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Cite as: [2010] ECHR 1521
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FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
57238/00
by HEROLD TELE MEDIA, S.R.O., IVAN MATUŠÍK
AND
GÜNTER SCHUSTER
against Slovakia and Germany
The European Court of Human Rights (Fourth Section), sitting on 28 September 2010 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 13 April 2000,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Herold Tele Media, s.r.o., is a private limited company with its registered office in Bratislava. The second applicant, Mr Ivan Matušík, is a Slovakian national who was born in 1956 and resides in Láb, Slovakia. He lodged the application both on the first applicant's behalf and in his own capacity. The third applicant, Mr Günter Schuster, is an Austrian national who was born in 1956 and resides in Neudorf bei Staatz, Austria. The applicants were represented before the Court by Mr J. Kotlík, a lawyer practising in Bratislava.
The application was initially lodged by the first and second applicants and it was directed against Slovakia. In a letter dated 22 October 2004 the third applicant informed the Court that he wished to join the proceedings as an applicant. The letter signed by the applicants' representative indicated that the application was also directed against Germany.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background information
(a) Relevant corporate information
State-owned company Správa pôšt a telekomunikácií, Bratislava, š.p. (Administration of Post and Telecommunications) was established by the Federal Minister of Transport and Telecommunications on 27 June 1989. It was dissolved without going into liquidation as of 31 December 1992. Its property, rights and obligations were transferred to three newly established State-owned companies, one of which was Slovenské telekomunikácie, š.p.
The latter company was established by the Ministry of Transport, Telecommunications and Public Works on 1 January 1993.
On 23 December 1998 the Minister of Transport and Telecommunications decided to dissolve Slovenské telekomunikácie, š.p. The company was transformed into a joint stock company, Slovenské telekomunkácie, a.s., which succeeded to all the rights and obligations of its predecessor. On those grounds Slovenské telekomunikácie, š.p. was deleted from the register of companies on 1 April 1999.
Under a contract of 18 July 2000 the Fund of National Property, with the agreement of the Ministry of Transport, Post and Telecommunications, sold 51% of the shares of Slovenské telekomunkácie, a.s. to Deutsche Telekom AG, a company with its registered office in Bonn, Germany. Point 6 subjected the transaction to several conditions with suspensive effect. They included the absence of any binding decision, delivered by a court or other public authority, prohibiting the transaction agreed upon in the contract.
An annex to the contract lists court proceedings in which the company was involved at that time. It includes a lawsuit with the first applicant's predecessor referred to as “the Yellow Pages Dispute”. Subsequently, the company Slovenské telekomunikácie, a.s. was twice renamed. Its current business name is Slovak Telekom, a.s.
(b) Contracts underlying the applicants' claims
(i) Contract of 19 October 1990
On 19 October 1990 the second applicant, who ran his business under name IMCO – Herold Business Data, concluded a contract with Administration of Post and Telecommunications. Under that contract, IMCO – Herold Business Data was authorised to publish telephone directories, both ordinary (white pages) and commercial (yellow pages), subject to the payment of a part of its income from the commercial directories to its contractual partner. The latter undertook to provide the relevant data and to ensure the distribution of the directories, and also to cover the costs of production of the ordinary directories. The contract was concluded for a period of seven years and contained a tacit renewal clause. The legal successor to the contractual partners was to take over the obligations under the contract.
(ii) Contract of 20 November 1992
On 20 November 1992 IMCO – Herold Business Data and Administration of Post and Telecommunications signed an annex to the above-mentioned contract of 19 October 1990. It specified the content and intervals for the publishing of both types of directories, including the parties' rights and obligations related to the production and distribution.
Administration of Post and Telecommunications undertook to cover its partner's costs related to the production of the commercial directories between 1990 and 1995 up to sixteen million Slovak korunas (SKK).
The parties agreed that, in the case of one partner's failure to comply with the contract, a sanction amounting to 0.05% of the sum due was payable for each day of delay. In cases of delay in respect of obligations for which a value could not be quantified, a sanction of five-hundred SKK was payable for each day. That sanction was to be multiplied by five at the end of each quarter in delay.
