The Challenges of Implementing the Enforcement System in the Republic of North Macedonia

Bukurije Etemi-Ademi¹, Emine Zendeli²

Abstract: Prior to the establishment of the private enforcement system in the Republic of North Macedonia, a number of problems related to the efficiency of the enforcement system, for which the basic courts were competent, were evident. In order to overcome the problems of this system with special emphasis on the duration and overload of courts with cases, the concept of private enforcement was introduced. This solution of the legislator brought with it a series of reactions in the public, especially when it comes to the complete privatization of the enforcement procedure that our country adopted. The attitude of the Ministry of Justice of the RNM regarding the functioning of the private enforcement system is quite positive, while on the other hand citizens express dissatisfaction with the private form of enforcement. Citizens are less likely to go to a court for a decision on legal remedies, as the court has jurisdiction to decide on them. Taking into consideration the abovementioned issue, this paper attempts to analyze the enforcement system in the RNM, by presenting the efforts of our country to create a legal framework for efficient enforcement procedures, as well as presenting the experiences and attitudes of the RNM citizens on their perceptions about the current enforcement system.

Keywords: Enforcement procedure; bailiff, law on enforcement; enforcement system

Introduction

The Enforcement Act (2016) of the RNM is the legal framework which regulates the form and manner in which the creditor can request the realization of his claim. In fact, the first legal framework in the RNM was introduced in 1997 with the adoption of the Enforcement Procedure Act (Official Gazette of the Republic of Macedonia No.53/1997). Despite the fact that the Enforcement Procedure Act (1997) was considered reformatory and offered a number of new solutions, the general assessment was that this law was not an effective instrument and did not meet the purpose for which it existed in the legal system. Consequently, in the field of enforcement, significant shortcomings were further identified, which led to the overload of enforcement courts with enforcement cases and consequently with excessive length of enforcement procedures. The biggest shortcomings were found in the great dependence of the procedure on the enforcement judges, who led, controlled and made decisions in court proceedings, while other officials had very limited powers (Чавдар & Чавдар, 2016, p. 2). Deficiencies were also identified in the sending of letters, the great possibility for objections and termination of the procedure by the debtor and third parties, the lack of public books and reliable records, insufficient information of creditors, transactions with the intention of defrauding the creditor, the privileged position of the debtor, the problems with the appraisals and the public sale of real estate, which resulted in the frequent interruption of the enforcement procedure (Zendeli & Nuhija, 2018, pp. 121-122) as well as the low technical, material and personnel readiness of the court sectors for enforcement. These and other shortcomings were highlighted as conclusions given in the process of the adoption of the new law.

In the National Strategy for Integration of the Republic of Macedonia in the European Union adopted by the Government of the Republic of North Macedonia for the period between 2004-2007, among the primary issues was the reform of the judiciary. The need to reform the judicial system stemmed from the fact that out of the total number of 1,163,319 cases, 175,337 were awaiting enforcement, while at the end of each year only 50% of cases were resolved (National strategy, 2004). According to the national strategy, the reform in the sphere of enforcement should focus on several points, among which was the decision that the enforcement permits should be given by the court, while the enforcement should be in the competence of the bailiff, as to limit the possibilities for presenting legal remedies because the objections would need argumentation and there would not be a possibility to file legal remedies against the bailiff's conclusions.

In 2005 the Enforcement Act was adopted (Official Gazette No. 35/05). According to the Ministry of Justice, the Republic of North Macedonia with this law made the most revolutionary choice, over 1 billion Euros were put back into circulation in the country, 500 people were employed in bailiff offices and 50% of stalled cases were completed for 1 year at no cost to the state (Judicial Sector Reform Strategy, 2017). According to the European Commission in the Progress Report of RNM for 2016, the area of enforcement was not a problematic area but again there were numerous reactions in the public both from people in general and from the economic sector in particular.

