Administrative enforcement proceedings from the comparative perspective of legal system of Israel and Poland

AuthorJan Olszanowski
Jan Olszanowski2
In the most general meaning enforcement is the implementation, by the
competent authorities, of the coercive measures with a view to obtaining the
discharge of an obligation vis-à-vis a creditor on the legal base3. Carrying into
effect of judicial decisions, as well as of other judicial or non-judicial enforceable
titles in compliance with the law which compels the defendant to do, to refrain
from doing or to pay what has been adjudged. Enforcement proceedings are a set
of measures taken in connection with enforcement following the lodging of an
enforcement application. Generally, two parties are involved in execution
proceedings. One is defined by law as the winner or creditor. The other party is
defined as the debtor. The most important in enforcement proceedings is to
balance between the protection of the rights of debtor and the effectiveness of the
proceedings, which is connected with the rights of creditor. This is the
consequence of the range of rights of debtor and the catalogue of enforcement
measures which may be implement in enforcement proceedings.
The main aim of the study is to compare the enforcement proceedings in
Poland and Israel regarding to effectiveness of the procedure. It is obvious that the
legal process does not end with a final and just decision, but when such decision is
in fact implemented. In this context, the old Latin saying: ubi ius, ibi remedium
(there is no right without an effective remedy) has acquired a refreshed importance
and meaning. It is obvious that effective enforcement of liabilities guarantees
proper functioning of the state. Generally, the efficiency of this kind of proceedings
is very important for the confidence of business relations and proper flow of
capital. The paper contains three parts. In first one there is a general complex
1 The paper was prepared within the research nanced by a scientific grant Miniatura according
to Decision of Director of National Science Centre (NCN) 2017/01/X/HS5/00047 (ID 369622).
2 Adam Mickiewicz University, Faculty of Law and Administration, Chair of Administrative and
Judicial Administrative Procedure,
3 J. Skala Annex VI: National Report for Poland in: D. Papadopolou (ed.) Possibility and terms
for applying Brussels I Regulation (recast) to extra EU disputes, Brussels 2014, p. 117.
Law Review vol. VIII, issue 2, Jul
-December 2018, pp. 16-25
Administrative enforcement proceedings from the comparative … 17
description of legal systems in Israel and Poland. These two countries have
completely different legal system backgrounds, but regarding to enforcement
proceedings some similarities may be observed. In second part there is description
of enforcement proceedings focusing on administrative enforcement proceedings
and enforcement measures. In third part of the study there is a description of
judiciary control over actions of enforcement authorities. This is the crucial factor
for the protection of the rights of the debtor, who may be the party of the
proceedings most affected by the unlawful actions of administrative authorities.
1. General overview of legal system and enforcement proceedings in Israel
in Poland
Israel is a parliamentary democracy consisting of legislative, executive and
judicial branches. As in other such systems, the parliamentary system is
characterized by an executive branch supported by a legislative branch through
votes of confidence. There is no clear cut separation of powers between the
legislative (the Knesset - Israel's parliament) and executive branches (the Prime
Minister and Cabinet) of the government. The Judiciary is an independent branch
as guaranteed by law. Upon Independence, a Bill of Independence was signed as a
manifesto for the new State. Israel does not have a written constitution, even
though according to the Proclamation of Independence a constituent assembly
should have prepared a constitution by October 1, 19484. In opposition Poland is a
constitutional republic. The Republic of Poland is based on separation of powers
principle5. The legislative power is vested in the Parliament consisting of the lower
house (Sejm) and the upper house (Senate). The executive power is vested in the
President of Poland and the Council of Ministers and the judicial power is vested
in courts and tribunals6. The sources of the Polish law are divided into two
categories: universally binding law and internal law. According to the latest
Constitution of 2 April 1997, the sources of universally binding Polish law are: the
Constitution itself as the supreme law of the land, the statute, ratified international
agreement and regulation. In addition to these sources it has to be mentioned as
well that the enactments issued in the course of operation of organs constitute the
universally binding law in the territory of the organ that issued such enactments
(local law).
