Attempts by representatives of the profession to counteract the hard burning of their activities by the Ministry of Justice are very timid.
Last days, the fourth congress of private performers was, in essence, the first summing up of the results of this new legal profession. The Association of Private Entrepreneurs of Ukraine (ACHIU), established on December 14, 2017, is the only representative professional body, has decided to invite not only elected delegates from the regional councils, but also all those who wish their members (144 at the end of 2018).
However, only one could boast of the congress: over a year and a half, the new institution for enforcing judicial decisions clearly proved its effectiveness. 80% of enforcement proceedings, which are being executed by "private traders", are brought to a successful result - the collection is taking place, money is actually returned. Unlike state executives, whose decisions can be executed for years.
On this successes are over. Moreover, the profession itself suddenly turned out to be in an unenviable position. The complicated system of admission to the profession, the maximum rigidity of penalties imposed by the disciplinary commission for unconvincing violations of professional standards, led to the sharp drop in the number of those wishing to engage in this type of activity. In particular, within a year the association was able to form only 11 regional councils throughout Ukraine, but no more people. Ensuring the functioning of the ACIU secretariat, attracting specialists to work on improving the regulatory framework, informational support for the activities of private performers and other important functions would be impossible without financial and methodological support of international partner projects.
The management of ACIU is trying to change something and asserts that it is for expanding the independence of the profession, increasing the reliability of the protection of the rights and interests of private performers, but expressing their demands for some reason very confused and uncertain.
Today in Ukraine, access to many legal professions is carried out through a qualification examination, which usually consists of a theoretical part and a practical task. Representatives of the Ministry of Justice participated in the compilation of all examination methods and provisions that would not subsequently lead to any complaints from participants of qualification selection. However, with regard to private performers, the system of admission to the profession for some reason decided to complicate.
Candidates in private performers are evaluated in three stages: tests on the theoretical part, situational tasks and practical tasks. Until the last stage even those who have passed it, and today there is a question.
"An unclear evaluation criterion at this stage. There is definitely a subjective moment there. In addition, a mandatory minimum score is set. Frequent story when a person gains high marks in the first two stages, but suddenly does not reach the minimum in the third and as a result does not hit the profession. It seems to me, these norms need to be changed ", - says v.o. the head of ACHIU, the private executor from the Dnipro Alexander Sevokozov.
Particularly destructive was the very establishment of a minimum score in the third stage. Prior to the introduction by the order of the Ministry of Justice of September 18, 2017, this provision to the admission procedure to the profession of private performer, the ranks of "private traders" grew. After this date, it was not uncommon for the situation that when a group of 25 people who came to the exam did not succeed in bringing it successfully.
In 2018, the gloomy number of the qualifying exam went through. According to the report on the activity of AICHU this year, out of 525 people who passed the preliminary training and admitted to the exam, only 259 of them appeared. Of these, they successfully passed the exam and received a certificate of private performers of 72 people (28% of those who passed the exam).
The Ministry of Justice for a long time basically stood in the position that the most complete understanding of the professional skills of the person and to check his professional competence allows it to perform the practical task, and if there is not enough score at this stage, then the qualification of the applicant is questionable.
In the beginning of 2019, the situation improved slightly. According to the deputy minister of justice on issues of executive service Svetlana Glushchenko, three qualifying exams have already been conducted, in which 37 applicants took part. The Qualification Commission on the results of the exam provided access to the profession to 18 people (50%).
However, the total number of professional ranks continues to be insignificant - today only 159 private performers are listed in the register. At the same time, 53 of them, having received certificates, have not begun practical activity. And all this - against the background of the army of 4 500 state executives.
As you know, according to the calculations of international experts, in Ukraine, the availability of 2 thousand private performers would be optimal. These calculations are based on the ratio of the number of private performers to the population.
The Deputy Minister of Justice agrees that the weak growth of private performers is a challenge that needs to be overcome. But until the cause of the problem, she calls the discipline of the Qualifications Commission, especially those of her four members who represent private performers. Their failure to attend a commission meeting results in the absence of a quorum and the failure of examinations.
"If we hold at least two meetings of the Qualifications Commission a month, without persuading each other to come to the meeting, I think the number of private performers in Ukraine will grow," Svitlana Glushchenko said confidently at the congress.
Disciplinary skating rink
Another factor that does not contribute to the growth of the popularity of the profession - the prevailing disciplinary practice for private performers. Secretary of the Disciplinary Commission Alexander Wolf points out that since the day when the Institute of Private Executors appeared in the Ministry of Justice, there were 453 written appeals against decisions, actions or inactivity of private performers, of which only 12 submissions were sent to the commission, and even less satisfied - 4 submitted.
He also outlined the grounds for imposing disciplinary penalties against 4 private executives:
- failure to comply with the requirements of a court order prohibiting any actions;
- implementation of enforcement proceedings, which is simultaneously being prepared for execution in the bodies of the State Bailiff Service;
- acceptance of a document that did not meet the requirements of the law;
- violation of the territoriality and jurisdiction of the execution of court decisions;
- Violation of the order of attachment to the debtor's property.
