CASE OF ZAVODNIK v. SLOVENIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Just satisfaction);Non-pecuniary damage - award (Article 41 - Just satisfaction)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1938 and lives in Ravne na Koroškem. 6. In 1993 his former employer, company Z. R., transferred him to another company. 7. On 20 April 1993 the applicant instituted proceedings against the company Z.R. before the Maribor Court of Associated Labour, complaining about his transfer. 8. On 28 June 1994 the Convention came into force in respect of Slovenia. 9. In September 1995 the applicant’s case was transferred to the Slovenj Gradec division of the Maribor Labour Court. 10. Between February 1996 and March 1997 the court held five hearings. 11. On 13 March 1997 the Maribor Labour Court established that the applicant’s transfer had never taken effect and that his employment with the defendant had continued. It ordered company Z.R. to re-employ the applicant and to pay him the salary due and the applicable benefits backdated to the day of his transfer. It dismissed the remainder of the claim. The applicant appealed. 12. In a decision of 16 April 1999 the Slovenian Pensions and Disability Insurance Institute recognised the applicant’s right to a pension as of 1 February 1999. His employment relationship with Z.R., which as of that date had still not re-employed him, hence terminated. 13. On 17 June 1999 the judgment of 13 March 1997 was upheld by the Higher Labour and Social Court and became final. 14. As Z.R. had not executed the court’s judgment, on 6 April 2000 the applicant instituted enforcement proceedings before the Slovenj Gradec Local Court. 15. On 12 July 2000 the court suspended the enforcement proceedings pending a final resolution of bankruptcy proceedings which had been instituted in the meantime against Z.R. (see below). 16. On 3 February 2005 the court decided to terminate the enforcement proceedings, since the applicant’s claims had been recognised in the bankruptcy proceedings. The decision became final on 22 February 2005. 17. On 5 July 2000 the Slovenj Gradec District Court decided to institute bankruptcy proceedings against the company Z.R. 18. On 31 August 2000 the applicant lodged a claim in the bankruptcy proceedings, seeking 2,000,000 Slovenian tolars (SIT, approximately 8,346 euros (EUR)) payable under the judgment of 13 March 1997 (see paragraph 11 above). 19. On 11 October 2000 the court held the first main hearing in order to review the claims lodged by the creditors. It was decided that a committee of creditors would not be appointed. According to the applicant, both the receiver and the insolvency panel had assured him and his son, U.Z., who represented him, that they would inform them of any progress in the case, in particular of the scheduling of hearings concerning the distribution of the estate. On the same date the insolvency panel acknowledged part of the applicant’s claims and referred him to the contentious proceedings in respect of the remainder of the claims. The applicant appealed. 20. On 5 December 2000 the Maribor Higher Court upheld the applicant’s appeal and overturned the District Court’s decision by instructing the receiver to institute proceedings in respect of the disputed part of the applicant’s claim. 21. On 22 January 2000 the official receiver instituted proceedings before the Slovenj Gradec District Court, requesting it to declare that the disputed part of the applicant’s claim did not exist. 22. On 20 June 2001 the receiver reported to the insolvency panel that the conclusion of the proceedings was dependent on the conclusion of bankruptcy proceedings in respect T., a company that had been operated by Z.R. It was expected that a large proportion of T.’s property would be transferred back to Z.R., including a hotel and spa complex, R.V. The receiver estimated that until that had been done, the property available for sale would not even cover the costs of the bankruptcy proceedings. 23. On 8 April 2003 the receiver withdrew his claim against the applicant. 24. As a result, on 5 May 2004 the Slovenj Gradec District Court stayed the contentious proceedings. 25. On 1 February 2005 the receiver accepted the applicant’s claim in the full amount. 26. On 18 February 2005 the applicant demanded the payment of his claim. 27. In his regular reports to the insolvency panel submitted between 2004 and 2006, the receiver emphasised that the termination of the present proceedings was dependent on the termination of the bankruptcy proceedings in respect of company T., which in turn were dependent on the pending denationalisation proceedings in respect of the R.V. hotel complex. 28. In 2006 ownership of the hotel complex, R.V., was transferred to the company Z.R. According to the receiver’s reports, it could not be sold until the termination of the denationalisation proceedings. 29. On 24 October 2007 the denationalisation proceedings were finally resolved. 