Failure to provide the possibility of voluntary enforcement of alimony payments – unconstitutional (Complaint no. 24g/2017)

On 14 December 2017, the Constitutional Court delivered the Judgment on the exception of unconstitutionality of Articles 15 para.(2) let.d) and 38 para.(4) let.f) of the Enforcement Code no. 443-XV of 24 December 2004 (complaint no. 25g/2017).

Circumstances of the case

The case originated in the complaint on the exception of the unconstitutionality of Articles 15 para.(2) let.d) and 38 para.(4) let.f) of the Enforcement Code no. 443-XV of 24 December 2004 raised by the lawyer Aureliu Scorțescu within the case-file no. 2rh-164/2016 pending before Chișinău Court of Appeal.

Article 15 para.(2) let. d) provides that the court of law shall present ex officio the enforceable title with a view of enforcement, in case related to the payment of alimony, while Article 38 para. (4) let. f) provides that in case of enforcement of the enforceable document within the deadline stipulated in art.60, para. (3), the debtor shall pay the enforcement fee in the proportion of 50% of its usual amount.

The author of the exception claimed that the challenged provisions are contrary to Articles 1 para. (3), 46 paras. (1) and (2) and 54 para. (1) of the Constitution.

The complaint was examined by the Constitutional Court in the following composition:

Mr Tudor PANŢÎRU, Chairman,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges

Conclusions of the Court

Having examined the case file and having heard the arguments of the parties, the Court held that enforcement of court judgments is the obligation of the debtor. If the debtor fails to fulfil this obligation in a voluntary manner, forced enforcement shall be applied by the bailiff.

The Court found that, under Article 15 para. (2) lit. d) of the Enforcement Code, the enforceable title in respect of cases related to the payment of alimony is submitted for enforcement by the court of law ex officio.

At the same time, according to Article 10 para. (1) of the Enforcement Code, forced enforcement is composed of a set of measures whereby the creditor, through the bailiff and with the consent of competent state authorities, empowers his/her rights recognized by the enforceable document, in case the debtor fails to fulfil his obligations voluntarily.

In its Judgment no. 7 of 15 April 2011, the Constitutional Court ruled that the measure of forced enforcement should only be applied after the expiry of the term provided for voluntary enforcement of the enforceable title and following reasonable efforts to collect the debt by other means, so that forced enforcement be the very last solution likely to influence the conduct of debtors.

In the present case, the Court noted that, when the court of law submits the enforceable title ex officio for enforcement, the debtor is deprived of the possibility to voluntarily enforce the court judgment until the launch of forced enforcement procedures, contrary to the provisions of Article 10 of the Enforcement Code. This circumstance leads to the automatic incurring of enforcement costs collected by the bailiff in all cases of total or partial repayment of the obligation set forth in the enforceable document.

Consequently, automatic submission of the enforceable title for enforcement generates additional payments that would not otherwise be paid if there existed the possibility of voluntary enforcement. This situation constitutes thus an excessive burden on the debtor's assets, which undermines his right to property guaranteed by Article 46 para. (1) of the Constitution.

For these reasons, the Parliament shall regulate the deadlines for voluntary enforcement of court judgments. Moreover, in order to exclude an excessive burden on the debtor, the Court considered it necessary to regulate the periodical collection of the fee while pursuing regular payments.

Prior to the regulation by the Parliament of the deadlines for voluntary enforcement, before the submission of the enforceable document for enforcement the 15-day period after the decision becomes final shall be applied for the purpose of voluntary enforcement, similar to the deadline provided for in Article 60 para. (3) of the Enforcement Code. This reasoning, however, does not prevent the Parliament from establishing other deadlines for voluntary enforcement of different categories of enforceable acts.

At the same time, the Court recalled that, while delivering its Judgment no. 1 of 15 January 2013, an Address was issued to the Parliament indicating the necessity of providing the creditor's obligation to request the debtor to enforce the enforceable document in a voluntary manner prior to the initiation of enforcement proceedings. However, this Address has not been executed so far, and given this fact the Court will repeatedly notify this omission to the Parliament.

Referring to the author's allegations concerning the unconstitutionality of the provisions of Art. 38 para. (4) lit. f) of the Enforcement Code, which regulates the amount of the bailiff's fees, the Court held that the bailiff does not decide arbitrarily on the manner, term and amount of the fee, this being established by the law.

Moreover, according to Articles 36, 44 and 66 of the Enforcement Code, the court order on the recovery of enforcement costs may be challenged under judicial review procedure within 10 days of the date of communication.

The Court held that the provisions of Article 38 (4) lit. f) of the Enforcement Code are only applicable to forced enforcement procedures.

Therefore, given the findings of the Court on the unconstitutionality of the omission to grant a time-limit for voluntary enforcement of judgments prior to the initiation of forced enforcement proceedings, the challenged provisions regarding the collection of fees under forced enforcement procedure are not contrary to Article 46 of the Constitution.

At the same time, in case the enforceable title on the payment of alimony was sent ex officio by the court of law to the bailiff, failing to grant the period for voluntary enforcement, while verifying the correctness of establishment of the bailiff's fee, the court of law shall verify whether the payment of alimony was made without the interference of the bailiff.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court partially admitted the exception of unconstitutionality raised by the lawyer Aureliu Scorţescu in the case file no. 2rh-164/2016, pending before Chișinău Court of Appeal.

Declared as unconstitutional Article 15 para.(2) let.d) of the Enforcement Code no. 443-XV of 24 December 2004.

Recognized as constitutional Article 38 para.(4) let.f) of the Enforcement Code no. 443-XV of 24 December 2004.

Prior to the regulation by the Parliament of the deadlines for voluntary enforcement, before the submission of the enforceable document for enforcement the 15-day period after the decision becomes final shall be applied for the purpose of voluntary enforcement, similar to the deadline provided for in Article 60 para. (3) of the Enforcement Code.

Taking into account the findings of this judgment, in accordance with Article 28¹ of the Law no. 317-XIII of 13 December 1994 on the Constitutional Court, the Parliament shall adopt the necessary amendments in a priority manner.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.