Actual issues of reforming the activities of private enforcement agents in the Republic of Kazakhstan
It is known that the execution of judicial acts is the ultimate component in the work of the legal system of the Republic of Kazakhstan as a legal state to protect the freedoms and legitimate interests of its citizens.
As it was defined by the Law of the Republic of Kazakhstan dated June 30, 1998 “On Enforcement Proceedings and the Status of Enforcement Agents”, which lost its force, only state bailiffs (the “SB”) were engaged in the execution of such court decisions. At the same time, there was a situation in the country for a long time when the share of executed judicial acts remained extremely low. The main reasons for the ineffectiveness of the SB’s were high workload, low wages, lack of personal interest of the performers in the proper implementation of the acts and, as a result, low image and attractiveness of the activity as a whole.
In this regard, the state faced an urgent need to expand both the number of bailiffs and the improvement of the overall quality of enforcement of judicial acts.
The institute of private bailiffs, as a new institute, actually began to fully function in Kazakhstan only from August 2011, when the first competition was held for holding the position of private bailiffs. Around the same period, the first regional collegium of private bailiffs were formed in the regions, and at the end of 2011 the Republican Collegium was created. At the same time, the new law regulating the activities of bailiffs became the Law of the Republic of Kazakhstan “On Enforcement Proceedings and the Status of Bailiffs” dated April 2, 2010 (the “Law”).
In present times, the overwhelming majority of judicial acts are executed by private bailiffs (the “PB”). Moreover, the National Plan of the Head of State was put forward, which envisages a phased reduction of state bailiffs by the end of 2018, thus, all judicial executive work already in 2019 should go almost entirely into the hands of PB’s.
However, assessing the work of PB’s, it can hardly be called a perfect one today.
For example, according to the data of the Ministry of Justice of the Republic of Kazakhstan, in 2017 2,668 complaints were received regarding unlawful actions of the PB’s. In the same year, 1071 PB’s were brought to disciplinary responsibility, 85 licenses were suspended, 28 licenses were terminated.
In August 2018, according to the press service of the Ministry of Justice of the Republic of Kazakhstan, it became known that the General Prosecutor’s Office conducted a large-scale audit of the Republican Chamber of Private Bailiffs, and the operator of a single electronic trading platform on the organization of enforcement proceedings and the rule of law in conducting electronic trading in 2015-2017 and the past period of 2018. As a result of the inspection, gross violations of the law were revealed: in particular, interference in the process of distribution of enforcement proceedings between private bailiffs. Selective inspections revealed 2500 such facts.
Thus, in violation of clause 11 of the Rules for the Distribution of Enforcement Documents between Private Enforcement Officers, approved by the order of the Minister of Justice of the Republic of Kazakhstan dated December 29, 2015, prospective enforcement lists were unevenly distributed by the Republican Chamber, and among 20 PB’s in various areas.
We do believe that most of the violations revealed the main problem of a private judicial execution in Kazakhstan: the desire of the PB’s to execute, in most cases, only those judicial acts that imply the possibility of higher earnings and the possibility of personal gain. In order to better understand how the amount of recovery affects the amount of earnings of PB’s, we give below a table of amounts of payments for PB’s activities (approved by the Decree of the Government of the Republic of Kazakhstan of May 4, 2014).
According to the executive documents of a property nature:
| Recovery amount | The percentage of the amount | The amount of monetary value from the maximum to the minimum |
| Up to 60 MCI | 25% | 0 - 37,243.75 tenge |
| From 60 MCI to 300 MCI | 20% | 300 - 150 995 tenge |
| From 300 MCI to 1000 MCI | 15% | 113 625 - 378 371.25 tenge |
| From 1000 MCI to 5000 MCI | 10% | 1 262 500 tenge |
| From 5000 to 10 000 MCI | 8% | 1 010 000 - 2 019 798 tenge |
| From 10 000 MCI to 20 000 MCI | 5% | 1 262 500 - 2 524 873.75 tenge |
| From 20 000 MCI | 3% | from 1 515 000 tenge |
At the same time, for executive documents of a non-proprietary (non-monetary) nature: on eviction and (or) relocation, the obligation of the debtor to perform certain actions and (or) refrain from committing them
- from individuals 50 MCI (126 250 tenge),
- legal entities 100 MCI ( 252 500 tenge)
- on securing claim, release of property from arrest and other executive documents - from individuals 20 MCI (50,500 tenge), legal entities 40 MCI (101,000 tenge);
At the same time, the earnings of the PB’s during recovery of compensation for harm caused by injury or other damage to health, or such a socially important Such cases as the recovery of alimony is only 1 MCI (2 525 tenge) from the amount of recovery quarterly.
It can be seen from the above data, in property matters, the final earnings of PB’s are actually not determined by the percentage of the recovery amount, but rather by the size of the recovery amount itself, the higher the recovery amount, the higher the earnings. In fact, such a wage formula led to the commercialization of court execution, which is why the interests of the state and citizens often remain secondary. In this regard, the purely personal interest leads to the fact that, despite the constant increase in the number of PB’s and a high proportion of executive performance in large executive acts, the total percentage of execution is hardly more than 30% every year.
For example, the execution of acts on socially important categories of cases (recovery of alimony, wages, benefits) is the lowest. Such low efficiency suggests that there is a violation of the principle of “the timeliness and transparency of the commission of enforcement actions and the application of enforcement measures,” referred to in Article 3 of the Law.
Thus, it can be said that, despite the expansion in the number of bailiffs, and a seemingly slight improvement in the field of enforcement proceedings compared to the SB’s, in general, the SB’s institution still shows its low effectiveness.
Despite the fact that the supervisory authorities each year reveal numerous violations and continue to bring a considerable amount of PB’s to disciplinary responsibility, in general, this does not improve the picture much, because PB’s, as a tool for executing court decisions, simply does not have another alternative. The abolition of PB’s and the return of SB’s will not solve the problem, since the SB's has shown its even lower effectiveness.
Therefore, today in Kazakhstan there is an urgent need to reform the system of PB’s activity.
To do this, we consider it necessary to more rationally consider the size of payments for PB’s activities approved by the Government of the Republic of Kazakhstan on May 4, 2014. Namely, it is necessary to introduce more fixed amounts of payments for the activities of PB, regardless of the collection amounts. Thus, the PB’s will have fewer opportunities to give an advantage to the execution of some acts to the detriment of other acts, and the total earnings of the PB’s will mainly depend not on the number of potentially “monetary” executive documents, but on the quantity and quality of the acts executed as a whole.
Such measures should encourage the PB’s to perform their duties more honestly and without prejudice and, in general, improve the timeliness of the execution of judicial acts.
Askar Sarsenbekov
Lawyer
KEREMET Holding