The annex was concluded for the period agreed upon in the contract of 19 October 1990. It stipulated that it was an inseparable part of that contract and the provisions of the annex were to be considered as valid text of that contract.
(iii) Contract of 14 June 1999
On 14 June 1999 the second applicant, who then ran his business under the name EURO INCO, ceded a part of his claims in respect of Slovenské telekomunikácie, a.s. to the first applicant. The contract indicated that the title ceded corresponded to five billion SKK.
(c) Proceedings leading to Supreme Court's judgment 3 Obo 21/92
On 23 December 1991 the State Arbitration Court in Bratislava, at the request of IMCO – Herold Business Data, ordered the Administration of Post and Telecommunications to abstain from any unlawful action in the context of publishing telephone directories under the contract of 19 October 1990. It further ordered the defendant to reimburse the plaintiff's costs and the arbitration fee.
The defendant appealed. Its representative challenged the validity of the contract due to lacunae and shortcomings in its provisions and the plaintiff's action contrary to it.
On 19 March 1992 the Supreme Court upheld the first-instance decision. It concluded that the contract of 19 October 1990 contained all essential clauses. The defendant's failure to cooperate in the production of the directories had been in breach of the contract.
(d) Proceedings concerning the claim of 19 December 1991
On 19 December 1991 IMCO – Herold Business Data claimed that Administration of Post and Telecommunications should be ordered to comply with its obligations under the contract of 19 October 1990.
On 12 October 1992 the Bratislava City Court granted the action and ordered the defendant to provide relevant data and information to the plaintiff.
The judgment became final on 28 May 1993.
(e) Proceedings concerning the claim of 18 May 1992
On 18 May 1992 IMCO – Herold Business Data claimed that the Administration of Post and Telecommunications should pay seventy-two million SKK in compensation for damage resulting from its failure to comply with the contract of 19 October 1990.
On 16 February 1993 the Bratislava City Court approved a settlement under which the defendant had undertaken to pay sixteen million SKK to the plaintiff. It discontinued the proceedings in respect of the remaining sum claimed. The decision became final on 26 February 1993.
(f) Meeting of 5 January 1994
The applicants submitted a handwritten document summarising a meeting between the second applicant and the director of Slovenské telekomunikácie, š.p. on 5 January 1994. The document bears two illegible signatures and indicates that the director of Slovenské telekomunikácie, š.p. expressed his belief that nothing would hamper further cooperation in the production of telephone directories and proposed, in the interest of giving additional weight to the contracts at issue, suspending the “judicial power of moderation” in their respect. The second applicant agreed to that proposal.
(g) Proceedings concerning the bankruptcy petition of 16 January 1996 (the Bratislava Regional Court file no. 38 K 10/96)
On 16 January 1996 the first applicant's predecessor requested the Bratislava City Court to start settlement proceedings (dohodovacie konanie), within the meaning of sections 4 et seq. of the 1991 Bankruptcy Act, in respect of Slovenské telekomunikácie, š.p. The plaintiff claimed that the debtor had failed to comply with its contractual obligations in respect of several creditors.
The proceedings were discontinued with final effect on 24 July 1998. Reference was made to section 2 of Law no. 292/1996 and to the fact that the defendant fell under section 67(3) of the 1991 Bankruptcy Act as it was a “State-owned company of strategic importance” within the meaning of the relevant law.
Further details concerning this set of proceedings, the relevant law and action taken by plaintiffs in that context are set out in Slovenské telekomunikácie, š.p. and Herold Tele Media, s.r.o. v. Slovakia (dec.), no. 47097/99, 28 September 2010, and Herold Tele Media, s.r.o. and Others v. Slovakia (dec.) no. 46190/99, 28 September 2010.
(h) Bankruptcy petition in respect of the second applicant
In the context of the bankruptcy proceedings which had been initiated in respect of the second applicant (Bratislava Regional Court file no. 38 K 39/95) company Slovenské telekomunikácie, a.s. submitted several claims on 11 August 1999. They comprised twenty million SKK, corresponding to a sanction under the above-mentioned contract of 19 October 1990, as amended by the annex of 20 November 1992.
