After the publication of the Decree of the President of the Republic of Belarus dated April 7, 2022 No. 137 “On enforcement documents” (hereinafter - Decree), some non-resident creditors began to receive decisions of Belarusian enforcement bodies to suspend previously initiated (before the Decree) enforcement proceedings on the basis of the Law of the Republic of Belarus “On Enforcement Proceedings” (hereinafter - the Law) and with reference to the Decree.
Accordingly, the above situation affects creditors from “unfriendly” states (please note that there is no term “unfriendly” foreign states; it is correct to use “foreign states which commit unfriendly actions against Belarusian legal entities and (or) individuals”).
Consequences of suspension of enforcement proceedings for the creditor:
- all enforcement actions are on “pause”, i.e. no new enforcement actions are taking place;
- the debt can not be paid.
What can a non-resident creditor do in case of suspension of enforcement proceedings:
- To appeal against the decision to suspend enforcement proceedings
Appeal against the actions (decisions) of a enforcement agent has 2 stages: the first - out of court (to the head of the relevant enforcement body), and only then there may be the second - to the court.
- out of court order
Term - 10 working days from the date of receipt of the decision (on suspension). This term can be restored for serious reasons.
State duty is not paid.
The term for consideration of a complaint - 10 working days from the date of its receipt.
Based on the results of consideration of the complaint against the above decision, the head of the enforcement body has the right to:
- recognize the decision as legal and refuse to satisfy the complaint, the case will be suspeneded as earlier;
- recognize the complaint as justified and cancel the decision, thus the enforcement proceedings will continue.
- judicial order
In case of refusal to satisfy the complaint, the creditor has the right to apply to the court at the location of the relevant enforcement body.
State duty - 20 basic units (if a complaint is filed by a legal entity to the economic court, approximately 250 euro depending on the certain daily excange rate).
Term - 10 working days from the date of receipt of the decision of the head of the enforcemt body.
The term of consideration is 1 month from the date of receipt of the complain by the court.
The court has the right both to leave all the decisions in force, OR to cancel them and satisfy the claim of the creditor.
- To conclude an assignment agreement with a new creditor who is a resident of a state not included in the mentioned listThe creditor has the right at any stage (both before the initiation of enforcement proceedings, or during the proceedings, also during the suspended proceedings) to conclude with a resident of a foreign state (that is not included in the list of “unfriedly states”), an agreement on the assignment of the right to claim and to assign the corresponding debt (right of claim) to the new creditor in full or in partly.
The assignment of the right to claim is a legal cause for replacing of the creditor in enforcement proceedings, which is carried out by the enforcement agent at the request of the person with the submission of the necessary documents.
The decision of the enforcement agent to refuse in replacement of the creditor or other actions of the enforcement agent in this part may be appealed in accordance with the above mentioned procedure.
What will happen to the “new” enforcement proceedings if the practice of the legality of suspending enforcement proceedings is confirmed.
In our opinion, the enforcement agent shall consider the application for initiating of enforcement proceedings, and if there are no shortcomings in the documents, initiate enforcement proceedings, and then shall suspend proceedings in the same manner described above.
The actions of the creditor in this case are the same - to appeal against the actions of the agent to suspend the proceedings OR to replace the creditor under the writ of execution.
It is also possible that enforcement agents may refuse to initiate enforcement proceedings based on the impossibility of executing an enforcement document with reference to the Decree.
The decision of the enforcement agent on refusal to initiate enforcement proceedings may be appealed in the above order.
We are ready to provide all necessary advice and help in connection with mentioned questions.