The Estonian Universal Enforcement Procedure and the Bailiff as the Taker of Procedural Decisions

Author:Anneli Alekand
Position:LL.M., Notary in and for Tallinn

1. Introduction - 2. Enforcement proceedings as civil enforcement? - 2.1. Estonian universal enforcement procedure - 2.2. Procedural principles - 2.3. The issue of jurisdiction - 3. Legal position of a bailiff - 3.1. The bailiff in the structure of the authority of the state - 3.2. Delimitation of the competence of bailiffs and courts - 3.3. Bailiff's discretion - 3.3.1. Existence of... (see full summary)


Anneli Alekand

LL.M., Notary in and for Tallinn

The Estonian Universal Enforcement Procedure and the Bailiff as the Taker of Procedural Decisions

1. Introduction

After regaining independence, Estonia has experimented with compulsory execution by both the executive power and judicial power2. The enforcement procedure reform of 2001 decided in favour of freelance bailiffs and the system has proved to be effective -- with the number of closed files doubling one year after the reform3.

The purpose of this article is to analyse how to classify enforcement proceedings in the Estonian legal system and what position and competence the legislature has given to the bailiff. The analysis also has relevance in the European context, as the European enforcement instrument introduced from 1 March 20024 as a reaction to "mobile debtors" has not, because of the great variety of enforcement procedure regulations in the Member States, made things much easier for creditors, and this is why attempts are being made to harmonise the legal orders of the Member States and identify the most effective procedure5.

The Estonian law of enforcement procedure is difficult to classify into a particular branch of law: it is separated formally from other areas of law by a specific law, and organisationally by a separate enforcement body -- the freelance bailiff. As the matter of jurisdiction in disputes regarding enforcement proceedings has caused several disputes in Estonia which have reached the Supreme Court, the first part of the article discusses the difficulty of classification and the reasons for the difficulty. The author also tries to answer the question of whether different procedural rules and principles are actually necessary for the enforcement of private and public claims.

Not only the issue of the procedural rules, but also the status of the bailiff, is often unclear to the parties to a proceeding. The bailiff is regarded as a representative of the claimant, similar to a trustee in bankruptcy, or a state official, depending on whether the claim being enforced is a private or public claim. According to § 2 (2) of the Bailiffs Act, a bailiff is neither an undertaking nor a state official; § 9 (1) of the Code of Enforcement Procedure requires a bailiff to remove himself or herself from enforcement proceedings if he or she is also the representative of the claimant. The term "freelance" raises the question of whether the profession of a bailiff should be accessible to everybody and whether there should be free competition between bailiffs within the meaning of the directive on services in the internal market6. In the second half of the article the author analyses the position of a bailiff in the structure of the authority of the state, and a bailiff's resulting competence.

2. Enforcement proceedings as civil enforcement?
2.1. Estonian universal enforcement procedure

In Estonia, enforcement proceedings are often called "civil enforcement proceedings", as if they are only applied to private law relationships. This is how it is in many European countries; discussions on the harmonisation of European enforcement procedures usually concern only enforcement instruments arising from civil and commercial relationships and leave out the regulation of public law claims as an area closely related to the exercise of the authority of the state7.

If we view only the enforcement of private persons' claims in enforcement proceedings, then the classification of enforcement proceedings as an area of private law is somewhat justified. Already at the beginning of the last century, the German jurist Friedrich Stein drew attention to the fact that enforcement proceedings begin and end in private law8. It should be noted though that in Germany, enforcement proceedings are, first and foremost, seen as a follow-up to civil procedure, which enforces only private claims, and many legal theorists have reasoned the private law classification of enforcement proceedings with the theory of interest: proceedings are conducted in the claimant's interests, and the relationship between the claimant and debtor is that of two equal parties9.

