Complaint about the inaction of bailiffs

In May 2021, the Accounts Chamber conducted an audit and analysis of the work of the FSSP. Its results, published by the Kommersant newspaper, paint a sad picture. Here are just a few sketches.

The mechanism of interaction between the FSSP and the State Traffic Safety Inspectorate and the Federal Tax Service has not been established. As a result, a third of the documents do not reach the executive service.
The workload on bailiffs is 18.3 times higher than the established norm. On average, there are 406 cases per contractor, while based on the standards regulated by the Ministry of Labor No. 60 of August 15, 2002, there should be no more than 22.

In the current situation, the claimant’s chances of satisfying his demands will most likely be close to zero.
Single mothers will not receive alimony, creditors owe debts. But even with such a deplorable state of the executive system, it is possible to achieve the desired result, lawyers say.

To do this, the interested person needs to be active, study the case materials and complain if the bailiff’s inaction becomes obvious.

Any party to enforcement proceedings whose rights have been violated as a result of the dishonest work of the bailiff can complain about inaction (Article 121, paragraph 1, Federal Law 229). That is, not only the claimant, but also the debtor has the right to file a claim. For example, when the debt is repaid, but the bailiff has not lifted interim or restrictive measures (seizure of transport, card, travel ban).

General rules and features of filing a complaint against a bailiff

Complaints sent to the FSSP authorities, the court and the prosecutor's office are similar in structure and must contain:

details of the addressee and applicant;
information about the bailiff (position, full name), resolution, enforcement proceedings;
description of the situation indicating measures and actions that should, but were not taken by the official;
the rules of law that the bailiff violated;
requirement.

The wording of the requirement will be different and depend on the addressee.

In an appeal to a higher official of the FSSP, the applicant demands that the official perform specific actions (impose an arrest, withhold money from the debtor’s salary, etc.).
In a complaint sent to the prosecutor's office, it is necessary to check the fact of the bailiff's lack of work, restore violated rights and punish the culprit.
Go to court to declare the official’s inaction illegal.

It is advisable to attach to the complaint documents confirming the legitimacy of the applicant’s demands. Otherwise, the review period may be extended.

When filing a complaint, you should be guided by three criteria:

The document must be drawn up only in writing (124 Federal Law 229), but filling out a printed form by hand is allowed. Corrections, illegible handwriting and blots are undesirable and may lead to refusal to consider the complaint.
The claim must be signed by the claimant or representative. In this case, a power of attorney confirming authority is attached to the document.
Minimum emotions, maximum specifics. The style of presentation is official, businesslike. Obscene language and personal insults are prohibited.

A sample complaint is usually provided by the department at the place of application. You can find it on the official website of the FSSP and the prosecutor's office.

Examples of complaints:
To the prosecutor
Senior bailiff

Contacting the SSP

According to Art. 123 Federal Law 229 filing a complaint with a superior official must occur in the order of subordination. That is, the claim should first be submitted to the senior bailiff who supervises the work of the offending employee. If there is no result, the head of the regional branch of the SSP, then the chief bailiff of the Russian Federation.

Experienced lawyers advise complaining, bypassing the immediate superiors of the bailiff, and immediately turning to the head of the regional body of the SSP. The complaint will be redirected downwards, but its consideration will be taken into account, which will increase the likelihood of obtaining the desired result.

Deadlines

A complaint must be filed with a senior official of the SSP no later than 10 days from the moment the applicant learned or could have learned about the bailiff’s inaction (122 Federal Law 229). For example, when, after studying the materials of the enforcement proceedings, it becomes clear that the executor did nothing in the case.

The law allocates 10 days from the date of receipt of the complaint to consider the appeal and make a decision on it (126 clause 1 of Federal Law 229). A copy of the verdict must be sent to the applicant within three days.

The bailiff is given 10 days to comply with the decision (127 clause 4 of Federal Law 229).

The period for studying the claim may be delayed, but not more than 10 days, if the sender does not provide documents confirming the legitimacy of the claims and the person considering the complaint considers it necessary to request them (124 clause 3 of Federal Law 229).

If the court accepts for consideration an application recognizing the bailiff’s inaction (126 clause 2 of Federal Law 229), consideration of the complaint to the SSP will be suspended.

The appeal will not be processed and will be returned within three days if:

the time for filing has expired, a petition for extension has not been filed or has been denied;
there is no signature of the applicant, representative, or power of attorney;
the claim is typed and not handwritten;
the text contains rude and offensive language;
the addressee's details are incorrectly specified;
The court has already made a decision on a similar appeal.

