Judicial enforcement in Syria: how does a creditor recover what is owed?

Enforcement is among the most important stages in securing a creditor’s right, whether that right is established by a court judgment or by another enforceable instrument. Below are the principal practical questions on direct enforcement, enforceable instruments, executory attachment, and the case of a company that has ceased operating.

When does a creditor resort to direct enforcement, and when is a court claim required?

A creditor resorts to direct enforcement where they hold an instrument that is enforceable under the law and the right is established and due, so that no fresh claim is needed to prove the underlying right.

Where no instrument fit for direct enforcement exists, and the creditor’s right still requires proof or remains disputed, the legal route is to bring a court claim to obtain a judgment that can be enforced once it acquires enforceable character.

What is an enforceable instrument, and what qualifies as one?

An enforceable instrument is a document that entitles its holder to go directly to the enforcement department, without bringing a fresh claim to establish the right, provided it satisfies the legal conditions for enforcement. Examples that may serve as a basis for enforcement, depending on the nature of the instrument and its satisfaction of the legal conditions:

• Court judgments that have become final.
• Judgments or decisions that are enforceable on an expedited basis under the law.
• Mortgage contracts, in the cases where the law permits their enforcement.
• Commercial instruments, including the bill of exchange, where they satisfy their legal conditions.
• A fixed-term lease, in the cases where the conditions for direct enforcement are met.
• A trust instrument, after the necessary legal steps are taken, including service of notice through the notary public and confirming that no dispute or denial exists regarding it, according to the instrument’s legal position.

It is important to stress here that the mere existence of a written document does not necessarily make it an enforceable instrument: its nature must be verified, along with the legal conditions permitting its direct enforcement.

What is the executory attachment procedure, step by step?

1. Enforcement usually begins by opening an enforcement file with the competent enforcement department, attaching the enforceable instrument and the power of attorney, together with the particulars and address of the party against whom enforcement is sought.
2. The party against whom enforcement is sought is then notified of the instrument and called upon to comply, and is allowed the prescribed statutory period after service to pay or perform.
3. If the debtor does not comply within the statutory period, the creditor may apply for executory attachment over the debtor’s assets, movable or immovable, to the extent sufficient to satisfy the debt and the enforcement costs, providing what is needed to establish ownership of the assets to be attached.
4. If non-compliance continues, the sale of the attached assets by public auction begins, following the procedures and stages the law prescribes.

Reaching public auction is therefore not immediate: it passes through several legal steps, beginning with opening the enforcement file, service and attachment, then completing the necessary procedures through to sale by public auction and recovery of the creditor’s right.

What are the enforcement departments and their levels, and how long does enforcement take?

The enforcing body and its procedures differ according to the nature of the right and of the enforceable instrument. The principal types of enforcement are:

• Civil enforcement, which covers civil enforcement, magistrate enforcement, enforcement of mortgages, commercial enforcement and enforcement of instruments.
• Criminal enforcement.
• Sharia enforcement.

Public auction may constitute a second level in some enforcement cases, and cannot necessarily be regarded as a separate level in every type of enforcement.

As for duration, there is no single period that can be stated for all enforcement files: it varies with the nature of the instrument, the type of asset to be enforced against, the presence of disputes or objections, the speed of procedure at the enforcement department, and other practical circumstances. Enforcement time can therefore be estimated case by case, and no uniform period can be given that applies to every file.

What does a creditor do if the debtor company has ceased operating?

A distinction must be drawn between a company ceasing to operate and its legal personality coming to an end. That a company has stopped carrying on its activity does not necessarily mean it has ended in law: it may remain in existence as a legal person, so the creditor may in principle sue the company, demand their rights from it, and take legal and enforcement steps against it as the case requires.

If, however, the company has ended in law — for instance by entering dissolution or liquidation, or by being struck off — the legal position differs according to the reason the company ended and the stage the dissolution, liquidation or striking-off has reached. In these cases the company’s precise legal position must be established first, and only then the appropriate legal route for the creditor to claim their right, whether against the company or within the liquidation proceedings, according to each case.

In summary

Effective enforcement does not begin at attachment or auction. It begins with confirming that a valid, enforceable instrument exists and identifying the appropriate legal route for claiming the right. Verifying the debtor’s legal position — particularly where the debtor is a company that has ceased operating or is in dissolution and liquidation — is likewise among the essential steps a creditor should take before commencing procedures, so as to avoid wasting time and effort on a legal step that does not fit.