4 More see: R. Gavison, Legislatures and the Quest for a Constitution: The Case of Israel, 11 Rev.
Const. Stud. 345 (2006), p. 345 – 400.
5 H. Suchocka, Checks and Balances under the New Constitution of Poland, 1998 St. Louis-
Warsaw Transatlantic L.J. 45 (1998), p. 48-49.
6 R. Cholewinski, The Protection of Human Rights in the New Polish Constitution, 22 Fordham
Int'l L.J. 236 (1998), p.
2. Enforcement proceedings in Poland and Israel
In Polish legal system execution proceedings may be carried out in civil or
administrative procedure7. Enforcement in the narrow sense is the use by the
competent national authorities of coercive measures enshrined in law to recover
payments owed to creditors on the basis of an enforceable title. The enforcement
may be also use to enforce non-pecuniary obligations. Enforcement proceedings
commence when an application for enforcement is lodged. The parties of the
enforcement proceedings are the debtor and the creditor. In administrative
enforcement proceedings the role of creditor usually is designed to administrative
authority responsible for supervisory of fulfil certain types of public obligations of
citizens and other entities.
The enforceable title serves as the basis for enforcement. In civil procedure as a
rule, the enforceable title is an enforcement order with an enforceability clause.
These judgements, settlement agreements and official documents meet the
conditions set out above, they constitute an enforceable title with which creditors
can apply direct to the enforcement authority. In administrative enforcement
proceedings an enforceability clause is given by administrative authority.
There are two types of authority are involved in enforcement proceedings.
First, judicial bodies which are designed to control enforcement proceedings (both
in judicial and administrative enforcement proceedings) and to incorporate an
enforceability clause in the enforcement order in civil procedure. More important
for the course of the proceedings are the authorities which may be called as
enforcement authorities.. In the relevant enforcement proceedings, these are
district courts and bailiffs (in civil procedure) or governmental or self-
governmental authorities.
Course of execution of public duties (i.e. taxes, claims or duties) is described
The Act on Administrative Enforcement Proceedings, which was adopted on 17
June 19668. The most important administrative authority are the Chief of Tax Office
(in pecuniary measures) and the Voivod (in non – pecuniary measures). These are
the authorities with the widest range of possibilities of applying of coercive
The Act on Administrative Enforcement Proceedings was adopted on 17 June
1966 and has several amendments during over fifty years of functioning. The Act
constitutes the basis of enforcement proceedings in administration and has been in
force for the last fty years. Polish enforcement authority shall carry out
the enforcement proceedings in a manner resulting in an effective recovery of
creditor's claim against debtor's assets. The enforcement authority on the basis of
submitted by the creditor application for initiation of enforcement proceedings and
7 See: J. Olszanowski, Zbieg egzekucji w sdowym i administracyjnym postpowaniu
egzekucyjnym, Warszawa 2016, p. 15.
8 Polish Journal of Laws (Dziennik Ustaw) from 2018, pos. 1314.
Administrative enforcement proceedings from the comparative … 19
within the jurisdiction of enforcement title. In this framework, he may carry
out enforcement proceedings.
Enforcement authority enforcement action begins with the creditor sending
the enforcement application to the chosen enforcement authority. It is worth
remembering that the enforceable title shall be accompanied by an enforcement
clause. Enforcement clause is an essential element allowing for an effective
initiation and implementation of the enforcement proceedings in Poland as it states
that the enforcement title meets all legal requirements and is suitable for
In the motion for initiation of enforcement proceedings in Poland, the creditor
may indicate several methods of execution action against the debtor taking into
consideration that, out of these methods, he shall implement the least burdensome
for the debtor. In practice it means that out of several enforcement measures, he
shall select the one that results in satisfying the claim and the debtor suffers the
least damage in respect to such action. In a situation when the creditor selects all
methods of execution in the enforcement application (e.g. execution against earned
income, bank accounts, real estate), enforcement authority shall implicitly exercise
these enforcement measures.