30. On 16 April 2008 the insolvency panel ordered the sale of the R.V. hotel complex. 31. At a public auction held on 18 May 2008, R.V. was sold for EUR 501,426. Reports on the sale were published online on the Bajta.si web portal, on a web portal for accountants, Racunovodja.si, on the Slovenian Press Agency website, and in the daily financial newspaper, Finance. 32. On 17 June 2008 the receiver submitted to the court a draft proposal on the main distribution of the estate. The receiver further proposed that the court issue a decision on the priority payment of the claim of the first creditor, F.F., concerning compensation for damage sustained at work, which had been recognised by a court decision. 33. On 19 June 2008 the Slovenj Gradec District Court issued a decision on the compensation to be paid to F.F. and posted it on the court’s notice board. 34. On 30 June 2008 the insolvency panel of the District Court endorsed a draft proposal on the distribution of the bankrupt company’s estate to the nineteen remaining creditors. It was proposed that each of them receive 2.85% of the claim acknowledged in the proceedings, which in the applicant’s case amounted to EUR 237,86. The court scheduled a further hearing for 10 September 2008 to confirm the distribution of the estate. 35. On the same day, 30 June 2008, the District Court published its decision and posted the notification of the hearing on the court’s notice board. It informed the creditors that they could lodge their objections in respect of the distribution proposal at the hearing itself or in writing before the hearing. 36. On 11 July 2008 the notification of the hearing, with its date and venue, was published in the Official Gazette. 37. On 10 September 2008 the District Court held the hearing on the distribution of the estate and confirmed the receiver’s distribution proposal. Its decision was posted on the court’s notice board on 11 September 2008 and could have been challenged within eight days. 38. As no appeal was lodged against the decision of 10 September 2008, it became final on 20 September 2008. 39. A few weeks later the applicant became aware that the decision on distribution had already been issued. On 24 November 2008 he sent a letter to the District Court, asking it to serve him with the decision of 10 September 2008 so that he could lodge an appeal against it. 40. In its reply of 27 November 2008 the District Court asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision. 41. On the same day the court decided to terminate the proceedings. It ruled that since the applicant had refused to accept the sum awarded to him, it should be deposited with the court. 42. On 3 December 2008 the applicant amended his submission in accordance with the court’s inquiry of 27 November 2008, specifying that he was complaining against the decision of 10 September 2008 (see paragraph 37 above). 43. On 4 December 2008 the applicant appealed against the decision of 27 November to terminate the bankruptcy proceedings (see paragraph 41 above). He argued that he had not been properly informed about the hearing of 10 September 2008 on the distribution of the estate (see paragraph 37 above) and that it was unrealistic to expect him to follow for eight years the notices posted on the court’s board and to read all the Official Gazettes in order to be informed of the progress in the proceedings. Moreover, he maintained that he should have been awarded the full amount claimed in the bankruptcy proceedings, since, like all the other employees to whom the company owed salary arrears, he had been a priority creditor in those proceedings. 44. On 18 December 2008 the Slovenj Gradec District Court, considering the applicant’s submissions of 24 November and 3 December as an appeal against the decision of 10 September, rejected the appeal as being out of time. 45. On 29 December 2008 the applicant lodged an appeal against the above decision. He argued that he had not been properly informed about the bankruptcy proceedings, that he should have been treated as a priority creditor, and that the bankruptcy court should have ruled ex officio on whether his claims had been ranked correctly and granted him the full amount claimed. 46. On 4 May 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 27 November 2008 (see paragraph 41 above), holding that he should have challenged the ranking of his claims at the hearing before the first-instance court. Relying on section 164 of the Compulsory Composition, Bankruptcy and Liquidation Act (see paragraph 51 below), it further concluded that the hearing on the distribution of the estate had been correctly scheduled. 47. On 22 June 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 18 December 2008. 48. On 17 July 2009 the applicant lodged a constitutional complaint against the decisions of the Higher Court of 4 May and 22 June 2009, reiterating in substance his complaints before the lower courts. 49. On 4 December 2009 the Constitutional Court rejected the applicant’s constitutional complaint.