2. Proceedings concerning the bankruptcy petitions of 21 June 1999 and 9 May 2001 (the Bratislava Regional Court file no. 5 K 179/99)
On 21 June 1999 the first and second applicants filed a petition for bankruptcy in respect of Slovenské telekomunikácie, a.s. The first applicant claimed that the debtor owed more than four hundred and forty-four billion SKK for its failure to comply with the above-mentioned contract on the publication of telephone directories. Since the overall capital of that company amounted to approximately twenty billion SKK, the first applicant claimed that it was clearly over-indebted. The second applicant claimed that the defendant company owed him five billion SKK. The second applicant had acquired that title under the above-mentioned contract concluded on 14 June 1999.
The applicants' claims resulted principally from the defendant's failure to comply with the above-mentioned contracts of 1990 and 1992, and also from promissory notes which Mr E. had issued on behalf of the defendant company's predecessor on 7 April 1998.
In 1999 the first and second applicants unsuccessfully requested both the Bratislava Regional Court and the General Prosecutor's Office to initiate proceedings before the Constitutional Court with a view to examining the conformity of section 67(4)(c) of the 1991 Bankruptcy Act with the Constitution.
On 30 March 2000 the Bratislava Regional Court discontinued the proceedings. The court referred to section 67(4)(c) of the 1991 Bankruptcy Act and concluded that an adjudication of bankruptcy of the company at issue was excluded since (i) it was a company specialised in the area of telecommunications and (ii) the Government had not approved the bringing of bankruptcy proceedings against it.
On 16 March 2001 the Supreme Court quashed the first-instance judgment. It found that the Regional Court had committed a procedural mistake in that it had discontinued the proceedings. Even if the conditions laid down in section 67(4)(c) of the 1991 Bankruptcy Act had been met, the first-instance court should have issued a decision dismissing the petition in lieu of discontinuing the proceedings.
On 9 May 2001 the third applicant filed a bankruptcy petition in respect of Slovenské telekomunikácie, a.s. with the Bratislava Regional Court. He alleged that the company had failed to repay five-hundred million SKK under the terms of its predecessor's promissory note. That note had been established by Mr E. on 7 April 1998 to the benefit of the first applicant. The latter had transferred it to the third applicant. On 10 May 2001 CDI Holding AG, a corporation with its registered office in Vienna, in liquidation, also submitted a bankruptcy petition in respect of Slovenské telekomunikácie, a.s. The judge informed both petitioners that their submissions would be examined in the context of proceedings file no. 5 K 179/99, initiated by the first and second applicants.
On 29 January 2002 the Bratislava Regional Court dismissed the petitions for adjudication of bankruptcy of Slovenské telekomunikácie, a.s.
The
Regional Court first noted that legislative changes had occurred,
such as the entry into force of the Telecommunications Act of 2000 on
1 July 2000. As a result, it could not be concluded that the
defendant company still fell under section 67(4)(c) of the 1991
Bankruptcy Act. In the decision, reference was made to the
defendant's written opinion denying its alleged debts in respect of
the plaintiffs. The court proceedings were still pending concerning
the claims of the first and second applicants. As to the promissory
notes, they had been flawed in several respects and had not been
entered in the books, and the defendant therefore refused to accept
them.
The Regional Court held that, for a bankruptcy petition to succeed, the creditors' title must be unequivocally established at least in part. The Regional Court had also regard to its file no. 38 K 10/96 which concerned settlement proceedings under the 1991 Bankruptcy Act in respect of the defendant's predecessor (see above). Reference was made to the action taken by the council of creditors in that context, in particular after the first-instance decision of 24 October 1996 to discontinue proceedings 38 K 10/96. The judge considered that any such action had been irrelevant from a legal point of view.
In its decision of 29 January 2002 the Regional Court concluded that the plaintiffs had failed to substantiate their claims in a reliable manner. They therefore lacked standing to petition for the defendant's bankruptcy.
With reference to section 66a(2) of the 1991 Bankruptcy Act the Regional Court did not consider it necessary to hear the parties.
