In this article, we would like to use concrete examples from the practice of law to show how what problems citizens face during the administrative process in cases involving non-enforcement of court decisions, i.e. in case of violation of the law on enforcement proceedings. The materials of this publication allow you to clearly demonstrate to online audiences that the administrative process can be derived, including from marriage and family relations. Moreover, as practice shows, even lawful, law-abiding human behavior cannot be a guarantor of administrative responsibility. And our task is to bring to the attention of the Internet audience that only timely qualified legal assistance from a lawyer will ensure the protection of violated rights and, as a result, will avoid the unjustified bringing of an innocent person to administrative responsibility.
Circumstances of the case:
The ruling of the court of the first instance approved an amicable agreement between the parties in the case, which determined the order of meetings between Father O. and his young son D. However, the settlement agreement, as well as the determination that approved it, did not stipulate one very significant nuance, which subsequently and became a stumbling block: the transfer of a son D. to his father O. on the days and hours specified in the settlement, is allowed only on condition that the child is healthy. After the court ruling came into force, O.’s application initiated enforcement proceedings, after which the transfer of the child from mother X to father O. began to occur in the presence and under the control of the bailiff.
On one of the days of the fall of 2019, a young D. gets sick. The mother immediately after visiting the doctor and receiving the relevant medical reports informs O. in advance that D. is ill, and therefore transferring the child to his father, and even more so with a subsequent trip to another city, is impossible. Also, mother X. notifies the bailiff and guardianship authorities about the impossibility of fulfilling the court ruling regarding the transfer on a certain day to the father of a young son in connection with the illness of the latter. In support of their arguments, the bailiff and guardianship representative are provided with copies of the relevant medical documents.
Despite the illness of the child, O. arrives on the appropriate day, in accordance with the established order of communication, and demands that the child be transferred to him for a trip to another city. The bailiff and the representative of the guardianship and trusteeship body were personally convinced that the child was really sick, and Father O was informed about this. Nevertheless, the latter continued to insist on the enforcement of the court decision, and after the categorical refusal of mother X. – began to insist on attracting her to administrative responsibility for intentional non-enforcement of the judgment, i.e. for refusing to transfer the child on days established by the court.
Due to the fact that Kh. Did not hand over his son to O.’s father, at the insistence of the latter, the bailiff compiled a protocol on administrative offense against Kh. Under Art. 24.10 Administrative Code (failure by the debtor to comply with a court order established by the court, obliging the debtor to take certain actions).
The defense sees the unfoundedness and illegality in the administrative protocol drawn up with respect to X.
The composition of the administrative offense, under Part. 3 Article. 24.10 of the Code of Administrative Offenses is characterized by a form of guilt in the form of direct intent, that is, the person realizes that he is not fulfilling the obligations imposed on him by a court decision (order of a bailiff) and wishes to act or inaction in this way.
In the situation under consideration, it is obvious that Kh. Did not have intent on non-compliance with the requirements of the bailiff contained in the order, and the non-performance was compulsory, related to circumstances independent of the will of X. – a child’s disease, which the person involved confirmed with a certificate from a healthcare institution. Moreover, H. informed both O. and the bailiff in advance, as well as the guardianship authorities about the impossibility of enforcing the court decision for a good reason – the child’s illness, and provided the representatives of these services with the opportunity to personally verify that the child is really sick.
Also, when considering the administrative protocol drawn up against X., the court’s attention was drawn to the fact that X’s actions were aimed at eliminating the danger that directly threatened the health of the child: X. tried to prevent the adverse consequences that could occur if executed court decisions, which did not provide for the father’s right to visit the child during illness.
The result of the consideration of the drawn up administrative protocol:
Having listened to H.’s explanations and the position voiced by the latter, the court came to the justified conclusion that there was no administrative offense in her actions under Part 3 of Art. 24.10 Administrative Code and decided the case of an administrative offense to terminate for the absence in the act of an administrative offense.
It should be noted that in similar circumstances of the case, in judicial practice there have been cases where the court took into account the provisions of Article 8.3 of the Code of Administrative Offenses that an individual who has committed an administrative offense may be exempted from administrative liability in the presence of one of the circumstances specified in paragraphs. 2, 3, 6 h. 1 tbsp. 7.2 Administrative Code.
So in the case of an administrative offense M., the latter, as a good reason for the impossibility of timely fulfillment of the obligation laid down in the executive document, indicated that he had been on a business trip in a different settlement at the appropriate date and time, which he informed the mother of the child in advance.
Thus, M.’s arguments about preventing him from the harmful consequences of his act are well-founded, giving reason to recognize the existence of a circumstance mitigating his responsibility, provided for in paragraph 2 of Part 1 of Art. 7.2 Administrative Code, which subsequently was considered by the court.
Based on the foregoing, the court concluded that there are reasons for the release of M. from administrative responsibility on the basis of Article. 8.3 of the Code of Administrative Offenses taking into account circumstances mitigating liability, in connection with which a decision was made to dismiss.
Partner lawyer of the Lawyer bureau “Tarasyuk, Ihnatiuk and Partners” – member of the Council of the Belarusian Republican Bar Association Ihnatiuk Dmitry Alexandrovich
Assistant Attorney of the Lawyer bureau «Tarasyuk, Ihnatiuk and Partners» Pisarik Anastasia Andreevna