The Law on Amendments and Supplements to the Civil Procedure Code, adopted by the National Assembly on 25.01.2023, introduced the electronic form as a principle position in the initiation and conduct of writ of execution proceedings. The provisions governing the new rules in Chapter Thirty-Six "Issuance of a writ of execution" and Chapter Thirty-Seven "Writ of writ of execution" of the Civil Procedure Code shall enter into force on 01.07.2024.
The writ of execution procedure is among the civil proceedings that are most often filed before the district courts in the country. From the statistical data of the Supreme Judicial Council (SJC), it is clear that in 2020, the filed writ of execution cases under Art. 410 and Art. 417 of the Civil Procedure Code totaled 105,699, which constitutes 57% of all civil cases filed before these courts. There is a varying degree of workload of the individual courts in the country, which inevitably affects the speed of pronouncing judicial acts depending on which district court the case was filed before. For example, in a district court located in a small settlement, the enforcement orders are issued within the statutory three-day period, in a district court in a regional city - in about a week, and in Sofia this period may be several times longer.
In order to avoid the unfavorable treatment of citizens and businesses in large cities, where the involvement of the courts is significantly higher, the adopted legislative amendments to the Civil Procedure Code provide for the electronicization of warrant proceedings and centralized distribution of warrant cases among district judges throughout the country.
News in the legal framework – realization and problems
1. The new provision of Art. 409a of the Civil Procedure Code stipulates that all procedural actions in the warrant proceedings are carried out in electronic form and all court acts in the proceedings, including an enforcement order and a writ of execution, shall be issued in electronic form, unless otherwise provided.
The legal changes provide for applications for issuing an enforcement order and the annexes thereto be submitted electronically through an electronic form available on the Single e-Justice Portal (SEP). It should be noted here that when the application is submitted electronically, all subsequent procedural actions of the applicant are carried out only in electronic form, with the exception of actions to appeal the acts under Chapter 37 of the Civil Procedure Code and in proceedings under Articles 422 – 424 of the Civil Procedure Code.
A practical problem that could arise is related to the fact that EPEP, like any other electronic system, will encounter difficulties in its normal functioning (for example, during maintenance, technical malfunctions or other reasons). In such cases, in view of the imperative application of the electronic form to the persons provided for in Art. 410, para. 5 of the Civil Procedure Code, their right to assert their claims under the order procedure will be limited.
2. It is important to note that according to the new provision of Art. 410, para. 5 of the Civil Procedure Code a certain group of subjects will be able to submit applications for the issuance of an enforcement order only in electronic form. Among them are credit and financial institutions, including those collecting receivables from consumers; insurance and reinsurance companies, traders supplying energy, gas or providing postal, electronic communications or water supply and sewage services; notaries and private bailiffs; state institutions and municipalities.
2.1. It is important to point out that an exception to the above rule is established, which concerns traders and persons represented by a lawyer, i.e. these applicants have the right to choose one of the two options for submitting the application – in writing or electronically. However, in this part of the changes, the legislator has not formulated very precisely which traders and persons fall into the deviation – whether all entities, including the above-mentioned ones, when represented by a lawyer or only traders and persons, outside the above-mentioned ones. In this form, the legal text creates conditions for the emergence of contradictory interpretations, which is the basis for its subsequent revision.
3. The amendment of the rules governing the jurisdiction of applications for the issuance of an enforcement order under Art. 410 and Art. 417 of the Code of Civil Procedure is another fundamental innovation that underlies the legislative changes in the enforcement proceedings. The newly created para. 6 of Art. 410 of the Code of Civil Procedure provides applicants, other than those under para. 5 of art. 410 of the Civil Procedure Code, to submit an application for issuing an enforcement order in writing on paper, to any district court, with the exception of applications for issuing an enforcement order under Art. 417, para. 1, items 3, 6 and 10 of the Civil Procedure Code. Thus, if the applicant files an application for issuing an enforcement order in the Sofia District Court, then the case is distributed centrally on the principle of random selection among all district judges in the country and it may end up being considered by a district court in another locality – for example, in the town of Haskovo or the town of Montana. It is noteworthy that when regulating the rules of jurisdiction, the legislator makes a terminological distinction between the concepts of “submission” and “consideration”. In Art. 410 of the Civil Procedure Code, it is mentioned submission of the application, and in Art. 411 of the Civil Procedure Code, where local jurisdiction is actually provided for – for consideration. The legal considerations for this technical nuance are dictated precisely by the philosophy of the newly introduced concept of centralized distribution on the principle of random selection among all district judges in the country who are assigned to hear such types of cases.