Reasons for filing a complaint

In practice, the activities of some bailiffs are carried out contrary to domestic legislation, are immoral in nature and significantly violate the interests of citizens. The most effective form of challenging such actions is a properly drafted complaint. However, in order for the authorized person (body) to take the complaint into account, the reasons for its submission must be clearly argued. These include:

For illegal actions and inactions

Within the framework of the law, the bailiff is given approximately two months to clarify information about the defendants’ income and execute the court decision, but in practice these deadlines are often violated. So often, bailiffs do not notify debtors about the possibility of voluntary repayment of the debt and automatically block the same salary cards with the subsequent write-off of all funds. Meanwhile, Article 99 of Federal Law No. 229 states that the bailiff can only seize from 50% to 70% of the monthly income, given that the debtor also needs to live on something.

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Also very common violations of bailiffs are:

violation of deadlines for registration of received writs of execution;
initiation of proceedings for which obligations were fulfilled voluntarily;
unjustified refusal to initiate enforcement proceedings;
failure to take measures to identify property and establish sources of income of debtors;
return of decisions without execution and documentation of actions taken;
violation of deadlines for the execution of a decision that has already been made, that is, deliberate red tape;
illegal actions during the seizure of property;
incorrect calculation when assessing property, the value of which does not correspond to market prices;
direct transfer of the debtor’s property without appraisal and organization of auctions with an initially reduced value.

For alimony

Collection of arrears of child support is practically a priority, given that children should not suffer from the insolvency of their parents.
That is why Article 99 of Federal Law No. 229 classifies this type of debt as an exception, allowing you to retain all funds up to 70%.

However, the same unscrupulous dads intentionally hide their main place of work, which the bailiffs are in no hurry to establish through the same mailing of requests, as a result of which mothers are already involved in this process.

Another expected violation is ignoring the indexation of awarded amounts in the manner prescribed by Article 117 of the RF IC.

So, within the framework of this article, it is the bailiff who is obliged to recalculate the amount of alimony assigned in a fixed sum of money, in proportion to the subsistence level, which, by the way, changes several times a year.

About failure to notify the debtor

By virtue of Article 30 of Federal Law No. 229, when initiating enforcement proceedings, the debtor must be notified of the timing of debt repayment and the possibility of voluntary transfer of part of the property. However, bailiffs often ignore this rule and immediately apply rather harsh measures to retain property without written notice or delivery of a copy of the decision.

If they don't answer the phone

As a rule, the notice to the plaintiff and defendant about the initiation of enforcement proceedings indicates the telephone number of the bailiff, who is responsible for the collection.

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However, as practice shows, it is almost impossible to contact an FSSP employee using the contacts provided, since no one picks up the phone, and this has been going on for a long time.

Meanwhile, bailiffs are required to maintain contact with both parties to the process. Ignoring communication with them is already a violation of the law.

For rudeness

Of course, the FSSP service is very busy with an endless number of cases being processed. However, fatigue or a simple lack of free time does not give bailiffs the right to talk to visitors and petitioners in an unacceptable tone, given that there is an ethics of behavior for employees representing government agencies.

That is why the same rudeness of bailiffs can also be complained about along with other violations committed by them.

How to file a complaint

There are four ways to file a complaint with the FSSP:

Personally, by making an appointment with the boss. According to the BSC employees themselves, this option most often gives the desired result. Especially if you prepare thoroughly for the meeting, present strong evidence, and present your arguments clearly and clearly.
Through the offending bailiff, his colleague or office. In this case, the complaint, indicating the attached documents, is drawn up in duplicate. One remains in the SSP, the second with a mark of the incoming number, date, signature of the receiving person from the applicant.
By registered mail with notification and a mandatory inventory-attachment listing the attached package of documents.
On the official website of the SSP or the State Services portal. Despite the apparent simplicity and convenience, it is necessary to take into account that the application must be confirmed using the Unified Identification and Authentication System (USIA) or an electronic signature key certificate. It will take time to get the first one, and money to get the second one.

Advantages and disadvantages

pros

Short review period.

Minuses

As practice shows, appealing to a higher official is successful only in half of the cases and largely depends on the local and regional leadership of the executive branch.

Contacting the prosecutor's office

The Prosecutor's Office is the supervisory authority of the FSSP and by virtue of Art. 1 Federal Law 2202-1 is authorized to consider complaints against employees of this service.

