HEROLD TELE MEDIA, S.R.O., AND OTHERS v. SLOVAKIA

THIRD SECTION

DECISION

Application no. 57238/00
HEROLD TELE MEDIA, S. R. O., IVAN MATUŠÍK AND GÜNTER SCHUSTER
against Slovakia

The European Court of Human Rights (Third Section), sitting on 6 November 2012 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 13 April 2000,

Having regard to the decision of 28 September 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the first and second applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, HEROLD TELE MEDIA s.r.o., is a private limited company, which was established under Slovakian law in 1997, and has its registered office in Bratislava (Slovakia).

The second applicant, Mr Ivan Matušík, is a Slovak national, who was born in 1956 and lives in Kittsee (Austria). He is the statutory representative of the first applicant and owns a share in it, as well as in the company that owns the other share in the first applicant.

The third applicant, Mr Günter Schuster, is an Austrian national, who was born in 1956 and lives in Vienna (Austria).

2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

3. As a self-employed entrepreneur, the second applicant used to operate under the business names IMCO – Herold Business Data and EURO INCO. On 19 October 1990 and 20 November 1992 respectively, he signed, under the former name, a contract and an amendment to that contract (“the contract”) with a State-owned enterprise.

4. The State-owned enterprise was later transformed and denationalised, changed its corporate name, and is now the biggest multimedia operator on the Slovak market, co-owned by a German investor (51%) and the Slovak State (49%). For ease of reference, henceforth in this decision the second applicant’s contractual partner and its legal successors are referred to as “the defendant”. It is the applicants’ contention that, by way of succession, the contract has been binding upon the defendant in its corporate form and identity as at the relevant time.

5. The subject matter of the contract was the publishing of telephone directories by the second applicant on the basis of data supplied by the defendant during an agreed period of time in return for a fee. The parties agreed that a breach of contract by either of them was subject to a contractual penalty defined on the basis of an exponential formula.

6. While it is not entirely clear whether and, if so, to what extent the contract has ever been performed, the contract and especially its penalty mechanism have given rise to a number of different claims, which have been traded among various individuals and entities and made before various bodies.

7. In particular, amongst many others, the second applicant, as IMCO – Herold Business Data, instituted proceedings against the defendant before the State Arbitration Court (Štátna arbitráž) in Bratislava, which ultimately resulted in a judgment of the Supreme Court (Najvyšší súd) of 19 March 1992 acknowledging the legally binding nature of the contract, as opposed to a mere preparatory arrangement, and ordering the defendant to refrain from unlawful actions in relation to the performance of the contract. No position was taken as to the compensation and penalty mechanisms under the contract.

8. Another action by the second applicant, as IMCO – Herold Business Data, resulted in a judgment of the Bratislava City Court (then mestský súd, at present Krajský súd) of 12 October 1992 ordering the defendant to provide the second applicant with the data required for the discharge of his side of the contract. No position was taken as to the compensation and penalty mechanisms under the contract.

9. A further claim by the second applicant, as IMCO – Herold Business Data, against the defendant for the payment of the equivalent of some 2,100,000 euros (EUR) by way of compensation for damage resulting from its failure to comply with the contract resulted in an in-court settlement, approved by the City Court on 16 February 1993, pursuant to which the defendant agreed to pay the second applicant the equivalent of some EUR 465,000.

10. According to a handwritten document submitted by the second applicant, which purports to be a summary of his meeting with the director of the defendant on 5 January 1994 and which bears two illegible signatures, at that meeting the director had expressed the belief that nothing would hamper their further cooperation in the performance of the contract. He had proposed, in the interest of giving the agreement additional weight, that the “judicial power of moderation” in respect of the contract be suspended, to which the second applicant had agreed.

11. On 16 January 1996 the first applicant’s predecessor asked the City Court to start settlement proceedings (dohodovacie konanie), within the meaning of Article 4 et seq. of the Bankruptcy Code of 1991 (Law no. 328/1991 Coll., as applicable at that time), in respect of the defendant. It was argued that the defendant had failed to comply with its contractual obligations in respect of several creditors and that its debt under the contract exceeded twice its registered capital.

The proceedings were discontinued with final effect on 24 July 1998 on the basis of section 2 of Law no. 292/1996 Coll., which had entered into force on 16 October 1996. It provided for the termination of proceedings in respect of petitions filed under the 1991 Bankruptcy Code in instances where no insolvency order had been issued, provided that the alleged debtor was an entity subject to the Strategic State Interests in Privatisation Protection Act (Law no. 192/1995 Coll., as amended – Zákon o zabezpečení záujmov štátu pri privatizácii strategicky dôležitých štátnych podnikov a akciových spoločností).