3.1. Through the changes in local jurisdiction, it is expected to be achieved even distribution of injunction cases between courts according to their workload. Exception of the above rule is provided for in applications for the issuance of an enforcement order based on a document under Art. 417, para. 1, items 3, 6 and 10 of the Civil Procedure Code, i.e. when the claim is based on a notarial deed, agreement or other contract, with notarized signatures, pledge agreements, mortgage deeds, promissory notes, bills of exchange or equivalent documents. In these cases, applications for issuing an enforcement order will be submitted to the court at the permanent or current address or registered office of the applicant, and in the absence of a current address - at his permanent address. The aim is for the court to be able to familiarize itself with the original of the document - the basis for issuing the order. Cases initiated on applications under Art. 417, para. 1, items 3, 6 and 10 of the Code of Civil Procedure, are distributed centrally on the principle of random selection among the judges according to the rules of local jurisdiction under Art. 411, para. 1, sentence one of the Code of Civil Procedure. Interpreting the provision, it becomes clear that when we are faced with the hypothesis of issuing an enforcement order under Art. 417, para. 1, items 3, 6 and 10 of the Code of Civil Procedure, the distribution will again be centralized, but the case will be heard by a district court determined under the rules of local jurisdiction established in Art. 411, para. 1 of the Code of Civil Procedure.
3.2. In connection with the permission described above, it can be assumed that when submitting an application under Art. 417, para. 1, items 3, 6 and 10 of the Code of Civil Procedure, the relevant court officer, entering the data into the electronic form, based on the applicant's address specified in the application, will have to note that one of the three hypotheses is involved. This circumstance will probably be taken into account when carrying out the centralized distribution, with a view to applying the differentiated order.
4. The newly introduced jurisdiction of warrant cases applies only to warrant proceedings, and with regard to the claims initiated in connection with them under Article 422 of the Civil Procedure Code, the jurisdiction remains unchanged.
5. As is known, in the event of an objection filed by the debtor under Art. 414 of the Civil Procedure Code against the enforcement order, the court instructs the applicant to file a claim for his claim. In the previous version of Para. 5 of Art. 415 of the Civil Procedure Code, the court required the applicant to submit evidence that he filed a claim under Art. 422 of the Civil Procedure Code within the time limit, in order to avoid the invalidation of the enforcement order and the writ of execution. Considering the possibilities that the introduced electronic system could provide, we must note that the amended provision of Art. 415, Para. 5 of the Civil Procedure Code already not foreseen obligation to present evidence to the court of injunction for a declaratory action. In this case, the court must officially to be notified of the filed claim.
6. At present, in the event of a claim for the establishment of the claim under Art. 422 of the Civil Procedure Code, the enforcement order enters into force after the entry into force of the court decision for the establishment of the claim, as the writ of execution is the one that issues the writ of execution after the case is returned by the court of claim. In view of the electronic conduct of the writ of execution proceedings, the new para. 2 of Art. 416 of the Civil Procedure Code adopted by the law provides that, after the conclusion of the claim proceedings, the issuance of the writ of execution shall be carried out by the court of claim.
7. In any case, the legislative amendments will also have an impact on the work of appellate judges, since in private appeals in warrant proceedings, they will not receive the warrant file on paper, but will have access to it in the Unified Court Information System (UCIS).
8. The new provision of Art. 414, para. 3 grants the debtor freedom to assess whether to file the objection in paper form (by post or at the registry of the relevant court) or electronically via a form in the EPEP. In order to facilitate the access of the debtor as a party to the order proceedings, the provision provides for the possibility of filing the objection in writing on paper in any district court.
9. Particular attention should also be paid to amendments to the provisions concerning the writ of execution. During the voting on the bill amending and supplementing the Civil Procedure Code, the rule for issuing an electronic writ of execution not only on the basis of enforcement orders, but also on all enforcement grounds specified in Art. 404 of the Civil Procedure Code.
