SULVA v. SLOVAKIA
Inadmissible
Nicolas Bratza
The applicant, Mr Milan Šulva, is a Slovakian national, who was born in 1953 and lives in Bratislava. He is represented before the Court by Ms I. Abelovská, a lawyer practising in Bratislava. The applicant acted as receiver in bankruptcy of a State-owned company. On 12 January 1999 he submitted his final report to the Bratislava Regional Court for approval. It indicated the sum obtained from the sale of the company's assets and also the receiver's costs and his remuneration. The bankrupt company and its creditors filed no objections to the report. On 28 April 1999 the Regional Court heard the applicant and a representative of the bankrupt company. The latter stated that he did not object to the receiver's report subject to its conformity with the relevant law. On the same day the Regional Court delivered a decision in which it approved of the report with a modification concerning the applicant's remuneration. The decision stated that the applicant had not determined the sum due to him in accordance with Sections 6(a) and 7(1) of Regulation No. 493/1991 as amended. In the Regional Court's view, the applicant had mistakenly included in the sum obtained through realisation of the bankrupt's assets (which serves as the first component for determination of a receiver's remuneration) the sum of 591,451.65 Slovakian korunas (SKK) which the company in bankruptcy had in its bank account at the moment of adjudication of bankruptcy. The receiver calculated the second part of his remuneration (based on the sum reserved for satisfying the creditors' claims obtained as a result of receiver's activities) in that he had repeatedly included in it the sum obtained as a result of realisation of the assets after deduction of claims relating to those assets, of sums to which the bankrupt's employees had been entitled as well as of other items. The Regional Court therefore modified the calculation of remuneration submitted by the applicant in that it deducted SKK 591,451.65 from the sum representing the income from realising the bankrupt's assets and administration of its property. The remaining sum, which included SKK 361,256,579.04 (obtained as a result of realising the assets) and SKK 44,066,825, 23 (sum reserved for satisfying the creditors' claims obtained in the course of the administration in bankruptcy), served as the basis for determining the receiver's remuneration. Considering that the administration in bankruptcy carried out by the applicant had been complex, the Regional Court increased the remuneration by 20 per cent as the relevant law permitted. On 16 June 1999 the applicant appealed. He submitted reasons for the appeal on 7 July 1999. He argued that the Regional Court had disregarded the fact that no objections had been filed to his report and concluded that the court had exceeded its power in that it had modified a part thereof. He further submitted that the Regional Court had incorrectly interpreted Section 6(a) of Regulation No. 493/1991, as amended by Regulation No. 358/1996, in that it had excluded from the second component of his remuneration the sum obtained as a result of realisation of the bankrupt's property and that the sum which the bankrupt had had in its account at the moment of adjudication of bankruptcy had not been taken into consideration when determining the sum on the basis of which his remuneration was to be calculated. In support of his argument the applicant referred to two decisions delivered by the Banská Bystrica Regional Court in 1998 and in 1999. He also referred to doctrinal interpretation of the relevant law published in the Slovak Bar Bulletin in 1998 and in a law review. On 23 November 1999 the Supreme Court upheld the Regional Court's decision concerning the sum which was due to the applicant. In its judgment the Supreme Court summed up the reasoning of the first instance court and the arguments put forward in the appeal without mentioning, however, the above two Banská Bystrica Regional Court's decisions of 1998 and 1999 relied upon by the applicant. The reasons for the Supreme Court's decision read as follows: “[Under Section 6(a) of Regulation No. 493/1991, as amended,] a bankruptcy receiver's remuneration is composed of the addition of remuneration determined on the basis of the sum obtained as a result of realisation of the bankrupt's property after adjudication of bankruptcy and of remuneration determined on the basis of the sum which is reserved for satisfying the creditors' claims and which the receiver obtained as a result of other activities than realisation of assets, such as filing claims with courts or proposing enforcement of decisions etc. In the present case the first instance court [in accordance with the relevant provisions of the Bankruptcy Act] had before it the final report on realisation of assets and on remuneration and expenses and examined it at the hearing held on 28 April 1999 in the course of which the bankrupt's representative stated that he did not object to the receiver's remuneration subject to its second component being in accordance with the law. The first instance court ... came to the conclusion that the remuneration had not been calculated in accordance with Section 6 of Regulation No. 493/1991, as amended by Regulation No. 358/1996, and modified the remuneration due. The appellate court also reached the conclusion that the sum of SKK 591,451.65 which had been deposited in the bankrupt's bank account prior to adjudication of bankruptcy could not serve as the basis for determining the first part of the receiver's remuneration as that sum had not been obtained as a result of realisation of the bankrupt's assets. The second part of remuneration should be determined on the basis of the sum obtained by the receiver through other activities than realising the assets. In the case under consideration the approved final report indicates that other incomes have amounted to SKK 44,066,825.23. The incomes from realising the assets and from other activities total SKK 405,323,404.27 and this sum serves as the basis for determining the receiver's remuneration under Section 7 of Regulation No. 493/1991, as amended by Regulation No. 358/1996... The first instance court decided correctly when concluding that the receiver's remuneration amounted to the sum mentioned.” The Supreme Court's decision was subsequently published in the Collection of opinions of the Supreme Court and of courts' decisions under No. 51/2000. The conclusion was emphasised according to which a sum which a debtor had in a bank account prior to adjudication of bankruptcy is not to be included in the sum on the basis of which a receiver's remuneration is determined as it was not obtained as a result of realisation of the bankrupt's assets. Regulation No. 493/1991, as amended by Regulation No. 358/1996, governs the implementation of certain provisions of the Bankruptcy Act of 1991. Section 6(a) provides that the basis for determining the remuneration of a receiver in bankruptcy is composed of the sum obtained through realisation of the bankrupt's assets and of the sum reserved for satisfying the creditors' claims which the receiver obtained in the course of carrying out his or her duties. Under Section 7(1) of Regulation No. 493/1991, as amended, a receiver in bankruptcy is entitled to remuneration equal to 10 per cent of the sum mentioned in Section 6(a), the minimum remuneration being SKK 50,000.