Judicial oversight in enforcement proceedings is one of those areas of Ukrainian legal practice where legislation and case law have developed inconsistently for many years. Today, however, as the effectiveness of enforcement directly affects not only individuals’ rights but also the country’s investment climate, the topic has become increasingly important.

International Standards: Courts Must Facilitate Enforcement, Not Obstruct It

The European Court of Human Rights has repeatedly emphasized: the right to a court is not limited to obtaining a judgment — it also includes the right to have that judgment effectively enforced. Key principles derived from ECtHR practice include:

• courts must facilitate enforcement rather than create additional obstacles;
• excessive formalism is unacceptable when it impedes enforcement;
• the state must prevent procedural abuse by any party;
• prolonged or artificially complicated enforcement violates Article 6 of the Convention.

New Legislation: Two Months of Inaction by the Debtor — and the Mechanism Changes

Law No. 4094-IX (2024) significantly strengthened the position of the creditor (claimant). Now, if within two months from the opening of enforcement proceedings the debtor fails to comply with a judgment requiring transfer of property or other actions regarding the creditor’s assets, the court may change the method of enforcement to monetary recovery of that property’s value. Key points:

• the value is determined under the Law on Property Valuation;
• the rule applies under both the Civil and Commercial Procedural Codes;
• the mechanism is triggered by the creditor’s application;
• exceptions apply if the creditor obstructs enforcement or evaluation is impossible.

Arbitral Awards, Foreign Judgments and International Arbitration: The Limits of Judicial Oversight

The Supreme Court has established a key principle: a court that merely examines procedural compliance when recognizing and allowing enforcement of an international arbitral award or a foreign judgment is not a court of first instance for purposes of enforcement proceedings. In practice, this means:

• such a court cannot consider applications by the enforcement officer to seize other assets of the debtor;
• however, if the court actually examined the case on the merits (e.g., an appellate court ruling on an award of the ICAC at the Ukrainian Chamber of Commerce and Industry), then that same court must rule on postponement of enforcement.

Problem #1: Debtors Are Often Not Involved in Critical Enforcement-Related Decisions

Current procedural rules allow courts to decide certain enforcement-related issues without hearing the debtor, including:

• temporary travel bans (Article 337 of the Commercial Procedural Code; Article 441 of the Civil Procedural Code);
• applications from enforcement officers concerning compulsory measures.

While this supports the logic of effective enforcement, it also leads to inconsistencies in judicial practice. Some courts require enforcement officers to:

• prove the debtor’s “intentional evasion”;
• provide evidence that the debtor plans to cross the border to avoid obligations;
• justify why the debtor did not appear when summoned.

Such an approach results in situations where:

• the absence of property is interpreted as “non-intentional non-compliance”;
• failure to appear when summoned is deemed “insufficient proof” of unwillingness to comply.

As a result, the very instrument of temporary travel restriction risks losing its practical purpose.

Problem #2: Excessive Judicial Formalism

Case law illustrates that some courts:

• assess subjective motivations rather than the debtor’s actual behavior;
• demand evidence that is practically impossible to obtain (e.g., the debtor’s intent to leave the country);
• impose on enforcement officers duties that are not required by law.

This contradicts ECtHR standards, which clearly state: the state must not create conditions under which enforcement becomes impossible due to excessive formalism.

What Should Effective Judicial Oversight Look Like?

Reform is needed not only in individual procedural provisions, but in the very philosophy of judicial oversight. The future model should be based on the following principles:

1. Judicial oversight must be outcome-oriented — focused on actual enforcement of judgments. Not on mechanical verification of the enforcement officer’s actions. Not on risk-avoidance. But on real restoration of the claimant’s rights.

2. Courts must follow European standards.

They must accelerate enforcement, prevent abuse, and eliminate artificial delays.

3. Judicial oversight must include mechanisms of pressure on the debtor.

Without coercive elements, enforcement becomes “voluntary-compulsory”.

4. Judicial practice must move away from legal purism.

Substance must prevail over form — the core ECtHR principle.