However, in the course of the proceedings, in accordance with the relevant provisions of the 1991 Bankruptcy Code, certain creditors had purportedly appointed an individual, Mr F. Eke, as a new director of the defendant with the authority to act in the defendant’s name. His actions in this capacity included acknowledging the defendant’s debt to the first applicant and signing a number of promissory notes in favour of the first applicant and other parties for large sums of money.

12. On 14 June 1999 the second applicant, as EURO INCO, assigned part of his claims under the contract to the first applicant. The deed of assignment indicated that the title assigned corresponded to the equivalent of nearly EUR 110 million.

13. Meanwhile, an unrelated company had petitioned for the bankruptcy of the second applicant and on 30 June 1999 a bankruptcy order was issued. Subsequently, on 11 August 1999, the defendant registered a claim in the second applicant’s bankruptcy proceedings, which partly concerned a financial penalty under the contract. The bankruptcy proceedings are still pending.

14. On 12 October 1999 a new piece of legislation entered into force (Law no. 253/1999 Coll.), abolishing the Strategic State Interests in Privatisation Protection Act.

15. On 20 November 2002 another unrelated company transferred to the third applicant its financial claim against the defendant. This claim related to a failed contractual relationship concerning the broadcasting of Radio CD International from Slovakia.

2. Impugned proceedings

16. On 21 June 1999 the first and second applicants filed a petition with the Bratislava Regional Court (Krajský súd) for an insolvency order against the defendant. They claimed that the defendant owed more than the equivalent of EUR 9,784,000,000 for its failure to comply with the terms of the contract. Since the registered capital of the defendant amounted to the equivalent of some EUR 456,000,000, it was claimed that the defendant was clearly over-indebted (predlžený).

17. The first applicant later restated its insolvency petition and the first and second applicants unsuccessfully requested both the Regional Court and the Prosecutor General to institute proceedings before the Constitutional Court (Ústavný súd) with a view to examining the conformity of Article 67 § 4 (c) of the 1991 Bankruptcy Code with the Constitution (Constitutional Law no. 460/1992 Coll., as amended). Under that provision, an insolvency order could not be issued against debtors specialised in the area of transportation and communications with essential strategic economic importance, unless the Cabinet consented.

18. Meanwhile, in September 1999, the Regional Court had obtained an opinion from the Ministry of Post, Transport and Telecommunications on the way in which Article 67 § 4 (c) of the 1991 Bankruptcy Code applied to the defendant. According to the Ministry, the defendant fell within the ambit of that provision and the authorities did not intend to waive the protection it afforded. The Regional Court obtained a similar opinion from the Ministry on 13 March 2000, further to a request which had first been sent to the Prime Minister and then transferred to the Ministry.

19. On 30 March 2000 the Regional Court discontinued the proceedings. It referred to Article 67 § 4 (c) of the 1991 Bankruptcy Code and found that the defendant fell within the scope of this provision and that the Cabinet had not given its consent to an insolvency order against it.

20. On 16 March 2001, following appeals (odvolanie) lodged by the first and second applicants – the latter had been joined in his appeal by his bankruptcy receiver – the Supreme Court quashed the first‑instance decision. It found that the Regional Court had committed a procedural error in discontinuing the proceedings. Even if the conditions laid down in Article 67 § 4 (c) of the 1991 Bankruptcy Code had been met, the first‑instance court should have dismissed the petition rather than discontinuing the proceedings.

21. On 5 April 2000 the Regional Court judge in charge of the case reported to the administration of the court on the developments in and state of the proceedings, including the fact that she had no intentions of granting the applicants’ request to institute proceedings in the Constitutional Court for review of the constitutionality of the provisions of Article 67 § 4 (c) of the 1991 Bankruptcy Code. Moreover, she observed that there was no indication in the case file that the applicants had asserted their claims in the ordinary way or that an insolvency petition was the only way left for them to do so.

22. On 9 May 2001 the third applicant also filed an insolvency petition in respect of the defendant. He alleged that the defendant had failed to repay him the equivalent of EUR 116,000,000 under the terms of the promissory note referred to above, which the first applicant had in the meantime transferred to the third applicant.

The third applicant was then informed by the Regional Court judge in charge of the proceedings that his petition would be examined in the context of the proceedings initiated by the first and second applicants.

23. On 15 June 2001 the second applicant further specified his claim in that he also wished to rely on a promissory note issued by the defendant that had not been honoured.

24. On 30 August 2001, in response to a request by the defendant, the Telecommunications Office submitted observations to the Regional Court, expressing the view that the defendant fell within the above‑mentioned statutory category of “essential strategic economic importance”.

