The implementations of court decisions in practice

One of the problematic issues of the legal system in Azerbaijan is the execution of court decisions. The right to implementation of the right of any person specified in the court act by the state official is one of the basic rights. It is no coincidence that the European Court on Human Rights in the case of Hornsby against Greece came to conclusion that the law would be imaginary if the final court decision would not be implemented. According to the precedent law of the ECHR, Article 6 of ECHR (right to a fair trial) covers the procedures after the hearing and the procedure of court decision implementation.

 

 

From this point of view, the execution of court decisions has great importance in ensuring justice, in exercising legal mechanisms in the state. If a person’s right is reflected in the court act of one state and this right cannot be realized, then, justice is not ensured, the right reflected in the court act has no meaning. Thus, the trust to a fair trial of persons living in the state is decreasing.

The execution of court verdicts in Azerbaijan is carried out in accordance with the law “About the execution” December 27, 2001. In addition, there is also the law "About the executive officials" December 28, 1999, the rights and duties of executive officials, their provisions were reflected in that law.

It should be noted that there are sufficient normal provisions in the law about the execution to ensure the execution of court decisions on legal basis. The problem of execution of court decisions is not only the problem of legislation. Of course, there are some problems in the legislation related to legal certainty; however, this is not the problem of the Law on Execution, but the problem of the Code of Civil Procedure. For example, the defendant is able to appeal to the court of Appeals for the recovery of procedural period while the case is executing by the executive department.

It is sometimes possible to appeal to the Court of Appeals; despite a year has passed from the first instance of the court decision and the execution of case was finished. This is contrary to the principle of legal certainty.

The sources of the court decision execution problems are the followings:


1. Corruption – a person (debtor) who should fulfill a certain task according to the court decision agrees with the Executive Officer illegally and prevents the execution of the court decision.

2. Lack of information of the claimant – a person (claimant) does not know his/her rights in many cases, and an executive official uses this situation. 
3. The absence of the culture of a debtor – the debtors usually use all means to avoid the execution of the court decision. The measures envisaged by the law on execution sometimes are not enough for the debtor to execute the decision. For example, the debtor does not pay a debt to the bank. The debtor asks the familiar lawyers what would be if does not pay the debt. The debtor is asked about the property, does the debtor have a car or a house. The debtor replies that my house is documented under the name of my father and my car was documented under the name of my wife. The debtor asks: “can I be imprisoned for the debt?” The answer is no, according to the European Convention on Human Rights Protocol No. 4 the imprisonment penalty for debt is unacceptable. After that, the debtor feels sure.

4. Weak interaction between the public authorities – the court decisions execution problem derives from the court itself firstly. The judge should deal with the execution of the Court decision. In most cases, the court decisions are not forwarded for execution correctly in practice by judges. For example, the judge in a number of the cases against the defendants having different residential places should give a separate execution sheet to the relevant executive department for each defendant’s place of residence, but the court sends one execution sheet to the executive department in which region the court itself is situated. In practice, it is required several months to correct this elementary mistake. Some executive measures cannot arbitrarily be implemented by executive official; Executive official should give a presentation to the court for this purpose, after the court provides that the Executive Official may carry out this measure.  For example, the restriction the right of debtor’s leaving the country, arrest of debtor's property; debtor’s being subjected to administrative liability. Of course, this is good for the prevention of arbitrariness. The adoption of a decision seriously affecting debtor's rights and legitimate interests by the court is good. However, the court factor slows the case. It is possible to extend the execution of the decision to be implemented within two months for years. On the other hand, let’s assume that the debtor’s car was arrested by the court on the basis of the official presentation of the executive official. The car arrest is entrusted to the State Road Police in this case.  The Executive Official may send a letter requesting the arrest of the car, but it remains ineffective in many cases.
5. "Soccer-ball effect" of the execution sheet - in fact, this problem is very serious and difficult problem. I would like to inform you of this problem with a concrete example. Three friends - Ahmad, Mammad and Sherbet taken 10,000 manats debt from Topgulu.  Ahmed registered in Yasamal, Mammad in Surakhani and Sherbet in the Karadag district. Ahmad works at the Narimanov district "LLC1" company, Mammad at Sabail district "LLC2" company and Sherbet at the Nizami district "LLC3" company. The executive departments will change Topgulu into a "soccer ball" in this case. Yasamal District Court will forward the execution sheet to the residence place of the debtors for the execution in the best case. Imagine that at first, Topgulu should contact Yasamal, Surakhani and Karadagh district executive departments for the execution of the decision which is for his favor. Later, he will replace these executive departments with Narimanov, Sabail and Nizami district executive departments. However, it is considered in the law on execution that the executive sheets related with each other can be combined in one sheet. The tendencies "troubling" the citizens in practice should be eliminated.
6. The poor development of the Executive Representation institute – the parties which are not lawyers are represented in the courts by representatives having legal knowledge or by advocates and thus, a number of problems are solved. However, the parties are represented by representatives having legal knowledge during the proceedings of the executive departments in few cases. The provisions of the law on execution allows the Executive Representation institute and the relevant norms related this are reflected in that law.

The claimants or debtors not using the legal assistance of persons having legal knowledge may face violation of law for the lack of knowledge in many cases.

7. The issue of control over the activities of the executive officers– The control over the activities of the Executive officials is carried out by the court adopting the relevant decision, the relevant head of the executive department and most importantly Chief Executive Office of the Ministry of Justice. In practice, in most cases the judge making the decision is not interested in the execution of the decision. The judge considers he/she has done his/her work by making decision. It is possible in the legislation to complain against the actions or inactions of the executive officials. This is not a very effective method. Because the complaint against the action or inaction of the executive official should be given to the court, where he/she has been registered.  Taking into account that the majority of the executive offices are located in the same building with the court, the objectivity and impartiality of the judge raises a doubt in this case. The head of the relevant executive department branch carries out the management over the current activities of the executive department and does not have a very serious authority from point of control. Because he/she is not empowered to fire the executive official. The Chief Executive Office in most cases in response to the complaint related to the activities of the executive official writes a letter to the head of the executive department and to the person who had complained and appeals with the recommendation of executing the executive document and informing the claimant and the Chief Office about the results. In most cases, except the very serious violations of the Executive Officer the practical measures are not implemented related the violations of the executive officer.

8. The softness of measures – This is very strange, but executive officials are not interested in the application of very severe measures against the debtors.  In this sense, the executive officials behave softly against the debtors. For example, although there is considered a criminal responsibility in the Criminal Code for not executing the court decisions or for preventing their execution, the mandatory execution measures are applied in a few cases.

In the end, I invite everyone to be informed about their rights and freedoms. If we do not know our rights, we cannot demand our rights and achieve the establishment of justice.

Shukurova F.

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