Deadlines

According to clause 5.1. instructions No. 45 (approved by order of the Prosecutor General of the Russian Federation dated January 30, 2013), the prosecutor's office is obliged to respond to the claim no later than 30 days from the date of receipt.

If there is a need to additionally request and examine materials, the period may be extended by another 30 days. In this case, the applicant will be notified of an extension of the inspection.

Submission methods

You can file a complaint with the prosecutor's office:

In person, at a reception with the prosecutor. Address, telephone numbers and work schedule can be found on the website of the prosecutor's office of the desired region https://procrf.ru/article/5.html
Through the office of the department, leaving a second copy with a note about acceptance of the document.
By mail.
Electronically, on the website of the Prosecutor General’s Office in the “Internet reception” section, by selecting the prosecutor’s office of the desired region and filling out the form. A complaint submitted in this manner is official and properly recorded. The author of the application will receive a response about the results of the review either by email or by post at his place of residence. This option is the simplest and most convenient.

Cons and pros

Minus . Long waiting time for a response.

Plus . Contacting a supervisory authority is almost always effective.

Having identified the bailiff’s inaction, the department employee:

will order the necessary actions to be taken;
will punish an unscrupulous official;
will inform the applicant about the results of the inspection and the measures taken.

How can I challenge it in court?

Individuals file a complaint with a court of general jurisdiction (128 clause 3 of Federal Law 229) and are exempt from paying state fees (333.36 Tax Code). Legal - apply to the arbitration court.

Consideration of the application in court takes no more than 10 days. Both parties have the right to appeal the court decision to a higher authority within one month from the date the document enters into force.

Advantages and disadvantages

Minuses

The court recognizes the bailiff’s inaction and orders to correct the violations, but will not give clear, specific instructions on how, within what time frame they should be eliminated, and will not punish the culprit.

pros

The review will take only 10 days.
Only in court can a person who has suffered damage from the inaction of an official be able to demand compensation for moral and material damage (Article 1069 of the Civil Code). The money is paid from the municipal or regional treasury, and then, by way of recourse, is recovered from the negligent performer.

However, one should take into account the fact that the percentage of positive decisions on the recovery of losses from bailiffs in 2021 was only 12% (Kommersant newspaper, March 2021). In a number of cases, the reason was the applicant’s low legal literacy. Therefore, when compensating for damages in court, it is advisable to seek help from a competent lawyer. The funds spent on his services, in the event of a positive outcome, will be withheld from the defendant.

Additional questions

When they can refuse

Within the framework of the law, bailiffs are obliged to accept all complaints for consideration, but some of them are still not accepted on completely legal grounds.
An application for inaction or improper actions of a bailiff may be refused for the following reasons:

appealing the assessment result if the procedure was carried out by the appraiser in accordance with the norms of Article 85 of Federal Law No. 229;
failure to comply with the rules regarding the form and content of the complaint;
omission of deadlines, which are indicated within 10 days from the date of the decision or from the date when the fact of violation of the rights of the bearer became known in accordance with the norms of Article 122 of Federal Law No. 229;
making a court decision on a similar complaint.

When the bailiff is wrong

When the IRS allows inaction, this fact in itself is not unconditional evidence of his violation of the law. Inaction is considered contrary to the law when he could have taken the necessary steps, but did not take them, as a result of which the business suffered.

An example of the illegality of executive inaction is a situation where the Investigative Inspectorate established that the debtor does not have money, but did not take the actions required to find other property of the debtor with which he could pay off the existing debt:

did not send a request to the Federal Tax Service;
did not contact Rosreestr for information about real estate.

Reasons not considered as justification for the inaction of the IPS:

Lack of the required number of employees on staff.
Replacement of SPI due to it:
illnesses,
going on vacation,
for advanced training courses,
on a business trip.
The fact of suspension of powers or their termination.

The SPI must provide evidence that he had reasons for inaction that can be considered valid.

How does the review work?

The process of considering a complaint against the action or inaction of a bailiff depends on the institution to which the specified document is submitted.

So, if a complaint is received by a senior bailiff, he has the right to request materials on the claim proceedings from his subordinate, check all the measures taken, and also oblige him to take other measures.

If violations are detected, the bailiff will be subject to disciplinary action in the form of the same reprimand.

If the complaint is sent to the prosecutor's office, the process is as follows:

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the prosecutor will request materials from the claim proceedings;
checks them in accordance with the data reflected in the complaint;
sends an order to eliminate violations within a certain period, after which the bailiff is obliged to report.

Naturally, punishment in this situation is also provided, again at the disciplinary level.

