In 2015, the CAS came into force, from that moment all cases of administrative jurisdiction are considered exclusively in compliance with the requirements of this code. In accordance with article 218 of the CAS, an administrative court may appeal the actions of officials, including bailiffs.
The application is submitted regardless of whether there was a preliminary complaint to the higher management of the executive officer.
What actions are subject to appeal
An administrative lawsuit against a bailiff may be filed to appeal the decision either when an official commits actions that violate rights, or if the executor does not act. In practice, most often claims are filed in the following cases:
- if the bailiff has not acquainted and handed over an act on the seizure of property;
- conducted an illegal debit of funds from a bank account;
- requested documents from a person who is not a party to the proceedings;
- temporarily limited the right to travel outside the country;
- unreasonably imposed a ban on registration activities related to real estate.
And the most extensive group of statements of claim on the inaction of the bailiff, that is, officials are delaying the initiation of enforcement proceedings or are not taking any measures to find the debtor.
Where to contact, term
The filing of an administrative claim against the bailiff is made in the district court at the place of the corresponding territorial FSSP.
It is necessary to file a claim within 10 days from the moment when the interested person became aware that his rights have been violated or the bailiff is inactive. If the deadline is missed, then a petition is filed with the claim for the restoration of the missed deadline, but with the obligatory indication of valid reasons.
The procedure for considering the application is given 10 days. In some cases, the term may be extended if the case file requires additional proceedings, but not more than 1 month.
Pre-trial settlement
Before drafting and sending an administrative statement of claim challenging the actions of the bailiff, it is recommended that a series of pre-trial procedures be conducted.
First of all, an explanation should be requested directly from the bailiff regarding his failure to fulfill his duties. After receiving the explanation, you can refer to the higher manual. It is clear that you should not expect any serious measures, but these documents will prove to the court that his intervention in a specific enforcement procedure is necessary and the filing of a claim is justified.
The interested person also has the right to appeal to the prosecutor. If the prosecutor’s office really reveals violations of official duties by the bailiff, then it will even help with the preparation of the statement of claim.
Sample complaint about the omission of bailiffs to higher management
The legislation does not provide for a unified form of such a document, therefore it is compiled taking into account the requirements for such types of documents. First, a “head” is drawn up for the document, which indicates to whom the complaint is addressed, then the details of the applicant are registered and in respect of whom the requirements are made. The main part of the document contains a brief summary and circumstances that gave the applicant an occasion to file a complaint. The requirements are indicated at the end. This may be a request for the termination of violations or the resumption of legitimate interests, other requirements. If necessary, copies of documents confirming the facts stated in the appeal are attached to the complaint about the inaction of the bailiffs (sample is given below).
The current legislation provides for a reduced time period for consideration of such complaints - 3 days. The higher management of the bailiff may decide on the validity of the claims and oblige the employee to stop the illegal actions or refuse the applicant, having made the appropriate decision, with justification of the reasons.
Form and content of the claim
Administrative action against the decision of the bailiff must be in writing. If the application is written by hand, then it is necessary to write clearly, without blots.
The details of the court, the defendant and the plaintiff are indicated in the heading of the document. Next is the title of the document, for example: “Administrative claim to challenge the actions of the bailiff”. The main part prescribes a brief summary of the situation, indicating the details of the executive document. Then it should be written how the applicant’s rights were violated, preferably with reference to the regulations.
In the last part of the main text the requirements are indicated, that is, what the applicant wants in the end. Then, a list of the attached documents is registered, a signature is put down, its decoding, and the date of the claim.
Document structure
The administrative claim against the bailiff does not have a unified form, nevertheless, when drawing up it, one should rely on Article 220 of the CAS. According to the requirements of this article, the application should have the following structure:
- name of the authority to which the lawsuit is filed;
- applicant data;
- data of the applicant’s representative, if the claim is filed through a proxy (with a copy of the power of attorney attached)
- details of the contractor whose actions or omissions are subject to appeal;
- a brief description of the situation that allowed the applicant to go to court, that is, a description of the actions of the representative of the FSSP;
- details of the executive document;
- references to articles of legislation whose requirements have been violated;
- if complaints or appeals were previously submitted, then information about it, which decisions were made;
- requirements put forward;
- list of attached documents;
- date, signature and its decoding.
It should be remembered that the obligation to prove the legitimacy of their behavior on the facts set forth in the administrative lawsuit against the bailiff is solely the responsibility of the defendant.
Attachments to the application
As prescribed by Art. 220 and paragraph 1 of article 126 CAS, a copy of the claim itself, in the number of participants in the initiated process, must be attached to the application. You can send copies yourself, and to the claim to the court attach supporting documents to send letters to the parties.
If the plaintiff is represented by an authorized person, but not a lawyer, then, in addition to a copy of the power of attorney, it is necessary to attach a document confirming the presence of a legal entity. Cooperation between the plaintiff and the lawyer can be carried out not only on the basis of a power of attorney, but also an agreement, a copy of which is attached to the application.
A copy of the writ of execution and documents that confirm the circumstances set forth in the text of the application must be attached to the administrative claim against the bailiff.
If these documents are not attached to the lawsuit or if inconsistencies between the essence of the application and the applications are revealed, the lawsuit will be left without movement.
Review Procedure
How is an administrative lawsuit against a bailiff considered? As mentioned earlier, the court must consider the application within 10 days, only in difficult cases, this period can be extended to 30 days.
All persons who are involved in the proceedings are invited to the hearing. The absence of one of the parties is not a reason to postpone the meeting to another date.
The motivation part must be announced no later than 5 days from the date of the decision.
Within one month, a party that is not satisfied with a court decision has the right to appeal.
After the entry into force of the decision, the bailiff is obliged to fulfill it within 1 month, about which to notify the winning party.
The state duty for an administrative claim against the bailiff is not provided.
Submission methods
A lawsuit can be submitted in the traditional way - through the office. It is possible to apply via the Internet by filling out a special form on the court’s website. However, the applicant will first have to receive an enhanced digital signature in order to assure his appeal.
The statement of claim can be sent by mail, having issued it with a valuable letter, with a notification.
Features
How to draw up an administrative lawsuit against a bailiff? In order for a statement of appeal of actions of an official not to be left without movement, a decision, decision or other document that is disputed must be indicated. If we are talking about the inaction of the performer, the applicant must clearly describe what they appeared in, what decisions the bailiff did not take, or what time frames were violated, that is, what the inaction showed.
If the decision is appealed, it should always be remembered that the plaintiff has 10 days to go to court, which begin on the next day from the date the disputed document is issued. If, for legitimate reasons, it was not possible to meet this deadline, then, together with the statement of claim, a petition must be filed with the court to restore the missed deadline. The lawsuit against the bailiff is filed with the district (city) court at the place of work of the performer.
Claims against bailiffs are dealt with in the standard procedure provided for by CAS. The judge has 10 days to consider the application. The bailiff is obliged to prove the legality of his actions. The judge is obliged to check the disputed actions for the legality of the requirements and completeness of compliance with applicable law.
If the claim of the bailiff is satisfied, the judge will oblige the committed violations to be eliminated. The contractor is obliged to notify the plaintiff about the measures taken by the court within 30 days from the date the decision comes into force.
The administrative process has an interesting peculiarity: when considering a claim, the defendant does not have the right to file a counterclaim, so the applicants do not need to fear that in court they will encounter a counterclaim.