The Estonian Code of Enforcement Procedure10 (hereinafter: CEP) recognises various enforcement instruments arising from civil relationships: court decisions and rulings in civil matters, decisions of foreign courts in disputes between private individuals, decisions of extrajudicial bodies, notarised mortgage contracts and pledge contracts of buildings, and notarised agreements concerning financial claims. The same executive body also executes completely different enforcement instruments under the same Code: fines imposed in misdemeanour proceedings, fines applied as criminal punishments, tax decisions, etc11. In the list of enforcement instruments provided in CEP § 2 (1), public law liabilities significantly outnumber instruments issued for the enforcement of private claims. The enforcement procedure statistics published on the Ministry of Justice's website also indicate a large proportion of public law claims. As of the end of 2007, the total of 201,834 open enforcement files included 36,541 files concerning private claims12.

The Estonian enforcement procedure thus covers various other proceedings: not only civil proceedings, but also administrative, criminal, tax, misdemeanour and extrajudicial proceedings. This varied list of enforcement instruments shows that in Estonian law, enforcement proceedings are not only a follow-up to civil proceedings, but also a follow-up to criminal, administrative court, administrative, misdemeanour and tax proceedings, labour dispute settlement and other procedures. Since appeals against the acts of a bailiff fall under the general jurisdiction (CEP § 218 ff.), every compulsory execution may at some point, via the "filter" of enforcement proceedings, become a civil proceeding.

In addition to the above, under CEP § 2 (1) a bailiff also enforces rulings on the securing of an action, which are acts of civil procedure, as well as investigators' rulings for collection of information about the property of an accused, and requests substitution by detention of fines for misdemeanours and monetary fines and fines to the extent of assets, which have been imposed as criminal punishments -- these may be regarded as acts of criminal procedure. In addition, under the Immovables Expropriation Act13 , a bailiff has the duty to participate in determining the price of an immovable.

Based on the above, the Estonian enforcement procedure can be regarded as a universal procedure, in which a bailiff performs acts in the course of which the bailiff may and can exercise duress and which are not in the competence of any other body. The author of this article considers that this universal procedure certainly belongs to public law and is positioned somewhere on the border between procedural law and administrative law.

The use of common procedural rules and a single central procedural body avoids a "race" for the debtor's assets by executive bodies acting under parallel compulsory execution proceedings, and renders the proceedings clearer and simpler for the debtor, who only has to communicate with one bailiff who is conducting the proceedings -- this is certainly a strength of the Estonian regulation when compared to a multiplicity of compulsory execution proceedings. Simplicity and clarity, however, cannot serve as a goal on its own, and it is appropriate to ask at this point whether the procedure should for any reason be different for private and public law claims.

2.2. Procedural principles

When studying the universal procedure applicable in Estonia, one may ask whether the procedure rules and principles can really be the same for instruments produced as a result of a dispute between equal parties, on one hand, and for the enforcement of the state's obligations or criminal punishments, on the other.

The Code of Enforcement Procedure provides for a different procedure only for the enforcement of monetary fines and fines to the extent of assets which have been imposed in misdemeanour and criminal proceedings (CEP § 198 ff.). Firstly, these are the only types of claim for which the legislature has provided for gradus executionis for making claims against the debtor's assets, i.e. a claim for payment is first made on money, securities and claims, followed by other movables, and, in the last order, immovables, while preference is given to the debtor's separate property over the joint property of spouses. Secondly, these enforcement instruments allow for substituting the claim on the debtor's assets by detention, i.e. making a claim on the debtor's person. The third major difference is the limitation period for enforcement depending on the gravity of the misdemeanour: 18 months, three or five years, during which the proceedings must result in the collection of a fine or substitution of the punishment. The procedure for enforcement of other public claims, such as local taxes, is exactly the same as for private claims.

In comparison, in Germany the compulsory execution of public claims is subject to specific laws for each type of claim and is performed by different bodies. The enforcement of administrative acts is governed by Verwaltungs-Vollstreckungsgesetz14 , tax decisions are subject to Abganenordnung15 , and fines in criminal matters are governed by Strafprozeßordnung16 and Justizbeitreibungsordnung.17 Public law...

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