25. In a letter of 12 November 2001 to the President of the Regional Court, the State Secretary of the Ministry of Justice requested an inquiry into whether the proceedings were going smoothly. The letter stated that the request had been prompted by a letter from the chair of the board of directors of the German shareholder in the defendant, and reference was made to the President’s powers under the State Administration of Courts Act (Law no. 80/1992 Coll., as amended).

In her reply of 22 November 2001, the President relied on section 17(1) of the State Administration of Courts Act and informed the State Secretary of the previous developments and the current status of the proceedings. She also referred to a statement by the judge in charge of the proceedings as containing “certain legal opinions and intended steps [of that judge]”, which the President had sent to the State Secretary on 16 November 2001 by fax.

26. On 29 January 2002 the Regional Court dismissed the insolvency petitions of all three applicants. It noted that, pursuant to a newly enacted piece of legislation, the defendant no longer fell within the category of debtors protected under Article 67 § 4 (c) of the 1991 Bankruptcy Code.

27. The Regional Court also noted that the defendant had contested all of the applicants’ claims, both in principle and as to the amount, and that, in the defendant’s submission, various aspects of those claims were subject to pending litigation.

28. The Regional Court held that, in order for an insolvency petition to succeed, the creditors’ title must be unequivocally established, at least in part. However, as the applicants had failed to substantiate their claims in a reliable and credible manner, they had lacked the required standing to petition for the defendant’s insolvency. It was thus found unnecessary to examine other statutory conditions for declaring the defendant insolvent and, with reference to Article 66a § 2 of the 1991 Bankruptcy Code, to hold a hearing.

29. The applicants appealed. They argued, inter alia, that their claims in respect of the defendant had been clearly established, for example in the Supreme Court’s decision of 19 March 1992. The defendant had expressly acknowledged the validity of the contract, in that it had submitted, in the context of bankruptcy proceedings instituted in respect of the second applicant, a claim based on the provisions of the contract.

30. On 13 August 2002 the Supreme Court upheld the Regional Court’s judgment of 29 January 2002. The relevant part of its decision reads:

“The existence of the plaintiff’s claim against the debtor must be unequivocally shown in a[n] [insolvency] petition. It is not the purpose of bankruptcy proceedings to establish the existence of claims which are contested. A court [dealing with an insolvency petition] takes more extensive evidence only in respect of facts which are decisive for the examination of compliance with the material conditions laid down in Article 1 §§ 1, 2 and 5 of the 1991 Bankruptcy Code, that is, whether a debtor is insolvent. A creditor must demonstrate his or her right to petition for adjudication of insolvency, that is, compliance with procedural requirements, in a manner which does not require the taking of further evidence of the existence of his or her claim. On the basis of the file, documentary evidence, and previous judicial proceedings, the [applicants]’ claims cannot be considered as proven and undisputed without taking further evidence; this also follows from the [applicants]’ appeals in which they proposed that additional evidence be taken ... The taking of evidence to determine whether a plaintiff has a legal title justifying his status as a creditor cannot be carried out in the context of bankruptcy proceedings.”

31. With reference to Article 214 § 2(c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended), the Supreme Court decided without hearing the parties. The relevant Chamber was presided over by Judge A.

32. On the same day, namely 13 August 2002, the first applicant submitted a challenge of bias against Judge A. According to a date‑stamp of the Supreme Court’s registry, the challenge was submitted at 2.10 p.m.

33. The first applicant argued that Judge A. had previously been involved in the above–mentioned settlement proceedings, in which she had acted contrary to the law.

34. In a letter of 26 September 2002 the Supreme Court informed the first applicant that its challenge of 13 August 2002 had been submitted after a decision had been taken by the Supreme Court earlier the same day. The first applicant was accordingly invited to say whether, in these circumstances, it wished to maintain the challenge; a failure to reply would be construed as a withdrawal of the challenge. According to a handwritten note of 15 October 2002 in the Regional Court’s case file, the first applicant had informed the court on 2 October 2002 that it would not maintain its challenge.

35. Nevertheless, the applicants appealed on points of law (dovolanie), arguing that the judges involved had been biased and that the applicants had had no possibility of commenting on the evidence in the appeal proceedings as the courts had examined the case in their absence and under undue influence by Slovakian and German officials. More specifically, Judge A., who had decided in three earlier cases concerning the defendant, should have been excluded from the appeal proceedings. The courts had decided arbitrarily, disregarding the facts of the case. In particular, in its decision of 19 March 1992, the Supreme Court had confirmed the validity of the contract and the representatives of the defendant had based their claims on its provisions in the context of the bankruptcy proceedings against the second applicant.