If it is not known by the creditor if the debtor's has any assets in Poland, he
may, in the enforcement application or later, order to search for them. In this case
the administrative authority turns to banks, social security office, tax office, land
and vehicle registry. The next stage in the Polish enforcement proceedings is a
seizure of specific property rights. It is enforcement authority obligation to notify
the debtor and the creditor as well as other entities (e.g. bank in case of seizing
assets accumulated in the bank account or the employer in case of seizure of
earned income) about actions taken. In addition, the enforcement authority notifies
parties to the proceedings about any action taken if they were not notified or could
not be present during the said action. Also at the request of the entity concerned
with the case, the bailiff has an obligation to provide all necessary explanations
pertaining to the status of the case.
Enforcement of pecuniary claims i.e. arising from: movable assets,
remuneration for work or bank accounts, bank accounts, other property rights. The
most burdensome for the debtor is execution from real estate9. Enforcement of
pecuniary claims i.e. arising from fine to coerce to act of the debtor, perform the
irreplaceable act at the debtor’s expense, hand over of movable property and hand
over of immovable property10.
In Israel, judgments of the courts and administrative authorities can be
enforced by the Execution Office which is equivalent to Polish enforcement
9 See more: J. Olszanowski, P. Ostojski, W. Pitek, Egzekucja wiadczen pieninych, Warszawa
10 See more: J. Olszanowski, Egzekucja obowizków niepieninych, Warszawa 2014, p. 26 – 27.
authority. The enforcement process is regulated generally by the Execution Law11,
enacted in 1967, which replaced the Ottoman Temporary Law on Enforcement and
by the English Ordinance to Amend the Law with Regard to Imprisonment for
Debt. As in most legal systems, the enforcement process in Israel begins with the
opening of a file in the Execution Office. Certain types of debts are outside the
sphere of the enforcement office, such as taxes, which have their own track for
enforcement, which is described in Tax (Collection) Ordinance12. Taxes are
included in the bankruptcy procedure.
The enforcement proceedings pertains to any debt expressed in a legally
binding document, referred to by law as a "title of enforcement”. In Israel, there are
various types of titles of enforcement, including judgments (in civil, labor, or
family matters), pledges, bills of exchange, as well as private documents of up to
NIS 50,000 which were recently added to this category.
The Israeli Execution Office or the administrative authority have broad powers
to enforce judgments, including the ability to issue an order of imprisonment
against a judgment debtor that has not paid his judgment debt. If a defendant fails
to comply with an injunction or order for specific performance, the plaintiff can
request that the Court initiate contempt proceedings against the defendant
pursuant to the Contempt of Court Ordinance. In contempt proceedings, the Court
may impose sanctions on the defendant until he complies with the judgment. Such
sanctions include daily fines or imprisonment.
According to the Execution Law of Israel, a magistrate court judge is
responsible for the Chief Enforcement Officer (CHEO) – a part of Execution Office.
A belief gaining much popularity in Israel is that the system can be made more
efficient, and can provide better solutions for creditors, by defining the function of
the CHEO as solely administrative. As a result, the CHEO deals not only with
enforcement measures with respect to the property of the debtor (i.e. direct
enforcement), but also against the debtor himself (indirect enforcement). As a
result, the CHEO actually fulfills three functions: in addition to being judge of
enforcement (his natural function), he is also judge of contempt and judge of
insolvency (without being a judge of bankruptcy).
It is only within the framework of direct enforcement that the CHEO assumes
the role of a judge of enforcement, although the majority of activities related to
direct enforcement are not carried out by the CHEO but rather by the Receiver and
the Enforcement Officer. The CHEO has judicial discretion regarding direct
enforcement in two areas: supervision of those who carry out the attachment, and
determination of the scope of exempted property. Concerning most of the tasks
involved with direct enforcement, we can roughly define the CHEO as an
11 The Execution Law, 5727-1967, 21 LSI 112 (1966-67), as amended in 1968.
12 Hukei Eretz Yisrael, ch. 157, at 1374, 1929 see more: P. Lerner, Chief Enforcement Officer and
Insolvency in Israeli Law, Theoretical Inquiries in Law 7.2 (2006), p. 566.
