to responsibility. A big advantage is that today the law contains the possibility of challenging the decisions of the Disciplinary Commission".
Those were positive aspects of the current legislation pointed out by national expert of EU Project Pravo-Justice Viacheslav Panasiuk. He added that these norms are contained in the draft law "On Enforcement Proceedings" which was developed on the platform of EU Project "Pravo-Justice".
According to Viacheslav Panasiuk, the draft law of EU Project Pravo-Justice abolishes the norms hindering the development of a young but effective and promising institution of private enforcement officers of Ukraine.
First, it is necessary to develop unification of the practice of bringing private enforcement officers to disciplinary responsibility. Such a step in the future will facilitate work of the Disciplinary Commission members and will form guidelines for the professional community on how to act within the legal framework so as not to fall under the disciplinary function of the Disciplinary Commission.
Secondly, the requirements for reasoning and substantiating the Commission's decisions must be clearly established at the legislative level", said expert of EU Project "Pravo-Justice". He explained that currently the decisions of the Disciplinary Commission are taken pro forma and such protocols contain no reasoning and no substantiation of bringing private enforcement officers to responsibility or not.
"Such a gap complicates judicial review of decisions of the Disciplinary Commission. When a court starts considering cases, it faces a situation where there is very little information to take a fair decision" emphasizes the expert.
Thirdly, according to the expert, it is necessary to improve the moment of entry into force of the decision of the Disciplinary Commission at the legislative level. It is logical to lay down that such decision enters into force after the expiration of term of its challenge or from the moment of entry into force of the court decision.
"If a private enforcement officer has indeed committed a gross violation, he will not avoid disciplinary liability even if such a decision is postponed for 2-3 months (time for judicial review). But if the Disciplinary Commission members made a mistake and the court took the side of a private enforcement officer, then there will be a situation that the state when performing a punitive function will waste thereby two or three months for a person who performs useful functions for the state by facilitating enforcement of court decisions and bringing profit to the state budget as taxes", mentioned Viacheslav Panasiuk.
It should be noted that the draft law “On Amendments to Certain Legislative Acts of Ukraine Concerning Enforcement of Judgments and Decisions of Other Bodies” prepared by the Ministry of Justice strengthens the punitive model of disciplinary responsibility, in particular: the draft proposes to introduce an approach according to which judicial review is carried out on formal grounds, depriving private enforcement officers of the right to a full review of their disciplinary case by the court.