The plaintiffs appealed. They argued that their claims in respect of the defendant company had been clearly established, for example in the Supreme Court's decision 3 Obo 21/92. Reference by the Regional Court to proceedings file no. 38 K 10/96 was inappropriate as those proceedings were the subject matter of an application to the Court which had not yet been determined and the relevant documents had not been included in the file concerning their petition of 1999. The defendant had expressly acknowledged the validity of the contracts of 1990 and 1992, in that it had submitted, in the context of bankruptcy proceeding initiated in respect of the second applicant, a claim based on the provisions of those contracts.
On 13 August 2002 at 14.10 p.m. the applicants submitted to the Supreme Court's registry an objection to judge F. and the appeal chamber presided over by that judge. They argued that judge F. had been involved in proceedings file no. 38 K 10/96, which concerned an earlier bankruptcy petition in respect of the same defendant. In those proceedings the judge involved had not acted in accordance with the law.
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 in respect of the debtor must be shown in a [bankruptcy] petition to the extent that any doubt is excluded. It is not the purpose of bankruptcy proceedings to establish the existence of claims which are controversial. A court [dealing with a bankruptcy 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 subsections 1, 2 and 5 of section 1 of the 1991 Bankruptcy Act, that is, whether a debtor is insolvent. A creditor must demonstrate his or her right to petition for adjudication of bankruptcy, 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 creditors' claims cannot be considered as proven and uncontroversial without taking further evidence; this also follows from the creditors' 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.”
With reference to Article 214 § 2(c) of the Code of Civil Procedure, the Supreme Court decided without hearing the parties. The division which decided on the case was presided over by judge F.
The plaintiffs appealed on points of law. They alleged that the judges involved had been biased, that they 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. In particular, judge F. who had earlier decided in three other cases concerning the same debtor, should have been excluded from the appeal proceedings. The courts decided arbitrarily, in disregard of the facts of the case. In particular, in decision 3 Obo 21/92 the Supreme Court had confirmed the validity of the contract of 19 October 1990. Similarly, the representatives of the defendant had based their claims in the context of the bankruptcy proceedings against the second applicant on the provisions of the contracts concluded in 1990 and 1992.
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 Slovak law. The request for the exclusion of judge F. had been submitted to the Supreme Court's registry at 2.10 p.m. on 13 August 2002. However, the appeal court had determined the case on the morning of that date. In any event, the argument that a judge had decided earlier, in different proceedings concerning the same parties, did not suffice for his or her exclusion for bias. Finally, the Supreme Court found no indication that the public authorities and officials had influenced the lower courts' decision on the matter at issue.
With reference to Articles 243a § 3 of the Code of Civil Procedure, the Supreme Court decided on the appeals on points of law without hearing the parties.
3. Constitutional proceedings
(a) Applicants' complaints of December 2002
In December 2002 the applicants and CDI Holding AG in liquidation lodged a constitutional complaint. They alleged a breach 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 plaintiffs also invoked Articles 13, 14 and 17 of the Convention.
In particular, the plaintiffs complained that the ordinary courts had not heard the parties and had decided in their absence. Their decisions were arbitrary. The ordinary courts involved had been put under pressure by government officials and the Ambassador of Germany to Slovakia. Finally, the plaintiffs alleged that the judges involved had been biased.
The
Constitutional Court (fourth division) dismissed the complaint 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 new petition for adjudication of bankruptcy of their
debtor.
(b) Third applicant's complaint of 2 August 2004
On 2 August 2004 the third applicant complained under Articles 6 § 1, 13, 14 and 17 of the Convention about the proceedings before 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 and 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. Judge F., who had decided on the appeal, should have been excluded, as an objection to her impartiality had been lodged.
The
Constitutional Court (first division) dismissed the complaint on
14
September 2004. As regards the decisions of the first-instance and
appeal courts, the Constitutional Court referred to its
above-mentioned decision of
26 February 2003. It noted that the
plaintiff still had the possibility of filing a new petition for
bankruptcy. 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
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 plaintiffs alleged that the Supreme Court had decided in an arbitrary manner without hearing the parties. The courts involved had lacked impartiality due to pressure exercised, in particular, by the Ministry of Justice and the Slovak Government. Judge F., who had decided on the appeal, should have been excluded, as an objection to her impartiality had been lodged.