Administrative enforcement proceedings from the comparative … 21
"administrator" of the procedure, not as a "true" judge. The CHEO becomes a real
adjudicator when he deals with indirect enforcement and, more particularly, with
the power to limit the freedom of the debtor via imprisonment13. Indirect
enforcement should be made possible only where direct enforcement is not
possible. It is ultima ratio enforcement method and Section 8 of the Execution Law
establishes the need to avoid extreme measures. However, this section is
insufficient and is rarely used by the courts. In Israel, the debtor is personally liable
for the payment of the debt, empowering the creditor to ask for an order of arrest
against the reluctant debtor. Both the Israeli judiciary and Israeli legal scholarship
have strongly criticized personal enforcement as being against the debtor’s basic
In Israel administrative agencies cannot impose civil penalties to enforce their
decisions, but rather must apply to the judiciary, appearing as an adversary party
to request imposition of the penalty. This is not, in itself, surprising; agencies, after
all, exist within the executive component of the larger government, which itself
must apply to the judiciary to enforce its decisions. Most agencies cannot apply
directly to the judiciary for enforcement of obligations which sources in their
decisions, but rather must rely on another agency to appear on their behalf14.
Israeli courts and doctrine have traditionally stressed the importance of
efficiency, although it is doubtful whether this rhetoric of efficiency has been
accompanied by a corresponding policy of enforcement implemented by the
legislature; the latter has fallen short of affording an efficient statutory
arrangement15. In addition to the technical side of efficiency — which is still
complex despite the recent computerization of the enforcement system — there is
at least one structural aspect of the enforcement procedure that is clearly at odds
with efficiency16.
The similarity between Polish and Israeli enforcement proceedings system
consist in direct enforcement as that directed towards the property of the debtor, via
attachment, garnishment, and/or sale of his assets. However, in Israel apart from
direct enforcement indirect enforcement is carried out via personal availability,
which materializes in imprisonment of the debtor in order to force him to fulfill the
judgment and pay the obligation. Imprisonment is not the only method of indirect
13 P. Lerner, Chief Enforcement Officer and Insolvency in Israeli Law, Theoretical Inquiries in
Law 7.2 (2006), p. 567
14 E. L. Rubin, Administrative Litigation and the Rule of Law in Israel and the United States: A
Comment on Lawyering for the Rule of Law, Jerusalem Review of Legal Studies, Vol. 11, No. 1 (2015),
p. 26.
15 Ron Harris, From Imprisonment to Discharge: Setting an Agenda for Reform in Debtor-
Creditor Law, 23 Tel-Aviv U. L. Rev. 641, p. 238; E. Brosh, Cutting Corners or Enhancing Efficiency,
Erasmus Law Review, Vol. 8, No. 4, 2015 p. 200.
16 P. Lerner, Chief Enforcement Officer and Insolvency in Israeli Law, Theoretical Inquiries in
Law 7.2 (2006), p. 571.
enforcement. The prohibition of leaving the country may be seen in certain
circumstances not only as based on the need to protect the interest of the creditor in
collecting his money but also as a way of putting pressure on the debtor. Likewise,
the confiscation of driver’s licenses, a measure that has been raised as an alternative
to direct enforcement, belongs in this category as well. The central rule regarding
debtor imprisonment appears in section 70 of the Execution Law, which replaced
section 131 of the earlier Ottoman law. Section 70 provides that the creditor may ask
for an imprisonment order of seven days should the debtor evade the payment of
the debt, should he not pay the sum established by the CHEO in a payment order, or
should he not appear before the CHEO to establish a monthly sum to be paid, after
receiving a warning of impending enforcement.