Through the provisions of the Enforcement Act (2005) the system of private enforcement was accepted, but this law did not provide for the issuance of a permit for enforcement by the court (Јаневски, 2006, p. 237). The enforcement practice which was created by the 2005 Law was considered by the critics to have achieved the desired effect by solving the problem of procedural efficiency and pace and the workload of the courts (Јаневски & Зороска-Камиловска, 2011 a, p. 60). In this regard, it was suggested to consider the creation of enforcement practice without large burdens, to approach a more serious analysis for review and adequate solutions in order to respect the fundamental rights of parties, participants and the third persons in the procedure. This law also had its disadvantages, as for our country this system was an “equation with many unknowns” and our country was still not at all familiar with the application of private enforcement, thus the law was changed over 10 times and some very important moments, among which the issue of legal remedies, were put in consideration before the Constitutional Court.

From 2013, intensive preparations began for adopting a new law, the provisions of which would include the legal provisions of the Enforcement Act (2005), fill the legal gaps, specify the legal competencies of the bailiff (since there was a long timeframe for undertaking procedural actions that were at the discretion of the bailiff), increase the obligation for cooperation between bailiffs and other institutions, including the creation of an electronic link between the bailiff and other institutions, make changes on the conditions for election of bailiffs, and other changes that would strengthen the level of protection of parties, participants and third persons.

Among the changes introduced by the Chamber of Bailiffs of the RNM were the provision of qualitative solutions and benefits for the participants in the enforcement, the impossibility of unfair competition that affected the work of bailiffs, shortening deadlines for the sale of real estate, reducing tariffs for enforcement, incorporation of the institution of out-of-court settlement payment for municipal and public services, the obligation of the bailiff to call natural persons (debtors in procedure) to inform him within three days about their financial situation, the assessment of the knowledge of the bailiffs to be done every 7 years, as well as the review of all other bylaws (Петрески, 2020). The changes which were considered by the Chamber of Bailiffs as a “strong point” to facilitate the enforcement process, very shortly after the adoption of the Enforcement Act (2016) were repealed by two decisions of the Constitutional Court, Decision no. 143/2016 (Official Gazette of the Republic of North Macedonia number 178/17) and Decision no. 135/2016 (Official Gazette of the Republic of North Macedonia number 26/18).

Each country decides which system to use, as there is no international legal act that obliges states to apply a particular enforcement system. No matter which system is applied, private, judicial, mixed or administrative, it is important that it is efficient and achieves the function for which it was created. Once the country accepts an enforcement system, it must first test the “strategic model” in real life environments, as the existence of norms in the legal system is useless if they cannot be implemented or materialized (Lemos & Stein, 2010, p. 15). Among the countries that are known for the efficiency of the enforcement system is Slovenia, where the Enforcement and Securing of Civil Claims Act is in force since 1998 (Чавдар & Чавдар, 2016, p. 2). Slovenia accepted the concept of partial privatization, because the courts have the exclusive right to decide, while the bailiff is appointed by the court for the tasks entrusted to him (Ријавец, 2009, p. 119). On the other hand, Croatia also tended to privatize the enforcement procedure. In 2010, the Croatian parliament adopted the Enforcement Act, which provided enforcement powers for public bailiffs as well as in certain cases for notaries, while courts had jurisdiction in specific cases, for example when the procedure was initiated ex officio. This idea of private enforcement was not accepted by the professional scientific public and beyond, so in 2012 a new Enforcement Act was adopted (Narodne Novine 112\12). However, the idea of incorporating the bailiff in the procedure was not abandoned, so after numerous debates, it was decided that a second chance should be given so that debts from municipal services could be collected through public bailiffs (Zoroska-Kamilovska, 2013, p. 461).

Almost all countries in the region try to create the most efficient enforcement systems, in which the tendency for privatization is evident. Even the countries which belong to the judicial enforcement system such as Bosnia and Herzegovina, are considering using the private enforcement or a public agency that will enforce the municipal claims (Paragraf Lex, 2021).

