Communicated on 27 November 2020
Published on 14 December 2020
FIRST SECTION
Application no. 43995/19
Tomáš ZÁVARSKÝ
against Slovakia
lodged on 6 August 2019
SUBJECT MATTER OF THE CASE
The application concerns legal and practical exclusion from satisfaction in insolvency proceedings or otherwise of the applicant’s claim against an individual for payment of money on the basis of a promissory note. The claim was adjudicated by a final and binding judgment. The exclusion has been by operation of law (Article 166 § 1 (a), in conjunction with Article 166b § 1 (c) of the Insolvency and Restructuring Code (Law no. 7/2005, as amended)), combined with the fact that the debtor was declared insolvent “with debt discharge”, in proceedings to which the applicant had not been a party, by way of a decision against which there was no appeal. The application raises issues under Articles 6 (§ 1) and 13 of the Convention and Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required under Article 35 § 1 of the Convention?
In particular, but not only, was the action for the cancellation of the debt discharge (žaloba na zrušenie oddlženia) under Article 166f of the Insolvency and Restructuring Code (Law no. 7/2005, as amended) ane ffective remedy within the meaning of this provision, taking into account the scope and potential effect of that remedy?
Furthermore, was the complaint under Article 127 of the Constitution an effective remedy within the meaning of this provision in relation to the debt discharge, taking into account the Constitutional Court’s established jurisprudence that it has no jurisdiction to examine an individual complaint when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, Jenisová v. Slovakia, no. 58764/00, §§ 58-60, 3 November 2009, with a further reference)?
From the point of view of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, could and should the applicant have pursued collection on his adjudicated claim in the insolvency proceedings concerning the estate of his debtor on the basis that:
- although they had originally stemmed from a promissory note as foreseen by Article166b § 1 (c) of the Insolvency and Restructuring Code, the applicant’s claim fell outside the field of application of that provision since it had been adjudicated by final and binding judgment, whereby it had obtained a different basis (that of a final and binding judgment)?
and/or
- if the object and purpose of Article 166b § 1 (c) of the Insolvency and Restructuring Code is to prevent double collection on the original debt as well as on the promissory note securing the original debt, the given object and purpose had been fully served by the fact that, at the time of the insolvency order in relation to the estate of the applicant’s debtor, the original debt appears to have already been statute-barred?
2. With regard to the collection on the applicant’s adjudicated claim, did he have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see, for example, Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III, with a further reference; and Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005)?
3. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so:
- does the interference amount to a deprivation of property?
- was control of use of property involved?
4. If there has been an interference, was it compatible with the requirements of Article 1 of Protocol No. 1?
In particular, but not only, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
5. Has the respondent State complied with its positive obligations under the said provision? Has it provided the applicant with an appropriate legal mechanism allowing him to assert his property rights (see Kotov v. Russia [GC], no. 54522/00, § 114, 3 April 2012, with further references)?
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