36. On 24 March 2004 the Supreme Court (Cassation Division) dismissed the appeals on points of law. It held that the lower courts’ decision to dispense with a hearing was in keeping with the relevant provisions of Slovakian law. The request for the exclusion of Judge A. had been submitted on 13 August 2002 at 2.10 p.m., whereas the Chamber had determined the appeals that morning. In any event, the argument that a judge had decided in previous proceedings concerning the same parties did not suffice to exclude him or her for bias. Lastly, the Supreme Court found no indication that the public authorities and officials had influenced the lower courts’ decision on the matter at issue.

37. With reference to Article 243a § 3 of the Code of Civil Procedure, the Supreme Court decided the appeals on points of law without hearing the parties.

3. Constitutional proceedings

(a) Applicants’ complaints of December 2002

38. In December 2002 the applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. They alleged a violation of their right under Article 6 § 1 of the Convention to a fair hearing in the proceedings leading to the Supreme Court’s decision of 13 August 2002. The complainants also invoked Articles 13, 14 and 17 of the Convention. In particular, they complained that the ordinary courts had not heard the parties and had decided in their absence. Their decisions had been arbitrary. The ordinary courts involved had been put under pressure by Government officials and the Ambassador of Germany to Slovakia. Lastly, the plaintiffs alleged that the judges involved had been biased.

39. The Constitutional Court declared the complaint inadmissible on 26 February 2003. The decision stated that the applicants should have lodged an appeal on points of law and that, in any event, they were free to file a fresh petition for adjudication of the defendant’s bankruptcy.

(b) Third applicant’s complaint of 2 August 2004

40. On 2 August 2004 the third applicant complained under Articles 6 § 1, 13, 14 and 17 of the Convention about the proceedings before the ordinary courts leading to the Supreme Court’s decision of 24 March 2004. He alleged, in particular, that the courts had not held a hearing; that the judges involved had been biased as they had been susceptible to pressure by the Slovakian public authorities and the Ambassador of Germany to Slovakia; and that Judge A. should have been excluded, as a challenge on grounds of bias had been submitted.

41. The Constitutional Court declared the complaint inadmissible on 14 September 2004. As regards the decisions of the first-instance and appeal courts, the Constitutional Court referred to its decision of 26 February 2003 (see paragraph 39 above). It noted that the complainant still had the possibility of filing a fresh petition for insolvency. The protection of his right was therefore primarily within the jurisdiction of the ordinary courts.

(c) First and second applicants’ complaints of 3 August 2004

42. On 3 August 2004 the first and second applicants complained that in the proceedings leading to its decision of 24 March 2004, the Supreme Court had breached their rights under Articles 6 § 1, 13, 14 and 17 of the Convention. They also complained that the Government of Slovakia and the Ministry of Justice had acted contrary to Articles 1 and 2 § 2 of the Constitution, under which the Slovak Republic is a State governed by the rule of law and State authorities are to act exclusively in accordance with the Constitution and in a manner laid down by law.

The complainants also alleged that the Supreme Court had decided in an arbitrary manner without hearing the parties. The courts involved had lacked impartiality owing to pressure exercised, in particular, by the Ministry of Justice and the Slovak Government. Judge A. should have been excluded, as a challenge on grounds of bias had been submitted against her.

43. The Constitutional Court declared the complaint inadmissible on 8 December 2004. Referring to the case file, the applicants’ submissions and the lower courts’ decisions, the Constitutional Court concluded that the Court of Cassation had considered the plaintiffs’ objections in their entirety. The decision complained of had been neither unsubstantiated nor arbitrary.

The Supreme Court had decided without hearing the parties in accordance with the relevant provisions of the Code of Civil Procedure. It had determined exclusively questions of law on the basis of the case file and documents submitted by the petitioners. Determination of those questions did not require an oral hearing to be held. Furthermore, the applicants had been aware of the relevant law and had not shown that they had asked for an oral hearing to be held in the course of the proceedings at the lower levels of jurisdiction.

The Constitutional Court accepted the Supreme Court’s conclusions as regards the applicants’ objections to Judge A. Furthermore, the applicants had not shown that they had been prevented from challenging that judge.

Lastly, the complaints in respect of the Cabinet and the Ministry of Justice had been lodged out of time and also fell short of other formal requirements.

4. Subsequent developments

44. On 11 March 2003 the first and second applicants lodged a further insolvency petition against the defendant, relying on similar arguments to those outlined above.

45. On 9 November 2004 the Regional Court dismissed the petition on the grounds that the claim had not been properly substantiated in that merely the amendment to the original contract had been submitted, rather than a copy of the contract itself. However, on 15 December 2004 the Supreme Court quashed that decision on appeal, referring to the previous proceedings and the courts’ conclusion that the applicants’ claims had not been established. The Supreme Court found that no new relevant facts had been submitted and that, accordingly, the first-instance court should have decided on the merits of the fresh petition on the basis of the final decision dismissing the previous petition.

