Proportionality of the manner of performing distrainment

Ombudsman was approached by a complainant requesting an inquiry into the procedure of the Ministry of Justice in supervising the activity of a court distrainor. She found the manner of distrainment out of proportion because the distrainor had “froze” eleven of the complainant's properties worth several million Czech korunas (and also three current accounts) for his failing to pay the maintenance and support of his son, slightly exceeding CZK 70,000.

It was ascertained that the distrainor had created a distrainor's security interest in all properties of the obligor not constituting a united functional unit and simultaneously had issued distrainment orders to sell the properties, regardless of the size of the enforced claim with accessions. The Ministry of Justice had not reproached the distrainor for the procedure. Following an inquiry it was concluded that it was necessary always to assess the proportionality of the aim of the distrainment and necessary interference with the rights of the obligor. Where it is sufficient to create a security interest only in some properties of the obligor (in one functional unit) to pay the claim with all accessions, including the due margin pursuant to the provision of 58 (1) of the Rules of Distrainment (Act No. 120/2001 Coll., as amended), it is excessive to create a security interest in other properties and thus limit the rights of the obligor more than necessary for guaranteeing the rights of the obligee.

With the application of the minore ad maius argument, the conclusions also apply to the practice of “automatic” issuance of distrainment orders ordering the performance of distrainment through the sale of (all) properties of the obligor. There is no legitimate reason to order automatically distrainment through the sale of (all) properties of the obligor. 

After the conducted inquiry, an agreement was reached with the Ministry of the Justice that the issuance of a distrainment order to sell a property did not only have the character of a security and, all the more so, proportionality needed to be emphasised in respect of such order. The Ministry of Justice promised that it would conduct disciplinary proceedings against distrainors for a disproportionate manner of performing distrainment through the sale of immovable property. Negative impacts of disproportionateness in creating a distrainor's security interest were mitigated by an amendment of the Rules of Distrainment, which removed the prohibition to dispose of property with a distrainor's security interest.