And in court, the complaint is considered on a similar principle, which implies the demand for certain documents, recognition of the actions of the bailiff as illegal, with the subsequent adoption of a decision to eliminate the identified deficiencies.

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In this case, legal costs are collected from the FSSP, which in turn collects them from the offending bailiff.

Repeat if you haven't responded

As a rule, the prosecutor's office and the court do not leave received complaints without consideration and make decisions within the time limits established by law. But the chief of the bailiffs can, in order to respect the interests of his subordinates, ignore the complaint, or rather, write off in a formal form without any significant changes in the process, given that the likelihood of disciplinary liability does not please him.

That is why, upon receipt of an unsubscribe, it is advisable to send the complaint again, but to a higher management of the FSSP with an attachment and the first copy of the letter and the response to it, as well as duplicate the specified package of documents already addressed to the prosecutor’s office.

Is it possible and how to withdraw

Sometimes a situation arises when an application for a bailiff was filed rashly or controversial issues were resolved peacefully.
Then there is a problem with withdrawing the complaint. It is not possible to stop the ongoing proceedings with a telephone call. Since the application was submitted in writing, it will have to be canceled in the same way. There are certain requirements for the preparation of such a document. You will need:

attaching to it the identity card of the applicant or his authorized representative;
indication of the reasons for withdrawing the complaint. As a rule, these are certain measures taken by the bailiff that have not previously been implemented.

Is a state fee required?

Citizens of the Russian Federation are not required to additionally bear material costs in the event of a violation of their rights due to the inaction of bailiffs, and therefore, Article 333.36 of the Tax Code of the Russian Federation, complainants are exempt from paying state fees when considering such cases by courts of all jurisdictions.

How can you challenge the inaction of the SPI in court?

According to Art. 128 the inaction of the IPI can be challenged in:

Arbitration Court;
Court of general jurisdiction.

A statement of claim is submitted to arbitration when it comes to inaction regarding the execution of:

Document issued by arbitration.
Decisions of the tax service on the collection of funds from bank accounts that were not withheld from the debtor due to lack of money.
Acts of courts (other government bodies) concerning violations of the provisions of the Code of Administrative Offenses of the Russian Federation.
SPI resolutions on the collection of funds from debtors - legal entities or individual entrepreneurs, when this is related to the commercial activities of these persons.
In other cases, which can be found out by referring to the provisions of Art. 198 Arbitration Procedure Code of the Russian Federation.

In other situations not indicated in the list, an application for inaction must be submitted to the courts of general jurisdiction.

Courts consider applications within 10 days. And you can contact them no later than 3 months. from the date of receipt of data on the inactivity of the IPI.

When the time for filing an appeal to the court has expired, you can submit a request for its restoration if there are good reasons.

Bottom line

You need to understand that each case is individual.

Sometimes, in order to push the collection mechanism, it is enough to simply be interested in the progress of the case and cooperate with the bailiff. For example, report about property and sources of income that the debtor is hiding. Seeing personal interest and a desire to help, the performer will most likely do his job more conscientiously.

But sometimes a complaint is the only lever of influence on a civil servant. As practice shows, for it to be most effective you need:

Use an integrated approach, complaining simultaneously to the prosecutor’s office and the higher authorities of the SSP.
Write the complaint again if the departments get off with formal replies.
When going to court, use the services of a lawyer.

And be sure to persevere, because as Edison said: “The biggest mistake is that we give up quickly. Sometimes, to get what you want, you just have to try one more time.”

Inaction of the bailiff: advice and recommendations from lawyers

Before filing a complaint, lawyers recommend going through two stages:

Collect sufficient evidence of the unlawfulness of the actions of the bailiff. You also need to make sure that the information received is true and subject to appeal.
Correctly draw up a complaint, which will indicate all the necessary details.

Experts also note that a complaint can be filed through a representative whose powers are certified by a power of attorney, constituent documents, etc.

The complaint must be written in a formal business style, but no special legal terminology is required. This document should not contain unnecessary emotional expressions and words, personal insults and aggressiveness. The text must be written in a concise, clear, concise form. Collective complaints can guarantee a successful result, since they reflect not the subjective opinion of one person, but the dissatisfaction of an entire group. This increases their truthfulness and objectivity.

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A complaint is a democratic way to resolve a conflict situation. If a bailiff performs his official duties improperly, citizens must respond to such cases by contacting the relevant authorities with claims and complaints. This helps to increase the efficiency of executive bodies in carrying out their duties and creates order and discipline in the field of enforcement proceedings.