2022-08-06

West Bank and Gaza

West Bank / Gaza / position paper

The legal issues in the Decree-law No. 21 of 2022, regarding the amendment of the law of execution No. 23 of 2005

Article (3) of the amendment:

This article stipulated that the head of the execution department (previously known as the judge of execution) is on the same level as a judge of first instance court. However, it did not specify the judicial rank of the associates of the head of the execution department. It also addressed the impermissibility of order execution during official holidays.

­Article (4) of the amendment:

It did not state that the judge of execution follows the procedures in the law of Civil and Commercial Procedures, unless the law stipulates otherwise. It also expanded the jurisdiction of the judge of execution to include the appointment of experts, travel ban, and the authorization to force the execution.

Article (5) of the amendment:

It allowed the judgment creditor to file the execution claim near his domicile or where the money of the judgment debtor is located. Accordingly, the matter of execution has become a grueling task for the judgment debtor in terms of distance, as the judgment creditor who resides in Hebron might resort to the Hebron department of execution, when the judgment debtor could be from Jenin, for example. The difficulty of serving summons, or ensuring that the summons has been properly served.

Article (6) of the amendment:

In order to object the decisions of the head of the execution department, one has to submit a request for order revocation. Therefore, it is inadmissible to resort to the court of first instance in its appellate capacity until after submitting the revocation request to the head of the execution department. In other words, the one making the appeal is the revocation request.

The court of first instance in its appellate capacity is the competent court to examine the appeal against the execution, considering that the head of execution department has the rank of a judge of a first instance court. Therefore, it is impermissible to appeal against a first instance court’s judge to a court of first instance, even if it has appellate capacity. This article increases the number of execution appeal courts, which could lead to more conflicting judgments and other previous issues.

This article stipulated that the aggrieved party should be informed of the decision of the head of the execution department, which allows room for the debtor to hide and smuggle his money. It also canceled the need to submit a monetary bail when appealing the detention order and this is a dangerous matter that allows for stalling.

The papers of the execution claim are not filed to the court of first instance in its appellate capacity, if the decision of the execution judge is unappealable, i.e., it is not among the conditions laid out in that article or if the decision has already been approved by the appellate court. The question is how can the appellate court verify this matter before the referral of the papers and examining the file, and who will decide whether to refer the case file or not?

It set the duration of the appeal as 7 days in urgent matters and 15 in the rest, but it did not address the matter of whether to attach or not attach a certified copy of the decision for appeal purposes.

Article (7) of the amendment

Foreign judgments are now enforceable at the execution departments despite that there are texts in the law that say otherwise.

Article (8) of the amendment:

The period in which the judgment debtor can check with the execution department is now (14) instead of (7) days as it once was in the previous text.

Article (11) of the amendment:

This article allowed the judgment debtor a period of (15) days to object the debt, which goes against the (14) day period stated in Article (8) of the same amendment.

If the judgment debtor wishes to get a refund of the money unrightfully taken from him, then he must file a case “on the merits” to get a refund. This contradicts Article (18) of the Basic Law that is still in force which grants jurisdiction to the judge of execution, as no new law or decision has been issued, and it did not allow the judgment debtor to demand a remedy from the claimant as a result of the wrongful enforcement of an order, and therefore piling up another unnecessary case.

The amendment obliged the judgment debtor to refer to the competent court to prove the allegation of forgery or fulfillment of debt when it comes to official documents and it leads to a stay of execution. As for the denial of signature or claiming forgery of unofficial and business documents, the creditor has to review the competent court and there is a stay of execution. However, if the debtor claims to have fulfilled his debt, all or part of it, then he has to stand before the competent court, but the execution is not suspended this time.

If the judgment creditor is affected by the objection of the judgment debtor whose objection is proved invalid, then the competent court fines the debtor 1/5 of the amount of the judgment debt, all paid to the treasury, but it did not state anything about compensating the creditor.

This Article states that the enforceable period for official, unofficial, or business documents, is (15) years; Note that business documents have a special limitation period as stated in the trade law.

Setting the limitation period for the execution to (15) years contradicts the text of Article (166) of the original law of execution, which was not clearly canceled, and it set (15) years as a period of limitation for the execution of judgments, while other execution orders, such as business documents follow their own rules.

Article (14) of the amendment:

The amendment did not state that the proposed settlement should be equal to the judgment debt, and it did not take under consideration that the first two paragraphs of the Basic Law addressed the procedures that assess the debtor’s ability to pay the debt, which goes against paragraph 1 of the amendment.

Article (15) of the amendment:

The text talks about delaying the detention order. It does not provide or lay out any solutions to the practical issues that arise during the enforcement of an order, as sometimes the medical panel does not properly examine the judgment debtor and their report does not reflect the reality of his health. The text also failed to address if his illness prevents him from being detained.

The text did not set any guarantees for the judgment creditor if the head of execution department decided to delay the detention order and did not give him the right to appeal the report of the medical panel to a higher medical panel or to request that they re-examine it to avoid shortcomings in any medical report, or prevent the submission of any refuted reports from another governmental medical panel such as the military medical services.

Article (16) of the amendment:

The text of this article must be repealed, as the paragraph added by the amendment already exists and is in Article (161), paragraph (2) of the original law.

Article (17) of the amendment:

The text talks about the impermissibility of detention. This article expanded the cases in which the debtor may not be detained, without giving any guarantees for the judgment debtor.

It did not grant the claimant the right to appeal the report of the medical panel to a higher medical panel or to request that they re-examine it to avoid any shortcomings in medical reports and prevent refuted reports from another governmental medical panel such as the military medical services.

The article used general terms and it did not contain a text that obliges the government medical panel to conduct a sensory examination to closely examine the debtors’ health condition and not just explain his health condition or rely on the medical reports that are provided by the debtor.  It did not indicate that the chronic disease, from which the debtor suffers, should be affecting his life and preventing him from being detained.

The article warned against detaining the debtor over a debt with in-kind securities, but it did not consider that the in-kind securities might not cover the judgment debt amount, which allows for evasion and fraud.

The article warned against detaining a person who is interdicted on account of prodigality and unawareness or absence of mind. This article causes harm to the judgment creditor, because the aforementioned have acted in a legal manner which puts them under legal obligation, not to mention that the issue of determining if one is prodigal or absent-minded is a very broad matter.

Article (18) of the amendment:

Article (18) amended Article (164) of the original law, and there is no reason to amend the Article by deleting the previous text, which granted jurisdiction to the execution judge to rescind the detention order, if the debtor disclosed money or paid off his debt.

Article (19) of the amendment:

This article introduced the so-called “discontinuance of the execution claim” by a decision of the head of execution department upon the parties’ request or automatically. The law of execution does not contain any definition for what is called “discontinuance of the execution claim” and it seems to be similar to the “discontinuance of pleadings” mentioned in the law of civil and commercial procedures, except that the amendment granted the head of the execution department the right to discontinue the claim without request from parties of the claim. This is a dangerous matter if done without prior notice as this gives the debtor a legal basis to avoid paying his debt.

The amendment did not define what is meant by a “Legal obstacle” that is considered a reason or a legal excuse to not “discontinue the execution claim”, and is the death of one of the parties considered as one of the accepted excuses?

It is possible that the order is executed or a detention order is issued against the debtor, and there is no further legal action left to do, but it is also possible that sometime in the future the debtor’s money could appear, and yet the judgment creditor will not be able to collect his rights.

This article contradicts Article (11) of the amendment that granted a period of 15 years for the execution starting from the date of the last procedure in execution claim.