The private enforcement system has proven to offer speed in the realization of creditors' claims in all countries, which is one of the reasons why it is considered a more attractive system. The levels of “privatization” chosen by countries are the result of the policies and undertakings of countries to create the most effective enforcement system. We can freely say that North Macedonia has taken a step further compared to all other countries in terms of privatization of the enforcement system, but the way that these steps are perceived by the public is also very important. In this regard though, almost no research which would explain this phenomenon has been carried out, which would have allowed for such a research to be taken into consideration in case of eventual review of our enforcement system.

2. The Concept of Enforcement

People are not always inclined to fulfill their obligations within the deadline for voluntary fulfillment, therefore there is a need for an appropriate enforcement system. In the contemporary law the creditor cannot forcefully impose the debtor to fulfil his obligation. Entities are not authorized to decide or oblige the other party to fulfill the obligation which has been authoritatively and unequivocally confirmed by a final court decision (Јаневски & Зороска-Камиловска, 2011 b, p. 3). In this case, the creditor is the one who seeks to realize his right contained in the enforcement document. This right to protection represents the entitlement of the bearer of the right to request from the state to intervene with its apparatus of violence in order to protect his right (Janevski & Tatjana, 2009, p. 2). Writs of execution, regardless of whether they are court decisions or other enforcement documents whose enforcement power is recognized by law, must be enforced, otherwise everything undertaken to reach enforcement will be useless to the creditor.

In the legal literature there are two concepts related to the enforcement procedure: that of the indivisibility of the enforcement proceedings, and the second concept that considers enforcement as a complex branch of law (Mizinova, 2013, p. 33-39). There are also authors who consider that the enforcement phase cannot be separated from the court proceedings, as they are components of the same activity. Although each of them has different characters, they are nevertheless successive stages of the civil process for making the final decision (Evelina, 2010, p. 129). The RNM has adopted the concept of independence of the enforcement procedure, which means that the development of the procedure such as the contentious procedure or other type of procedure, does not necessarily include the enforcement procedure.

In the past, the enforcement procedure was a court procedure, but over the years in almost all countries there is a tendency to privatize the enforcement systems. There are also various transitional systems and/or combinations between them. Within a European framework there are four different enforcement systems, such as: court-oriented system, bailiff-oriented system, mixed system and administrative system (Andenas & Pnerhammer, 2005, p. 34-36), cited in (Zoroska-Kamilovska, 2013, p. 465). Europe is the continent where the enforcement agent has been significantly consolidated in the last two decades, namely in France the function of the bailiff with 73.33% is based on a liberal basis, while only 26.67% are civil servants (Stoica, 2012, p. 952).

Countries very carefully follow the recommendations, which refer to enforcement, among which are the Recommendations of the International Union of Bailiffs and the Recommendations of the Council of Europe with special emphasis Rec (2003)17, which refers to countries in establishing enforcement systems which would be as efficient as possible, as well as to create the most practical and simple systems (Recommendation Rec (2003)17, 2003). The modern concept of enforcement is based on the premise that even if the country is freed from such issues which in essence do not represent a “judgment”, it still retains the function of control, regardless of the chosen model of enforcement (Zoroska-Kamilovska, 2013, p. 466). In this context, the Enforcement Act (2016) in Article 62 provides for the obligation to insure against liability, in the event that damage is caused through the fault of the bailiff or by his negligent actions or omissions. With this provision, the state actually distances itself from the responsibility of the bailiff, and the latter has provoked reactions in the public. Although the tendencies are moving towards the privatization of enforcement systems, we must emphasize that the role of the court has not been completely eliminated, because for legal remedies such as objections and appeals, the jurisdiction of the court has been preserved.

Each country in its legislation regulates the entirety of the competences of the bailiff, its status, role and function in the protection of the participating parties and third parties. The bailiff has the authority to decide in this special procedure, in fact to conduct the entire procedure of the enforcement (Borianijasheviç, 2017, p. 183). In this regard, the bailiff does not act as part of the state apparatus of “violence”, but neither is he a civil servant, namely in organizational and functional terms he is separated from the state (Krstiç, 2017, p. 200). Another opinion states that the activity of the bailiff is limited to the realization of the public service delegated by the state, as an essential component of public administration (Evelina, 2010, p. 129). Bailiffs have even started to enforce enforcement documents in cyberspace (Gumuliauskienė & Vigintas, 2012, p. 517) which implies a low-cost enforcement, although all other documents in the enforcement file are archived and processed in the classical form. This form of enforcement is being implemented not only by European systems but also by the countries of the region, with special emphasis on Slovenia and Serbia, while North Macedonia is far from creating such a system because technical preconditions must be created by IT sector as well as by a new legal framework.