46. The case was remitted to the Regional Court, which eventually dismissed the fresh petition on 8 August 2011, as instructed by the Supreme Court. The Regional Court held specifically that the alleged claims against the defendant were disputed and that it was not within the jurisdiction of a bankruptcy court to take and examine evidence with a view to establishing whether such claims were valid and, if so, their scope.

No appeal was lodged and the decision became final and binding on 24 June 2011.

5. Other facts relied upon by the applicants

47. In connection with the facts of the case, there was communication among the authorities and entities involved, including the defendant, the German investor, the Ambassador of Germany to Slovakia, the Prime Minister of Slovakia, the Ministry of Justice of Slovakia, the Ministry of Post, Transport and Telecommunications of Slovakia, the Telecommunications Office of Slovakia and the Anti-Monopoly Office of Slovakia. Internal analytical reports were also drawn up and meetings were held.

48. Criminal complaints were lodged against the second and third applicants, and the second applicant was convicted of having insulted public authorities. In addition, a petition was filed with a court with a view to having his legal capacity to act restricted.

49. The applicants also submitted that the intelligence services of Slovakia and Germany had carried out activities aimed at preventing a fair determination of the case.

B. Relevant domestic law

1. Code of Civil Procedure

50. Article 7 of the Code of Civil Procedure defines the jurisdiction of the ordinary courts. It provides:

“1. Courts in civil proceedings shall examine and decide disputes and other legal matters which stem from relations under civil law, labour law, family law, commercial law and economic law, provided that an Act of Parliament does not confer jurisdiction on other authorities.

2. Courts in civil proceedings shall also review the lawfulness of decisions of public administrative authorities and the lawfulness of decisions, measures and other actions taken by public authorities, provided that an Act of Parliament does not confer jurisdiction on other authorities.

3. Other matters may be examined and decided upon by courts in civil proceedings if an Act of Parliament so provides.”

2. Bankruptcy Code of 1991

51. The 1991 Bankruptcy Code was in force until 1 January 2005, when it was replaced by the 2005 Bankruptcy Code (Law no. 7/2005 Coll., as amended). The relevant provisions of the 1991 Bankruptcy Code provided as follows.

52. In accordance with Article 1 § 1, the purpose of the 1991 Code was to settle the situation of a debtor who was insolvent. A debtor was considered to be insolvent when he or she had been incapable of complying with his or her obligations in respect of several creditors for more than thirty days (see paragraph 2 of Article 1), or in the event of over-indebtedness (see paragraph 3 of Article 1).

53. Under Article 4 § 1, a bankruptcy petition could be filed, inter alia, by the debtor’s creditor.

54. Paragraph 3 of Article 4 obliged a petitioner for bankruptcy to submit, together with the petition, the relevant documentary evidence.

55. Pursuant to paragraph 5 of Article 4, a creditor filing a bankruptcy petition had to specify the circumstances indicating that the debtor was insolvent, identify another creditor of the same debtor, and substantiate his or her claim in respect of the debtor.

56. Under Article 13 § 1, before issuing a bankruptcy order, a court had to ensure that all the prerequisite conditions had been met. Otherwise, the petition for bankruptcy was to be dismissed.

57. The legal effects of a bankruptcy order were defined in Article 14. They included: transfer of the authority to make dispositions in respect of the assets belonging to the estate to the bankruptcy trustee (see paragraph 1 (a)); inability of the debtor to reject a gift or inheritance without the approval of the trustee (see paragraph 1 (b)); authorisation of the trustee to commence judicial proceedings concerning assets belonging to the estate (see paragraph 1 (c)); stay of pending proceedings concerning assets belonging to the estate (see paragraph 1 (d)); prohibition of enforcement proceedings concerning assets belonging to the estate (see paragraph 1 (e)); extinction of certain rights under paragraph 1 (f)); maturity of otherwise immature claims concerning the estate (see paragraph 1 (g)); termination of powers of attorney issued by the debtor (see paragraph 1 (h)); prohibition of setting off claims against claims belonging to the estate (see paragraph 1 (i)); freeze on denationalisation under special legislation (see paragraph 1 (j)); dissolution of the debtor’s matrimonial property regime (see paragraph 1 (k)); transfer to the trustee of the power to run the debtor’s business and to act in staff-related matters (see paragraph 1 (l) and (m)); authorisation of the trustee and definition of the limits of the trustee’s power to repudiate certain contracts (see paragraphs 2 and 3); and regulation of certain aspects of the performance by creditors of contracts with the debtor (see paragraph 4).

