Constitutional Court: Rules on the Allocation of Private Bailiff Fees in the Enforcement of Child Contact Orders Are Unconstitutional

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The Constitutional Court, upon an application filed by a citizen, reviewed the constitutionality of paragraph 2 of Article 13, Article 27, and paragraph 3 of Article 76 of the Constitution in relation to paragraph 2 of Article 118 of the Law “On Enforcement Proceedings and the Status of Enforcement Officers” and the third paragraph of the Notes to the Schedule of Fees for the Services of Private Bailiffs, approved by Order No. 416 of the Minister of Justice dated 27 June 2023.

Under the contested provisions, the fees payable to a private bailiff for the compulsory enforcement of a court decision determining the procedure for communication with a child are to be shared equally between the creditor (claimant) and the debtor.

At the same time, the general enforcement framework places the financial consequences of failing to comply with a court judgment on the debtor.

Background of the Case

The applicant argued that the existing legal mechanism governing enforcement costs restricted his parental rights by creating financial barriers to maintaining personal contact with his children, who live separately from him.

Position of the Constitutional Court

In its decision, the Constitutional Court emphasized that the current legislation clearly provides that divorce, the annulment of a marriage, or the separate residence of parents cannot serve as grounds for restricting a child’s meaningful communication with both parents and other relatives, or for limiting the exercise of the rights and legitimate interests of either the child or the parents.

The Court stressed that each parent has a responsibility to participate directly in the upbringing and development of their child. Therefore, the mechanism for enforcing court decisions must effectively protect the child’s interest in maintaining family relationships and should not make the exercise of that interest dependent on the financial circumstances of the parents.

The Constitutional Court further noted that the contested rules undermine the constitutional guarantee of the binding force of judicial decisions by requiring the person in whose favour the judgment was rendered to bear part of the costs of enforcing that judgment through a private bailiff.

Findings of the Constitutional Court

The Constitutional Court declared the contested provisions to be inconsistent with the Constitution.

The Government has been recommended to take measures to improve the legislation governing the payment of private bailiffs’ fees in the enforcement of court decisions determining the procedure for communication with a child, in accordance with the legal positions set out in the Constitutional Court’s Regulatory Resolution.

The full text of the Constitutional Court’s Regulatory Resolution is available at: https://www.gov.kz/memleket/entities/ksrk/documents/details/1025491?lang=ru