Currently, in order to initiate an enforcement case, it is necessary to present an original writ of execution to the relevant bailiff. The legislative changes provide that the bailiff will proceed with enforcement upon request of the interested party, which indicates the case number and the writ of execution issued in electronic form, after ex officio obtaining access to it through EPEP or another act subject to execution is applied.
9.1. The amended provision of Art. 408, para. 1 of the Code of Civil Procedure states, that the writ of execution is issued in electronic form and is signed by a judge of the relevant court. When the issuance of a writ of execution in electronic form is not possible, a writ of execution shall be issued in one copy on paper. After the electronic signing of the writ of execution, according to Art. 46 of Ordinance No. 5 of 1.06.2017 on the organization and procedure for keeping, storing and accessing electronic cases and the manner of storing evidence and means of proof in cases, as well as the internal circulation and storage of other information processed by the judicial administration, he is register in the court's information system by creating a unique registration number. Also, the unique registration number and date generated during registration, as well as text data about the judge who signed it, will be reflected on the signed writ of execution by electronic printing. It is this registration number of the writ of execution that will be contained in the creditor's application for the institution of an enforcement case to the bailiff.
9.2. An important point related to the writ of execution that deserves interest is the creation of an opportunity for recording payments under the writ of execution and access of the bailiff to him through the court system. It is planned to create electronic batch, which will be part of the electronic file in the EISS. The electronic file will contain the writ of execution, the act on the basis of which it was issued, the party in whose favor it was issued and the person against whom the writ of execution was issued. Art. 434, para. 3 of the Civil Procedure Code provides for the main circumstances that should be marked on the electronic account – the establishment, referral, termination, completion of the enforcement case, accession and the result of the enforcement, including the amounts paid to the creditor. It should be noted that the electronic account as part of the electronic case does not replace or duplicate the enforcement case.
9.3. The norm of Art. 426, para. 5, clause 2 of the Code of Civil Procedure stipulates that until the marking is deleted or it is reflected that the marked enforcement case has been completed or terminated, a subsequent enforcement case based on the same writ of execution cannot be initiated. This ensures that in the period between the initiation of an enforcement case with a given bailiff and the marking that the enforcement case has been terminated or completed, for example due to repayment of the debt, another bailiff could not obtain such access.
Upcoming steps
In order to implement the regulatory amendments, specific actions are to be taken before they enter into force. § 20 of the PZR provides that in 6-month period from promulgation of the law in the State Gazette, the Supreme Judicial Council and the Minister of Justice should bring the adopted and issued by them subordinate legislation into line with the new provisions. The SJC provides for a legal delegation to the Judicial College of the Supreme Judicial Council to prepare Rules for the distribution of cases initiated upon submitted applications for issuing enforcement orders among the judges who examine such cases.
The main subordinate legislation that will be subject to amendment and supplementation are Ordinance No. 5 of 1.06.2017 on the organization and procedure for keeping, storing and accessing electronic cases and the manner of storing evidence and means of proof in cases, as well as the internal turnover and storage of other information processed by the judicial administration, adopted by the Plenum of the Supreme Judicial Council, Ordinance No. 6 of 03.08.2017 on performing procedural actions and certifying statements in electronic form and the Rules for the administration in the courts.
The Minister of Justice is about to issue an ordinance to approve new samples of an enforcement order, an application for issuing an enforcement order and other papers in connection with the enforcement proceedings.
In summary, it can be concluded that the adopted amendments deserve a positive assessment, since the successful implementation of the provisions will result in optimization and rationalization of the regulatory framework for the warrant procedure. Due to the formal nature of this type of procedure, electronicization would to the greatest extent allow for efficiency and speed, as well as unification of the time for considering applications for issuing enforcement orders throughout the country. The possibility of submitting applications, making inquiries, notifications and receiving court acts entirely online electronically are significant advantages that could facilitate access and make it easier for citizens and businesses to exercise their rights as parties to the injunction proceedings.
This author's article by attorney Vasil Vatev is published on the specialized legal website https://news.lex.bg