P. Lerner emphasized that the legislature stressed in the very title of the
section that the imprisonment is not for the non-payment of the debt, but rather
due to “contempt of enforcement”. The use of this term is relatively new. In the
original text of the law, the title of the section was straightforward - "Imprisonment
of Judgment-Debtor for Non-Payment”. The Execution Law was reformed after the
one of the decisions of the Supreme Court in 1992, in which the imprisonment rule
was declared void. Arrest was brought back, though in a more moderate way: up
to seven days for each imprisonment order and in no case more than thirty days
altogether. In cases of maintenance orders the imprisonment is up to twenty-one
Moreover, tax evasion is a criminal offense. Ministry of Finance of Israel claims
that the tax evader violates the state's laws, and commits a moral offense against
each and every member of society who contributes his share and pays his taxes.
The tax evader enjoys the rights and public services granted and provided by the
state, and funded by taxpayers' money, without sharing the common burden.
Thus, the tax offender takes advantage of those who pay their taxes duly.
Furthermore, the tax evader steals money from the public fund and harms the
state's capability of providing basic services to its citizens18.
There is no possibility to become the statistical data about the effectiveness of
enforcement proceedings in Israel. In Poland the effectiveness of enforcement
proceedings (both judicial and administrative) is on the level of 15-20%19. Taking
into account the same enforcement measures it is possible to reassume that course
of the administrative enforcement proceedings in practice is similar in Poland and
17 P. Lerner, Chief Enforcement Officer and Insolvency in Israeli Law, Theoretical Inquiries in
Law 7.2 (2006), p.
18 px.
19 More see: K. Celiska-Grzegorczk, J. Olszanowski, W. Pitek, A. Skoczylas, Ochrona jednostki
a efektywnoć administracyjnego postpowania egzekucyjnego [in:] T. Jdrzejewski, M. Masternak,
P. Rczka (Ed.) Ochrona praw jednostki w postpowaniu egzekucyjnym w administracji, Toru 2018,
p. 231 – 232.
Administrative enforcement proceedings from the comparative … 23
3. Judicial supervision over activities of enforcement authorities
The development of administrative law in Israel reflects the history of the
country, which evolved from a struggling for independence in 1948, to the
democratic welfare state of today. It was administrative law, more than any other
branch of law, that throughout this period delineated the proper role of the
government and the scope of human rights protection. Administrative law had this
function because during this period Israel had no written constitution. Thus, the
protection of human rights against governmental intrusion was a byproduct of
judicial review of administrative action20
In Israel, as in many other Western legal systems, there is a growing trend to
put specific legal issues in the hands of specific administrative tribunals which are
designed to fulfill important quasi-judicial functions. However, the judicial system
of Israel still consists of secular courts and religious courts. The law courts
constitute a separate and independent unit of Israel's Ministry of Justice. The
system is headed by the President of the Supreme Court and the Minister of
Justice. The older and more common kind of administrative tribunal is that
designed to operate as an appeal tribunal of administrative agencies determining
social benefits, tax liability, or compensation from injury. More recently, the
Knesset has established tribunals which have a much broader set of quasi-judicial
functions. Thus, the Standard Form Contracts Tribunal considers actions brought
regarding unfair terms in standard-form contracts, and the Restrictive Trade
Practices Tribunal plays an important role in ruling on the entire range of
uncompetitive practices.
The Supreme Court supervises all the tribunals or courts outside the general
law courts, guaranteeing that each of these special institutions is not completely
separate from the regular judicial system. Supervision comes either by way of
appeal or through petition to the High Court of Justice. The Basic Law: The
Judiciary grants the Supreme Court, sitting as the High Court of Justice,
jurisdiction to order Law Courts, Tribunals and bodies and persons having judicial
or quasi-judicial powers under law to hear, refrain from hearing, or continue
hearing a particular matter, or to void a proceeding improperly taken or a decision
improperly given. The same section gives the High Court of Justice more limited
authority in relation to religious courts. The Israeli Supreme Court is often
discussed in studies comparing court activism and judicial protection of human
and civil rights21.
20 A. Barak, 'Constitutional law without a constitution: the role of the judiciary', in S. Shetreet
(ed.), The Role of Courts in Society, 1988, p. 448; A. Maoz, 'Defending civil liberties without a
constitution: the Israeli experience' (1988) 16 Melbourne U.L.Rev. 815; I. Zamir, 'Rule of law and civil
liberties in Israel' (1988) 7 Civ. J. Q. 64; E. Benvenisti, Introduction to Israeli Administrative Law, 2
Eur. Pub. L. 194 (1996), p. 194.