In our country, the bailiff exercises public authorizations, which derive from the Enforcement Act (article 32), by fulfilling the legal preconditions, while the appointment of bailiffs is made by the Ministry of Justice itself (Enforcement Act, (no.72|16, 2016). During the enforcement, the bailiff undertakes various enforcement activities which include the property and other rights of the debtor (Јаневски & Зороска-Камиловска, 2011, p. 57). Article 21 of the Global Code of Enforcement stipulates that the task of the bailiff does not include only enforcement activities, but other activities, especially in terms of debt collection, as secondary activities (Global Code of Enforcement, 2015). This possibility for the bailiff to act as an intermediary party is not foreseen in the Enforcement Act (2016). However, even in this regard we support the idea that if the debtor proposes a certain way to fulfill the debt to the creditor, the bailiff should notify the creditor and carry out the enforcement as the result of the agreement between the parties (Чавдар & Чавдар, 2016, p. 39). Otherwise, the competencies of bailiffs according to our current legislation include a very wide activity even compared to other countries in the region, which have reserved many of the competencies for the courts.

3. Research Methodology

In order to establish a clear idea about the perception of the institute of enforcement in the Republic of North Macedonia, we have conducted a research in which data have been collected, based on which we will try to give concrete explanations. The methodological framework is based on the survey of citizens using a random sample from the entire territory of the RNM with the voluntary participation of 1109 citizens, of which 1084 surveys are valid. Citizens had the opportunity to express their opinion through the “five-point Likert scale”.

From the research conducted, 36.62% are female and 63.38% male, while the average age of the respondents is 35, from a minimum of 18 and a maximum of 70 years. Respondents were divided into two research groups depending on whether they know the bailiff function in the RNM or not, and there were different questionnaires for these two groups. In this regard, 75.92% of respondents stated that they know the function of bailiff and 24.08% of respondents did not know the function of bailiff. Respondents were asked about their economic status and it turns out that full-time employees in a public institution are 26.42%; full-time employees in private institutions are 21.95%; part-time employees in public institutions are 2.60%; part-time employees in private institutions are 3.81%; pension beneficiaries are 1.21%; beneficiaries of social assistance are 1.58%; beneficiaries of disability assistance are 0.47%; alimony providers are 0.09%; Students are 13.77%; unemployed are 26.60% and 1.49% are defined as part of other categories, for which they have not been pronounced.

Citizens were also asked about the number of family members and their participation, i.e. experiences in the enforcement proceedings. The largest numbers of respondents come from families with four members with 26.2%, five members with 25.6%, six members with 15.7%, three members with 12.3%, seven members with 8.2%, two members with 3.6%, eight members with 3.3%, and other groups with very little representation. The data collected has been processed statistically to achieve testing, comparison, or even correlation between several statements.

4. Research Questions

The purpose of this research is to provide answers to some questions, which are the result of researching the phenomenon of enforcement in the RNM. In this regard the main questions are:

• What are the attitudes of the citizens regarding the function of the bailiff and the role of the courts in the enforcement system of RNM?

• Does citizen perception depend on individual experiences, economic status, or any other factor?

• Does the writ of execution cause fear among citizens are there differences in relation to the readiness to fulfill?