As you know, the punishment was the maximum - a temporary suspension of activity or even deprivation of the right to a profession.
All this caused a mixed ambience in the professional environment. Moreover, the two decisions of the disciplinary commission have already been abolished in court.
And although the congress did not support the proposal of one of the first private performers, Andrei Avgorgov, who fell under a disciplinary skating rink, but who managed to restore his violated rights in court, including the appellate instance, the lack of confidence in the four representatives of the profession in the disciplinary commission, the professional community questions to the state regulator remained.
The main one is the compliance of sanctions applied to the offense committed by a private executor. "The community does not understand why in each case this was exactly imposed. All types of punishment should be clearly structured according to the types of violations. If such a structure is understood by us, it will become a benchmark for a private executor, as he will do in one way or another, in order to avoid disciplinary proceedings ", - says Oleksandr Syvokozov.
Everything - because of the novelty of the profession and relatively short period of the work of the disciplinary body, convinced the Ministry of Justice. "Practice is not yet clear, therefore, the availability of court decisions that cancel the decision of the disciplinary commission is absolutely normal", says Svetlana Glushchenko. She is confident that eventually everything will be adjusted. The Ministry will form disciplinary practice, it will also study the experience of other disciplinary bodies, in particular, the High Council for Justice.
Moreover, the Ministry of Justice will improve the profile law of private performers, in which ministry experts have noted systemic shortcomings. "We are already coming to the final version of the new bill. I believe that it takes into account all Agency's requests related to the extension of the powers of private performers, their assistants, as well as on the further convergence of competences with the civil service. The final version is sure to agree with ACHIU ", - assured the deputy minister.
Mediator or superfluous link
The congress devoted much of the time to the discussion of such an institution as a disciplinary commissioner, the introduction of which is recommended by international partners as an advisory or advisory body when making decisions to the disciplinary commission. The leadership of the ACHIU supported this idea, even drafted amendments to the Association Charter and the Provision on Disciplinary Commissioner. "We put great hopes on him so that in the future there were no conflict situations connected with misunderstanding of certain disciplinary decisions", - Alexander Syvokozov notes.
The disciplinary commissioner, in his opinion, will prepare a report in which he will present his vision and understanding of a particular misdemeanor. The head of the association hopes that it will be an intermediary between the disciplinary commission and the professional community. "Although I myself do not fully understand how it will work," he said at the same time.
The community itself also shares this misunderstanding.
"Some think that the disciplinary commissioner will act as a lawyer, a defender of a private performer. But that's not the case. An authorized person must be an independent person who is an expert in the enforcement proceedings. He should be an expert trusted by private executives, a professional community and the Ministry of Justice. His main task is to give an opinion on the fact that the performer has been found guilty of a disciplinary offense or not, "said Alexander Kuz, a private performer from Kyiv, who shares his position.
And his colleague Eugene Dyachenko believes that the professional community should not trust its representation in the commission even a mega-professional, because there will always be doubts that this person expresses the position of the majority of the community.
The most radical thoughts were expressed by Yuriy Blyznyuk, a private performer from Kharkiv. In his opinion, if the conclusions of the disciplinary commissioner do not lead to any legal consequences, this institute is not needed at all.
The Ministry represented by S. Glushchenko diplomatically stated that he supported all initiatives of the Association of Private Entrepreneurs aimed at the development of the profession, but before the launch of the Institute of Disciplinary Commissioner it is necessary to determine its legal status.
As a result, delegates of the congress agreed only that the recommended institute, in principle, would be, and the definition of authority and the development of the Regulations on disciplinary authority - there is still something to think about.
The important thing is left out of attention
The future of the profession at the congress was spoken briefly, of course, paying more attention to the discussion of current issues.
"And for us, it is also important for the judicial reform that the existing mixed judicial system is a temporary option," said Irina Zharonkina, Chief National Expert of the EU-Justice Law Justice. According to her, as the analysis of the relevant practice in other European countries shows, the mixed system is least effective. Despite the competition between state and private performers, there are still some problems - inequality in competencies, the dominant position of the civil service, which is especially manifested in mixed industries.
"The project's position is the gradual complete privatization of the system of execution of court decisions. The way passed by notaries was indicative. Today we already have 5 thousand private notaries and only a thousand state ones. Moreover, they have full equality in their competencies. The same should be true of performers ", - says I. Zharonkina. She also believes that the effectiveness of resolving professional issues entirely depends on strong self-government. If the representative body will actively shape the community's position and defend it against the Ministry of Justice, it will be the remedy for the over-regulation of the profession by the state.
"Issues of inspections, access to the profession, disciplinary and qualification issues - everywhere the association should take a clear position", - emphasizes the expert. Having achieved the solution of these issues, we will be able to accelerate the growth of the number of private performers. And as you know, the number of finance and the ability to attract additional resources are exactly what forms a truly strong and independent representative body.
Author: Sergey Glushko
(translated using google translate)