The
Constitutional Court (third division) dismissed the complaint on
8
December 2004. With reference 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 was 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 plaintiffs. Determination of those questions did not require an oral hearing to be held. Furthermore, the applicants were aware of the relevant law and they 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 F. Furthermore, the applicants had not shown that they had been prevented from challenging that judge.
Finally, the complaints in respect of the Government and the Ministry of Justice had been lodged out of time and also fell short of other formal requirements.
4. Other facts relied upon by the applicants
(a) Proceedings concerning the bankruptcy petition of 2003 (Bratislava Regional Court file no. 7 K 15/03)
On 9 November 2004 the Bratislava Regional Court dismissed a different petition for adjudication of bankruptcy of Slovenské telekomunikácie, a.s. lodged by the first applicant. It concluded that the plaintiff had failed to clearly substantiate its claim in respect of the defendant. In particular, it had not submitted the contract of 19 October 1990 on which its claim was based.
The
first applicant appealed. Its representative argued that the court
file comprised a Supreme Court judgment confirming the validity of
the contract. Furthermore, the file also comprised the annex to the
contract of
20 November 1992 stipulating that it replaced the
text of the contract of 1990.
On 15 December 2004 the Supreme Court quashed the first-instance judgment. It referred to the above-mentioned proceedings registered under the Bratislava Regional Court file no. 5 K 179/99, in which the courts had established that the plaintiffs' claims in respect of the defendant had not been clearly established. The Supreme Court held that no new relevant facts had been established in proceedings concerning the bankruptcy petition at issue. The first-instance court should have therefore decided on the merits of that petition on the basis of the final decision to dismiss the former petition in the context of proceedings 5 K 179/99.
The applicants concluded that the view expressed by the Supreme Court was binding on the lower courts and that any new petition for adjudication of the bankruptcy of the defendant company, based on its failure to comply with its above-mentioned contractual obligations, was bound to be rejected.
(b) Actions taken by public authorities
The applicants maintained that a series of steps had been taken with a view to preventing them from having their claims satisfied in the context of the proceedings concerning their petition for adjudication of the bankruptcy of Slovenské telekomunikácie, a.s.
They referred to several letters and argued that representatives of the companies Slovenské telekomunikácie, a.s., Deutsche Telekom, A.G. and the Ambassador of Germany to Slovakia had intervened with the Prime Minister, the Ministry of Justice, the Ministry of Post, Transport and Telecommunications, the Telecommunications Office and the Anti Monopoly Office with a view to preventing a fair determination of the claim. Some of that correspondence had been sent to the Bratislava Regional Court. In a letter of 22 November 2001 the president of that court advised the Secretary of State at the Ministry of Justice of the status of several sets of proceedings. In the letter, reference was made to an earlier opinion submitted by the judge involved in proceedings file no. 5 K 179/99 containing the “legal opinion and intended steps of the court”.
The applicants further submitted a document which the Ministry of Transport, Post and Telecommunications had prepared for a Government meeting in September 2001. It was entitled “Information on judicial disputes of Slovenské telekomunikácie, a.s. in the 'Yellow Pages' case”. The document indicated that the claims had been based on two contracts concluded in 1990 and 1992 on the publishing of telephone directories. Slovenské telekomunikácie, a.s. or its predecessor had contested such claims. The activities of the company had been put into jeopardy as a result of proceedings concerning adjudication of its bankruptcy pending before the Bratislava Regional Court and the existence of several promissory notes totalling forty billion SKK, which Mr E. had issued on the company's behalf in 1998. The document stated that the Slovakian authorities had undertaken to do as much as possible, to the extent that the law allowed, to contest the claims related to the “Yellow Pages Dispute”. Immediate measures were therefore required, within the framework of the law in force, with a view to a final resolution of the issue. In particular, it was necessary to accelerate the judicial proceedings pending as well as the investigation into the criminal complaint.
An annex to the material lists fourteen sets of judicial proceedings pending, of which three are underlined as being most urgent. Those proceedings concerned: (i) declaration of absence of any contractual relationship between Slovenské telekomunikácie, š.p. and the first applicant's predecessor (Bratislava III District Court file no. Cb 338/96); (ii) petition for adjudication of bankruptcy of the second applicant (Bratislava Regional Court file no. 38 K 39/95) and (iii) petition for adjudication of bankruptcy of Slovenské telekomunikácie, a.s. (Bratislava Regional Court file no. 5 K 179/99).