Survey Questions

A. Assertions made to the people who know the function of bailiff are:

1. Bailiffs do their job professionally!

2. Bailiffs do their job independently!

3. I regularly fulfil the obligations to entities that provide public/municipal services!

4. I would obey (I have obeyed) the writ of execution on my property as a result of my debts!

5. The court protects citizens in case of irregularities made during the enforcement!

6. I would file (have filed) legal remedies to protect my rights during enforcement!

7. When concluding contracts, I do not always fulfill the obligations to the other party!

8. In general, how do you evaluate the function of the bailiff? (1 to 5, where 1 is a poor grade and 5 is a good grade).

9. “Writ of execution” causes fear!

10. The role of bailiff is very necessary for disobedient people!

11. I think the best way to force someone to pay their debts is to block their bank account!

12. I do not worry if I am late in fulfilling my obligations to other people!

13. I do not know my rights guaranteed by the Enforcement Act!

14. My bank account is blocked by the bailiff!

15. I have been notified (should be notified) in time by the bailiff, for the enforcement actions!

B. The proposition made to the people who do not know the function of bailiff or have not heard of this type of function:

1. I have heard of cases when their bank account has been blocked due to debts!

2. I think the best way to force someone to pay their debts is to block their bank account!

3. I regularly pay obligations to entities that provide public / municipal services!

4. I worry a lot if I am late in fulfilling my obligations to other people!

5. Research Results

In measuring the attitudes of citizens towards bailiffs for professionalism, independence, the way he does his job, the way he realizes the notification of the parties, including the citizens' fear of writs of execution, we see that the average for attitudes towards bailiffs who know the function of the bailiff is M = 8.43, from a minimum of 0 and a maximum of 24, out of a total of 823 persons (the first group of respondents). The symmetry value of Skewness Sk=.475 presented in Table no.1 shows a pronounced negative presence of attitudes towards the work of bailiffs.

Table 1. Citizens’ Opinion toward Bailiff

Regarding the evaluation of the work of bailiffs, we must emphasize that women have more positive attitudes with an average of 10.4323, while the average of attitudes among men is 7.6700 (Table no. 2).

Table 2. Opinions towards Bailiff by Gender

The correlation is negative between economic status and attitudes towards the work of bailiffs (r = -. 04, p = .247), i.e. all citizens tend to think the same regardless of their economic status (Table no. 3).

Table 3. Correlation between Opinions toward Bailiffs and Economic Status of Citizens

Differences were found between the attitudes of Albanians and Macedonians towards the work of bailiffs. Albanians have a more positive attitude than Macedonians with an average of 8.8464, while Macedonians with an average of 7.5703 (Table no. 4).

Table 4. Opinion toward Bailiff Based on Nationality

A very interesting finding is the correlation between the observance of the writ of execution and the fear caused by the writ of execution. After processing the data, it turns out that the correlation coefficient between these two attitudes is very weak, with statistical significance .00, which means that fear does not constitute an element for people to more or less obey the writ of execution. Citizens with 38.6 percent said that they “fully agree” that the writ of execution causes fear, but with 32.6% said that they “do not agree at all” with the statement that they would respect the writ of execution.

In the enforcement proceedings in terms of protection of the rights of the parties and participants, it is very important how much the citizens know the rights guaranteed by the Enforcement Act. Towards the statement “I do not know my rights guaranteed by the Enforcement Act”, the citizens have expressed themselves as in Table no. 5.

Table 5. Citizens’ Opinion Regarding their Perception towards Guarantees Provided by the Enforcement Act

Even from the table we can easily see that opinions are divided between two opposite positions, but with a slightly higher percentage of people who think they know their rights (27.8%), compared to the people who do not know their rights and guarantees provided by the Enforcement Act (23.6%).

In addition to the bailiff, the court also has a major role in the enforcement process. In evaluating the work of the courts in the enforcement process, the attitude of citizens towards the court appears more biased on the negative side of values, with an average of 3.26 from a minimum of 0 and a maximum of 8. According to the graph and symmetry of values, citizens' evaluations are very negative towards the court in relation to the defense they perceive from the injustices from the enforcement and the willingness to submit legal remedies for protection during the actions of the bailiff in enforcement (Table 6).

