Enforcement officer's resolution on determining the amount of additional costs of enforcement proceedings is subject to appeal in administrative proceedings - SC GC

Complaints against the actions of the enforcement officer regarding the issuance of a resolution on determining the amount of additional costs of enforcement proceedings, as well as the recognition as unlawful and cancellation of the relevant resolution should be considered in accordance with the rules of administrative proceedings.

This conclusion was made by the Grand Chamber of the Supreme Court.

A writ of execution for the recovery of alimony from the applicant was being enforced by the Enforcement Division. The resolution of the state enforcement officer determined for the applicant as a debtor in the enforcement proceedings the amount of additional costs in the form of a court fee paid by the Enforcement Division for filing an appeal against the district court's decision.

The applicant considered the said resolution of the state enforcement officer to be unlawful, since, by cancelling the district court's ruling, the appellate court did not resolve the issue of allocation of court costs.

The civil courts (first and appellate instances) refused to open proceedings on the applicant's complaint against the enforcement officer's actions, as the claims should be considered under the rules of administrative proceedings.

The Grand Chamber of the Supreme Court agreed with the conclusions of the courts of previous instances, noting that the Law of Ukraine ‘On Enforcement Proceedings’ refers to disputes, including, but not limited to, disputes regarding appeals against decisions, acts or omissions of the enforcement officer on recovery of enforcement proceedings' costs.

The legislation includes both the category of ‘resolution on recovery of costs of enforcement proceedings’ and the category of ‘resolution on determining the amount of additional costs of enforcement proceedings’.

The Grand Chamber of the Supreme Court found that additional costs of the enforcement proceedings are costs associated with the enforcement of a court decision that are not included in the minimum costs of the enforcement proceedings (e.g., costs of expert examination, storage of seized property, engagement of an interpreter, payment of court fees).

At the same time, the criterion of additional costs of the enforcement proceedings does not affect the determination of the jurisdiction of the dispute.

Although resolutions of the enforcement officer to recover the costs of the enforcement proceedings and to determine the amount of additional costs of the enforcement proceedings are different resolutions of the enforcement officer, they have a similar legal nature: both types of enforcement resolutions relate to the direct execution of decisions of other bodies (officials) - the enforcement officer, and not to a court decision.

Therefore, it would be contrary to the logic of the law to refer to the jurisdiction of the administrative court an appeal against the enforcement officer's decision to recover the costs of the enforcement proceedings, and to the jurisdiction of the civil court an appeal against the enforcement officer's decision to determine the amount of additional costs of the enforcement proceedings.

Moreover, in the case at hand, the enforcement officer issued a resolution ‘on determining the amount of additional costs of the enforcement proceedings’, which in essence and in fact is a resolution on recovery of these costs of the enforcement proceedings and is a separate enforcement document. In the disputed resolution, the enforcement officer determined the amount of additional costs of the enforcement proceedings for the debtor, specified the recipient of these funds and that this resolution is an enforcement document and comes into force from the moment it is issued, as well as the deadline for submission for execution of three months.

Thus, the rules of administrative proceedings should be used to consider complaints against the actions of the enforcement officer in making a decision to determine the amount of additional costs of the enforcement proceedings, as well as to declare the relevant decision unlawful and cancel it.

Resolution of the Grand Chamber of the Supreme Court of 11 September 2024 in case No. 310/2210/21 (proceedings No. 14-82цс24) - https://reyestr.court.gov.ua/Review/122061990.  

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.