58. If an insolvency order was issued (see Article 13 § 1), creditors of the insolvent debtor were invited to register their claims (see Article 13 § 2). The registered claims might then be contested by the trustee and any creditor (see Article 21 § 2). If a registered claim had been contested, the claimant had an opportunity to seek its judicial recognition by way of a special action (incidenčná žaloba) against anyone who had contested it (see Article 23 § 2).

59. Article 66a § 2 provided that bankruptcy cases were decided by a single judge. A hearing was to be held only where the law so provided or if the judge considered it necessary. In other cases a court could decide without a prior hearing.

60. Under Article 66e § 1, the provisions of the Code of Civil Procedure were to be applied in an appropriate manner in bankruptcy proceedings unless the 1991 Bankruptcy Code provided otherwise.

61. Article 67 § 4 (c) excluded adjudication on bankruptcy in respect of debtors in the area of transport and telecommunications with an essential strategic economic importance for the State. An exemption from this rule could be granted by the Government of the Slovak Republic upon the proposal of the authority which had created the company in issue.

C. Details and further elements of context, background and relevant domestic law and practice

62. Details and further elements of context, background and relevant domestic law and practice are contained in the decisions of the Commission in CDI Holding Aktiengesellschaft v. Slovakia (no. 26079/94, 16 October 1996) and of the Court in CDI Holding Aktiengesellschaft and Others v. Slovakia (no. 37398/97, 18 October 2001); Sýkora v. Slovakia (no. 65555/01, 27 September 2005); Slovenské telekomunikácie, š.p., HEROLD TELE MEDIA s.r.o. and František Eke v. Slovakia (no. 47097/99, 23 March 2004); Slovenské telekomunikácie, š.p. and HEROLD TELE MEDIA s.r.o. (no. 47097/99, 28 September 2010); HEROLD TELE MEDIA s.r.o. and Others v. Slovakia (no. 46190/99, 28 September 2010), and HEROLD TELE MEDIA s.r.o. v. Slovakia and Germany (no. 1699/02, 28 September 2010).

COMPLAINTS

63. The applicants complained under Article 6 § 1 of the Convention

(i) that the Regional Court had refused to institute proceedings before the Constitutional Court with a view to determining whether Article 67 § 4 (c) of the 1991 Bankruptcy Code was in conformity with the Constitution;

(ii) that none of the courts involved had heard them and they had been prevented from commenting on the evidence in the case;

(iii) that their right to a hearing by an impartial tribunal had been breached as a result of interference by the public authorities and the involvement of Judge A. in the appeal proceedings;

(iv) that the courts had failed to take the relevant evidence, had decided in an arbitrary manner and had failed to give sufficient and relevant reasons for their decisions;

(v) that the duration of the proceedings had been excessive; and

(vi) that, as a result of the opinion which the Supreme Court had expressed in the decision of 15 December 2004, they had been prevented from seeking redress before the Slovakian courts by means of a fresh insolvency petition.

64. The applicants also complained under Article 1 of Protocol No. 1 that they had been deprived of their property as a result of interference by the public authorities.

65. Lastly, the applicants alleged that Article 13 of the Convention had been violated as they had had no effective remedy at their disposal in respect of the above complaints.

THE LAW

A. The third applicant

66. After receipt of the Government’s observations in this case, a copy of these was sent to the applicants, who were requested to submit observations in reply. In a registered letter of 18 November 2011 the Court advised the third applicant that no observations had been received from him. At the same time, the third applicant was requested to inform the Court by 9 December 2011 whether, in these circumstances, he wished to pursue the application.

67. According to the delivery receipt the letter of 18 November 2011 was duly delivered. However, to date, the Court has received no reply.

68. In the light of the above, the Court considers that the third applicant does not intend to pursue his application. The Court also considers that respect for human rights as defined in the Convention does not require it to continue the examination of his case. Therefore, the part of the application concerning the third applicant should be struck out of the list of cases, in accordance with Article 37 § 1 (a) of the Convention.

B. Complaints by the first and second applicants

1. Article 6 § 1 of the Convention

69. The first and second applicants complained that, in connection with the insolvency petitions that they had filed against the defendant, they had been denied the guarantees provided for by Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent ... tribunal ...”