Table 6. Citizens’ Perception on the Legal Protection Provided by the Courts

Table 7. Citizen’s Opinions toward Blocking Bank Accounts of the Debtors

The research has further tried to see who represents the 48% based on participation in the procedure. Based on participation, the respondents in a large extent have been represented by debtors and persons who have not been part of the enforcement proceedings (Table 8).

Table 8. Citizen’s Opinions toward Blocking Bank Accounts Based on Participation on Enforcement Procedure

The survey included questions referring to the blocking of bank accounts of both groups in order to analyze whether opinions differ on the blocking of the account depending on the recognition of the role of the bailiff in the procedure. In this regard, a positive average correlation was found, according to which this category of people who do not know the function of the bailiff, but who have heard about the blocking of bank accounts, seem to agree more that blocking of bank accounts is a good way to force someone to pay off debts, which increases with the level that they have heard about the blocking of accounts (Table no. 9).

Table 9. Correlation between Opinions of Two Groups of Citizens toward Blocking Bank Accounts

In terms of the research question investigating the level that citizens are inclined to fulfill their obligations to institutions providing public / municipal services, and how much they worry in case of delay in the said fulfillment, the result shows that there is not a statistically important difference between the attitudes of the two groups of respondents regarding regularity in compliance, with an average of 533\534 (table no. 10). In terms of concern in case of non-fulfillment of obligations or delay in fulfillment towards other persons, the difference is statistically significant and according to it, persons with enforcement experience show more concern than those who have not heard about enforcement (Table no. 11).

Table 10. Regularity in Performing Payment Obligations to Institutions that Provide Public/Municipal Services

Table 11. Concern in Case of Non-Fulfillment of Obligations or Delay of Fulfillment towards Other Persons

This means that the persons of the first group are much more concerned with delays than the second group who do not know the consequences in case of initiating the enforcement procedure.

One of the questions that the citizens had the opportunity to directly mark with an evaluation from 1-5 grades was the question “How is the work of the bailiffs of the RNM evaluated?”

Table 12. Citizens Evaluation on Bailiff’ Work

A very high percentage of citizens (64.8%) think that the performance of bailiffs is very poor, while only 2.4% of respondents rate the work of bailiffs with an excellent grade. An average rating for the bailiff is given by 13.6% of the citizens (Table 12).

6. Conclusion

The results of the research show that citizens do not express very positive opinions about the performance of bailiffs in North Macedonia. The negative attitude does not change towards the courts either, especially if we consider that the courts decide on legal remedies for the illegalities in enforcement, which further aggravates the assessment of the work of the courts in the RNM. This opinion is expressed based on the enforcement experiences, including 47.39% debtors, 5.95% creditors, 7.29% bailiffs, 1.70% participants and third parties, and 37.67% persons who have not been part of the procedure.

In general, all citizens of RNM emphasize that they fulfill their obligations to entities that provide public/municipal services with a dominant percentage of 37.5%, in fulfillment of contractual obligations with 44.5% and are especially worried if they are late for fulfillment with 51%. According to the results, we find that citizens do not justify the role of bailiffs even to persons who are disobedient (37.7%), who are inclined to collect debts to other entities, while only 11.3% (the lowest percentage of all variables) agree that bailiffs are indispensable. On the other hand, 32.6% (dominant percentage) of citizens claim that they would not respect the writ of execution! Then the question that arises from the citizens is how will the enforcement of debts be done in case of non-compliance with the order? If an unsatisfactory level of performance of bailiffs is expressed, but also of the courts, it means that these citizens would not entrust this function to the court either. Therefore, we must keep in mind that the state must necessarily approach one of the enforcement forms, to guarantee legal security and respect for the rights of citizens. The function of the bailiff is a body which performs “compulsory enforcement” and it is understood that it is not a role welcomed by the citizens, but the Ministry of Justice together with the Chamber of Bailiffs must ensure unification of the enforcement practice during the supervision, and be careful in compliance with articles 116 and 117 of Enforcement Act, which refer to the restriction and exclusion of items and rights from enforcement, because according to all experiences citizens base their opinion on this issue.

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