Special enforcement agents: Reform or outsourcing?

Analysis

In accordance with the draft law submitted to the Milli Majlis on July 4 of this year, the institution of a special enforcement officer is planned to be established in Azerbaijan. On July 14, 2025, the draft law was adopted in the final reading. The justification for this draft law, which was not widely discussed in parliament, was provided by the Ministry of Justice, stating that it was designed to increase the effectiveness of the existing enforcement system and support the state enforcement apparatus.

“Tribunat” scrutinized the document and examined the essence of the new institution and its promises of effectiveness.

Prior to this legislative act, the enforcement of court decisions, records, and administrative decisions was a state monopoly under the Laws “On Enforcement” and “On Enforcement Agents”. According to the relevant Regulations, this function was performed by the Main Enforcement Department of the Ministry of Justice.

The new Law is designed to establish a special (private) enforcement system parallel to the state enforcement mechanisms. According to the document, special enforcement officers will be selected from among citizens and will gain the right to operate based on competition (8.1). The Law equalizes the status of state enforcement officers and special enforcement officers (4.1) and recognizes broad rights and powers for the implementation of enforcement processes (21). Even though there is a self-governing body of special enforcement officers (6), the state body (these functions will presumably be carried out by the Ministry of Justice - ed.) will have the ability to control, monitor and inspect the activities (27). The enforcement of a legal document by a special officer shall be determined by the claimant (25) and shall be financed by a standard enforcement fee paid in advance (26) and an additional enforcement fee for full or partial enforcement determined by mutual agreement (25.1). The claimant may, by application, direct the enforcement of a legal document to a special enforcement officer (20.1). The following are matters that a special enforcement officer may not undertake:

• Alimony;
• Compensation for damage to health;
• Compensation for damage to persons affected by the loss of the breadwinner; 
• Compensation for damage caused by a crime.

The law consists of 39 articles, including final and transitional provisions. It will enter into force on January 1, 2026. Although the problematic aspects and gaps that the law may create will be more widely observed after the institution is fully operational, some cases can be highlighted at this point. The requirements for special enforcement officers are quite extensive, and the exemption of persons who previously worked in state institutions from the test stage for obtaining a certificate seems problematic. The composition of the Competition Commission also raises certain questions; the participation of representatives of the Notarial Chamber, the Bar Association and the Judicial-Legal Council in the selection of special enforcement agents was not justified in any way during the discussion of the draft legislation. In addition, although provisions are devoted to administrative control over the self-government body of special enforcement agents, the practical organization of activities is open to considerations and raises doubts in several points (for instance, involvement in disciplinary proceedings, openness, accountability and transparency of the Chamber, etc.).

In recent years, the trend of special enforcement agent institutions has become widespread in many countries. In general, the institution has been recommended to Azerbaijan to increase the effectiveness of the enforcement system. For example, within the framework of the project “Strengthening the efficiency and quality of the judicial system in Azerbaijan” implemented jointly with the European Union and the Council of Europe in 2019-2023, a study tour was carried out for employees of the Ministry of Justice to France and the Netherlands to study the activities of special enforcement agents. The existence of special enforcement agents is recognised as an acknowledged practice in advanced legal systems. The “Good practice guide on enforcement of judicial decisions” adopted by the European Commission for the Efficiency of Justice (hereinafter CEPEJ) in 2015 considers it adequate for special enforcement agents to exist in parallel with state enforcement officers. According to the CEPEJ’s assessment report on enforcement officers for 2022, 12% of Council of Europe member states have special enforcement agents in parallel with state enforcement officers, a trend that the Commission indicates is increasing.

In order to analyze the impact of the draft Law on the local enforcement system, it is vital to provide information on the state of enforcement proceedings in the country. According to data from the Ministry of Justice, the number of cases to be executed in 2023 exceeded 1 million. Although the ministry has not yet shared the statistical report for 2024, according to the response to the advocate’s request for information, the number of these cases is currently 1 million 230 thousand, which means an average of 3 thousand active enforcement cases for each enforcement officer. Again, referring to the data of the Ministry of Justice, it is viable to see that the debt enforcement claim can take from 2 to 3 months, depending on whether it is an individual or a legal entity. Even though the ineffectiveness of the enforcement system in Azerbaijan has been voiced for years in discussions by both pro-government and independent media, as well as in parliament, and despite that alternative solutions to unenforced cases have been considered (for instance, the establishment of an Alimony Fund as a solution to unenforced alimony cases), it is difficult to locate a groundbreaking solution to the problem.