70. The Government objected, first of all, that the guarantees provided for by Article 6 § 1 of the Convention did not apply ratione materiae in the circumstances of the present case. In that respect, they pointed out that the insolvency petitions had been dismissed because the applicants had failed to show that they had had any claims against the defendant that would not have been contested on serious grounds and that would accordingly not have necessitated the taking of evidence. The Government also submitted that insolvency proceedings were a particular type of judicial proceedings which, unlike ordinary contentious proceedings, commenced not with the submission of a claim but only with the delivery of an insolvency order. In the Government’s view, in the present case no insolvency proceedings as such had commenced and the examination of the applicants’ petition had merely been a preparatory procedure. Nothing had prevented the applicants from asserting their claims in other types of judicial proceedings and by way of a fresh and properly substantiated insolvency petition.

Concerning the applicants’ complaint of lack of impartiality, the Government also considered that the applicants had failed to exhaust domestic remedies. In particular, on 2 October 2002 the first applicant had informed the Regional Court that it did not wish to pursue the challenge in respect of Judge A. (see paragraph 34 above). Moreover, no other challenges for bias had ever been submitted in connection with the other judges on account of the alleged interference with the proceedings by the authorities.

In addition, pointing out that no appeal had been lodged against the decision of 8 August 2011 (see paragraph 46 above), the Government contended that the relevant part of the application was likewise inadmissible for non-exhaustion of domestic remedies.

Lastly, the Government considered that, in any event, the Article 6 § 1 complaints were manifestly ill‑founded.

71. Acting on behalf of the first applicant, the second applicant disagreed with the Government’s non-exhaustion pleas, restated the complaints and submitted that several insolvency petitions against the defendant had been pursued for a number of years. In view of all the circumstances, including the statute of limitation, it was submitted that there had been no options left for the pursuit of the claims at issue at the domestic level and that no proceedings were still pending in that respect.

72. From the second applicant’s submissions it may be understood that he still wishes to pursue the application in his own name too. However, he has not submitted any separate observations on the admissibility and merits of the complaint.

73. The Court observes that, in view of the Government’s primary argument, it is necessary first of all to resolve the question of the applicability ratione materiae of the guarantees provided for by Article 6 § 1 of the Convention to the proceedings in connection with the insolvency petitions of the first and second applicants.

74. In that connection, the Court reiterates, first of all, that Article 6 § 1 does not require that there be a national court with competence to invalidate or override national law (see James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 192, Series A no. 102).

75. Moreover, the Court reiterates that the applicability of Article 6 § 1 to bankruptcy proceedings as such is beyond doubt (see Capital Bank AD v. Bulgaria, no. 49429/99, § 86, ECHR 2005‑XII (extracts) with further references; Vozár v. Slovakia, no. 54826/00, 14 November 2006; and Majan v. Slovakia, no. 8799/04, 23 November 2010).

76. However, in the present case, insolvency proceedings as such were not opened and, as pointed out in detail below, the background to the insolvency petitions of the first and second applicants involved particular circumstances.

77. The Court therefore reiterates, on a more general level, that according to its case-law, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. Mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see Balmer‑Schafroth and Others v. Switzerland, 26 August 1997, § 32, Reports of Judgments and Decisions 1997-IV, with further references).

78. In the present case, in essence, the first and second applicants have been making claims against the defendant on the basis of the contract and promissory notes purportedly issued on its behalf (see paragraphs 16 and 23 above).

79. The Court observes that both the contract and the promissory notes have been contested and that they have given rise to a number of proceedings, over more than a decade, before arbitration bodies and courts. The disputes concerned various aspects of those claims, including their corporate background and the authority of those acting in the name and on behalf of the defendant.

80. The claims brought by the first and second applicants mainly concerned penalties for breach of the contract. In that respect, the Court observes specifically that although the second applicant was successful in obtaining certain judicial rulings in his favour that may be interpreted as supporting his legal position on the validity of the contract (see paragraphs 7 and 8 above), there does not appear to be any judicial ruling or obiter concerning the compensation under the contract, the penalties for the breach of it and to whom they are payable.

81. Without pronouncing itself in any way on the legal quality of the contract or any part of it in terms of domestic law, the Court cannot but observe that the claims made by the first and second applicants under the contract and the promissory notes are far from being unequivocal.

82. The Court further observes that the usual avenue for asserting such contested claims is by way of an action at law (see, inter alia, paragraph 50 above). In Slovakia, such an action would fall to be determined by the ordinary courts, which have full and unrestricted jurisdiction (see paragraph 50 above) to resolve any relevant question of fact and law, substantive and procedural, including the question of the legal basis and extent of the claims in question.

83. The first and second applicants in the present case, however, chose to use their contested claims as a basis for an insolvency petition against the defendant.

84. In relation to the course of action chosen by the first and second applicants, the Court finds it of relevance to reiterate that the purpose of insolvency proceedings is to settle the insolvent debtor’s situation (see paragraph 52 above), rather than to resolve contested claims.