As further examples of actions taken against them, the applicants indicated that bankruptcy proceedings had been initiated against the second applicant in the context of which Slovenské telekomunikácie, a.s. had submitted claims based on the contracts of 1990 and 1992, the validity of which its representatives denied. Furthermore, criminal proceedings had been brought against the second applicant upon a complaint by the Minister of Justice. The second applicant had been convicted of attacking public authorities and given a conditional sentence of five months' imprisonment. Criminal complaints against the second and third applicants had also been lodged by representatives of Slovenské telekomunikácie, a.s.
Finally, the first and second applicants submitted that the Slovakian intelligence service had carried out activities aimed at preventing a fair determination of the case. Similarly, the third applicant maintained that he had been contacted by several agents of the German intelligence service who had offered him assistance and copies of the promissory notes of Slovenské telekomunikácie, a.s.
The applicants submitted that, with a view to obtaining the above mentioned information, they had to initiate more than five thousand different proceedings in Slovakia over a period of three years.
B. Relevant domestic law and practice
1. The Code of Civil Procedure
Under Article 214 § 2(c), a court of appeal may dispense with a hearing where an appeal concerns a decision (not a judgment) of the first-instance court.
Article 243a § 3 provides that the court of cassation always decides on appeals on points of law filed against a decision (not a judgment) without a prior hearing.
2. The 1991 Bankruptcy Act
The following provisions of the 1991 Bankruptcy Act were in force at the relevant time.
Pursuant to section 1(1), the purpose of the Act is to settle the situation of a debtor who is insolvent. A debtor is considered to be insolvent when he or she has been incapable of complying with his or her obligations in respect of several creditors for more than 30 days (sub-section 2 of section 1), or in the event of over-indebtedness (sub-section 3 of section 1).
Under section 4(1) a petition for adjudication of bankruptcy can be filed, inter alia, by the debtor's creditor.
Sub-section 3 of section 4 obliges a petitioner for bankruptcy to submit, together with the petition, the documentary evidence relied upon.
Pursuant to sub-section 5 of section 4, a petition for bankruptcy filed by a creditor must specify the circumstances in which the debtor is insolvent, indicate another creditor of the same debtor and substantiate his or her claim in respect of the debtor.
Under section 13(1), a court shall deliver a decision on the debtor's bankruptcy when it has been established that all the prerequisite conditions have been met. Otherwise, a petition for bankruptcy is to be dismissed.
Section 66a(2) provides that bankruptcy cases are decided upon by a single judge. A hearing is held only where the law so provides or if the judge considers it necessary. In other cases a court can decide without a prior hearing.
Section 66e(1) provides that the provisions of the Code of Civil Procedure are to be applied in an appropriate manner in bankruptcy proceedings unless the 1991 Bankruptcy Act provides otherwise.
Section 67(4)(c) excludes 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 can be granted by the Government of the Slovak Republic upon the proposal of the authority which established the company at issue.
3. Law no. 192/1995
Law no. 192/1995 was adopted with a view to safeguarding the interests of the State in the context of the denationalisation of State-owned companies of strategic importance. It ceased to have effect on 12 October 1999.
Section 2 enumerated companies which were considered to be of strategic importance for the State and which were exempted from the applicable law on denationalisation. Slovenské telekomunikácie, š.p. was included in sub-section 1(b)(2) of that provision.
COMPLAINTS
(i) the Regional Court had refused to initiate proceedings before the Constitutional Court with a view to determining the conformity with the Constitution of section 67(4)(c) of the 1991 Bankruptcy Act;
(ii) none of the courts involved had heard them and they had been prevented from commenting on the evidence in the case;
(iii) 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 F. in the appeal proceedings;
(iv) the courts had failed to address the relevant evidence, had decided in an arbitrary manner and had failed to give sufficient and relevant reasons for their decisions;
(v) the duration of the proceedings had been excessive; and
(vi) 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 petition for adjudication of bankruptcy.
THE LAW
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of those complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants' complaints concerning the alleged breach, by the Slovakian authorities, of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 13 of the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President