One of the questions that the analysis is keen to answer is - how will the establishment of the institution of special enforcement agents contribute to the effectiveness of the enforcement proceedings in the country? To this end, it is reasonable to conduct a comparative analysis by looking at the experience of countries with the same or similar politico-legal environment as Azerbaijan. For this purpose, the practices of Ukraine and Kazakhstan will be looked through.

Both Ukraine and Kazakhstan introduced the institution of special enforcement agents to the proceedings legislation in 2016. A thought-provoking point is that the legislation of both countries chose to modify the existing regulations instead of adopting a new legislative act to integrate this institution. Thus, instead of adopting a similar law “On special enforcement agents”, the institution of a special enforcement agent and its regulation were added to the similar act of the Law “On Enforcement” regulating proceedings in both countries. The passage of almost 10 years provides a basis for noting the contribution of special enforcement agents to the enforcement system in a broad sense in the example of both countries.

If in Ukraine the value of special enforcement agents is recognized by both the general public and specialists, then in Kazakhstan there are vast questions about the efficiency and legitimacy of this institution. In the case of Ukraine, the successes achieved by the institution include reducing the time for the execution of decisions, the creation of competition leads to the flexibility of the state enforcement system, the availability of openness, accountability and transparency regarding the status of the execution of cases. The widespread violation of debtors' rights by special enforcement agents eventually led to the launch of an advocacy campaign by public activists in Kazakhstan to detach special enforcement agents from the legislation, which quickly collected 50,000 signatures. Even though this institution is still in force, human rights activists complain about the arbitrariness of special enforcement agents, the excessiveness of property seizure decisions, their lack of legal knowledge, and the absence of transparency of their activities.

The enforcement apparatus of the state is one of the primary mechanisms ensuring public confidence in its legal system - the enforceability and execution of decisions of the court and other state bodies is one of the elements that make each state law-governed. According to Article 129 of the Constitution, decisions made by the court are issued on behalf of the state and their execution is mandatory. Failure to execute a court decision entails liability established by law. Resultantly, the expectation of a person who has applied to the court is not only the adoption of decisions based on statute and law, but also their enforcement.

The same view is supported by the case-law of the European Court of Human Rights. Article 6 of the European Convention on Human Rights recognises and regulates the right to a fair trial. The Court held in Hornsby v. Greece (§40) and Scordino v. Italy (§196) that the enforcement of judgments is an integral part of the right to a fair trial. The Court held that failure to ensure the enforcement of judgments deprives an individual of the benefit of the rights guaranteed by Article 6 (Burdov v. Russia, §34).

Systematic problems in the enforcement of court decisions in Azerbaijan have been recognized by the ECtHR in several cases as a violation of Article 6. For instance, in Akimova v. Azerbaijan, Aliyeva and Others v. Azerbaijan, and Ahmadova v. Azerbaijan, the Court held that the non-enforcement, delay or postponement of domestic court decisions violated the applicants’ rights protected by Article 6 of the Convention. Incidentally, the enforcement of ECtHR judgments in Azerbaijan is similarly significantly lagging behind; as of 2025, the Court’s judgments in 64% of cases had still not been enforced by Azerbaijan.

“Tribunat” concludes that even though the legislation on special enforcement agents is a positive step that includes measures to increase the effectiveness of the enforcement system, it is not a panacea (comes from Latin and Greek, literally means “a cure for all diseases”, used in the sense of a solution to all problems and difficulties - ed.) that can solve the problems of the enforcement system. For the efficient functioning of special enforcement agents and the enforcement system in general, it is necessary to solve the fundamental problems - corruption, accountable state institutions. Else, the institution of special enforcement agents may suffer the fate of other similar institutions (for instance, the mediation).