In proceedings under the 1991 Bankruptcy Code, the phase of examination of an insolvency petition is distinct from the insolvency proceedings as such. Under Article 13 § 1, the purpose of the former is to establish whether a debtor is indeed insolvent (see paragraph 56 above).

This phase ends with the issuing of an insolvency order, which at the same time marks the beginning of the insolvency proceedings, consisting essentially of the liquidation of the debtor’s estate and the distribution of its proceeds.

85. The petitions filed by the first and second applicants were examined at the first - preparatory - stage of the proceedings under the 1991 Bankruptcy Code, that is to say prior to the issuing of an insolvency order. As was held by the domestic courts on several occasions, it was not within their jurisdiction at that stage of the proceedings to take and assess evidence with a view to resolving the contested nature of the claims made by the first and second applicants. In other words, the “dispute” which the first and second applicants were seeking to pursue by way of their insolvency petitions fell outside the scope of the proceedings under the 1991 Bankruptcy Code (see paragraphs 28, 30 and 46 above).

86. As to the conclusion of the preparatory stage of the proceedings under the 1991 Bankruptcy Code – that is to say, the issuing of an insolvency order under Article 13 § 1 of the Code – pursued by the first and second applicants, the legal effects of such an order were specifically defined by law, in Article 14 of the Code (see paragraph 57 above). While these effects include a number of rules, consequences and arrangements with a direct effect on the position of the debtor, the Court has found no indication that, for the purposes of the present proceedings, they had any direct repercussions on the first and second applicants as creditors.

87. In particular, the Court observes that even assuming that the claims of the first and second applicants successfully provided a basis for declaring the defendant insolvent, the legal position of the first and second applicants would not immediately change, because the 1991 Bankruptcy Code provided for a specific instance at a later stage of the insolvency proceedings where disputed claims could be contested. Once contested, such claims required judicial determination in a separate set of proceedings, following a special action by the creditor concerned (see paragraph 58 above).

88. However, concerning the outcome of the proceedings in connection with the insolvency petitions filed by the first and second applicants, and specifically its repercussion on their civil rights and obligations within the meaning of Article 6 § 1 of the Convention, the Court observes that neither the courts’ rulings nor their reasoning appeared to make any substantive legal assessment of those claims. In addition, there is no indication that the outcome of the proceedings in respect of the petitions constitutes a bar of res judicata to the possibility of asserting those claims by way of an action at law before the ordinary courts.

89. The Court notes in particular the outright way in which the claims of the first and second applicants were contested from the very outset, the scope of the courts’ jurisdiction at the preparatory stage of the proceedings under the 1991 Bankruptcy Code, the lack of any direct legal effects of an insolvency order under the Code on a party in the position such as that of the first and second applicants, and the absence of any issue of access to a court.

In view of all the above considerations, in the specific circumstances of the present case, which distinguish it from others where the guarantees of Article 6 § 1 of the Convention were found applicable, the Court finds that the proceedings in respect of the insolvency petitions of the first and second applicants cannot be said to have involved the determination of their civil rights and obligations, within the meaning of Article 6 § 1 of the Convention.

It follows that the complaints of the first and second applicants under Article 6 § 1 of the Convention are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

2. Article 1 of Protocol No. 1 and Article 13 of the Convention

90. The first and second applicants complained of interference by the public authorities with their right to property, in breach of Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

91. The first and second applicants also complained of a lack of an effective remedy for their complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in breach of Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

92. Referring to their arguments in respect of the part of the application under Article 6 § 1 of the Convention, the Government considered the complaint under Article 1 of Protocol No. 1 manifestly ill‑founded. In their view, the same conclusion applied to the Article 13 complaint.

93. The first and second applicants disagreed and restated their complaints.

94. The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” can be either existing possessions or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. The Court has held that the applicants had no “legitimate expectation” where it could not be said that they had a currently enforceable claim that was sufficiently established (see, among other authorities, Kopecký v. Slovakia [GC], no. 44912/98, §§ 35, 49 and 50, ECHR 2004-IX, with further references).

95. As has been observed above, the claims submitted by the first and second applicants at the domestic level were contested, and neither their legal basis nor their scope has been judicially established. The Court concludes that, in the circumstances, these claims cannot be considered as having been sufficiently established to attract ratione materiae the guarantees of Article 1 of Protocol No. 1.

96. As the underlying complaints fall outside the Court’s jurisdiction ratione materiae, the Article 13 complaint is also incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention.

97. It follows that the remainder of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as brought by the third applicant, Mr Günter Schuster;

Declares the remainder of the application inadmissible.

Santiago QuesadaJosep Casadevall
RegistrarPresident

 

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