21 More about judicial system of Israel see:
The administrative court system in Poland is of two instances and comprises
province administrative courts and the Supreme Administrative Court, according
to art. 175 and 184 of Constitution of Republic of Poland. Administrative courts
exercise control over administrative activity including decisions and certain
administrative provisions, local laws and other acts or state administrative
activities concerning powers or obligations arising from law22. Administrative
courts also hear complaints against inactivity or delay of administrative
authorities. Moreover in Polish legal system there is a Constitutional Tribunal is an
independent body which hears only constitutional issues. Administrative courts in
Poland control the activities of public authorities. The administrative court verifies
a decision, order, or the like in terms of its legality - whether the decision of
a public authority complies with generally applicable law. Moreover,
administrative courts adjudicate complaints concerning especially decisions or
orders issued in enforcement and security proceedings which can be complained
against and acts of the public administration other regarding legal rights or
obligations of entities. In the literature it is emphasized that almost There is a
possibility of complaint of delay of administrative enforcement authority. This is
the right which should protect the creditor or other entities which are interested in
effective course of the administrative proceedings.
Polish and Israeli legal systems are different, because of the history of the state,
political situation and the influence of the religious communities. In Poland it is
easy to discover the influence of the German and Austrian legal basis. Polish has a
system of civil law which is founded on the principles laid out by the Constitution
from 1997, though many of the most important laws, for example most regulations
of the administrative proceedings code) were developed prior to the 1997
constitution. Israeli law is based mostly on a common law legal system, though it
also reflects the diverse history of the territory of the State of Israel throughout the
last hundred years (which was at various times prior to independence
under Ottoman, then British sovereignty), as well as the legal systems of its
major religious communities.
Enforcement law is quite similar, despite the abovementioned differences. As
in Poland as in Israel there are two ways of execution of legal duties (civil or
administrative). There is also a possibility of judicial control of enforcement
authority. The distinguished feature of execution law in Israel is possibility of
imprisonment of debtor. However, in practice this type of measure during the
enforcement proceedings is more theoretical possibility than to implement in
22 See more: D.C. Dragos, M. Swora, A. Skoczylas, Administrtive appeals in Romania and Poland
– a topical comparative perspective, Transylvanian Review of Administrative Sciences, No. 37 E/2012,
pp. 38-54
Administrative enforcement proceedings from the comparative … 25
practice. The most crucial in Israeli legal system is to improve the efficiency of
enforcement proceedings. The Polish system of administrative execution (as well
as court enforcement) is extensive and casuistic23. A lot of attention is paid to
ensuring the debtor's rights. This does not always affect properly the effectiveness
of enforcement proceedings. The problem is also the possibility of challenging a
number of orders issued in the course of administrative enforcement proceedings
to the Voivodship Administrative Court. It should be noted that it opens the
possibility to submit a cassation complaint to the Supreme Administrative Court. It
may affect the efficiency of the executions of the sensu largo. The most important
issue is to balance between the rights of debtor and creditor. Nevertheless the
debtor is an entity that does not voluntarily perform legal obligations. Therefore,
while the execution is carried out in accordance with the law, there should be the
possibility of limiting the possibility of appealing against certain actions of
administrative authorities performing during proceedings. This is the result of
statement execution is usually carried out on the basis of an already issued
judgment (court or administrative body).
23 P. Przybysz, Postpowanie egzekucyjne w administracji. Komentarz, Warszawa 2011, s. 19-20; R.
Hauser, Z. Leoski, w: R. Hauser, A. Skoczylas (red.), Postpowanie egzekucyjne w administracji.
Komentarz, Warszawa 2014, s. 8-9. W. Chrócielewski, in: W. Chrócielewski, J. P. Tarno, Postpowanie
administracyjne i postpowanie przed sdami administracyjnymi, Warszawa 2011, s. 290-291.