Asset seizure is a process in which a person’s property is transferred under the custody of the state or its authorized representative by a decision of the court, the enforcement service, or a notary.
We draw the readers’ attention to the fact that human rights regarding the protection of their rights and freedoms are safeguarded by the Constitution of Ukraine, the Human Rights Convention, the Civil Code, and other regulatory legal acts.
Thus, the provisions of Article 41 of the Constitution of Ukraine and Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms establish the principle of inviolability of private property rights, which means the right of a person to freely use their property and secures the owner’s right to own, use, and dispose of their property at their discretion, to enter into any transactions regarding their property in accordance with the law, voluntarily and independently of the will of others.
In accordance with Article 321 of the Civil Code of Ukraine (hereinafter – CCU), the right of ownership is inviolable, and no one may be unlawfully deprived of this right or restricted in its exercise.
Article 391 of the CCU provides the property owner with the right to demand the removal of obstacles to the exercise of their right to use and dispose of their property.
According to Part 1 of Article 317 of the CCU, the owner is entitled to possession, use, and disposal of their property.
According to Article 319 of the CCU, the owner possesses, uses, and disposes of their property at their discretion.
According to Article 16 of the CCU, every person has the right to apply to the court for the protection of their personal non-property or property right and interest. One of the means of protection is the restoration of the state that existed before the violation.
First of all, if you find out that your rights have been violated and your property has been seized, you should contact the authority that imposed the seizure to establish the grounds for the seizure and verify its legality or consult lawyers in Kyiv for a professional clarification of the case circumstances.
Procedure for lifting a seizure in enforcement proceedings:
Seizure may be imposed by a state (private) enforcement officer within the framework of enforcement proceedings based on a court decision on debt collection or based on a court order on the application of measures to secure a claim by prohibiting the alienation of property.
The seizure of property is applied to ensure the actual enforcement of a court decision, which consists of restricting the debtor’s right to possess, use, or dispose of their property.
The seizure of the debtor’s property may be lifted by the enforcement officer who imposed it, or this can be done based on a court decision.
The Law of Ukraine “On Enforcement Proceedings” (Article 59) defines the list of grounds for lifting a seizure from property by the enforcement officer.
In particular, but not exclusively, this may include:
- The enforcement officer receiving documentary confirmation that the debtor’s account has a special usage regime and/or that the collection of funds from such an account is prohibited by law.
- Funds collected from the debtor (including from the sale of the debtor’s property) being received in the account of the state enforcement service/private enforcement officer in an amount sufficient to satisfy the claims of all creditors, enforcement fees, enforcement proceeding costs, and fines imposed on the debtor.
- The enforcement officer receiving documents confirming full payment for the purchased property in electronic auctions.
- The presence of a written expert opinion from an evaluation entity – an economic entity – regarding the impossibility or impracticality of selling the seized property of the debtor due to significant wear and tear or damage.
- The enforcement officer receiving a court decision canceling measures to secure the claim, etc.
If documents confirming one of the grounds for lifting the property seizure are received, the enforcement officer is obliged to issue a ruling on lifting the seizure no later than the next working day. In addition, the enforcement officer must send this ruling on the same day to the authority (institution) to which the ruling on the seizure of the debtor’s property was sent for enforcement.
Procedure for lifting a seizure through the courts
Part five of Article 59 of the Law of Ukraine “On Enforcement Proceedings” states that in all other cases, the seizure may be lifted by a court decision.
This means that if you were denied the lifting of the property seizure on the grounds that the case (enforcement proceedings) is closed or that the materials of the enforcement proceedings were destroyed after the expiration of their storage period, then you need to apply to the court with a lawsuit to lift such a seizure.
In this case, it is advisable to obtain an information certificate from the State Register of Property Rights regarding the encumbered property to understand who the creditor in such enforcement proceedings is, on what basis the seizure was imposed, and by whom.
In such a case, the plaintiff in the lawsuit to lift the property seizure will be the owner of the property (debtor) in the enforcement proceedings, and the defendant will be the relevant body of the state enforcement service/private enforcement officer who imposed the seizure, as well as the creditor (if known).
The Supreme Court, as part of the Civil Cassation Court (Case No. 2/0301/806/11), in its ruling of July 13, 2022, noted that the application of property seizure as a restrictive measure should not lead to a violation of Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, which indicates the need for its application only in cases and on grounds defined by law.
A similar legal position has been expressed in cases No. 756/14453/23 and No. 756/15662/23, the decisions on which have entered into legal force. We believe that similar provisions should be applied in this case as well.
According to Article 1 of the First Protocol to the Convention, every natural or legal person has the right to peacefully enjoy their possessions. No one may be deprived of their property except in the public interest and under conditions provided for by law and the general principles of international law.
These provisions establish the inviolability of property rights (including private ownership) and the impossibility of depriving or restricting a person in the exercise of their property rights.
Currently, there are a large number of lawsuits regarding the lifting of seizures on property and/or funds, with a very high rate of successful outcomes.
For more detailed legal advice on lifting a seizure, we recommend consulting a lawyer. The lawyers of the “First Legal” law firm in Ukraine will assist you! Fill out the application form on the website right now or call one of the numbers: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.