CASE OF IMMOBILIA BAU KFT. v. HUNGARY
Violation of Art. 6-1
4. The applicant is a limited liability company with its seat in Miskolc. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 27 November 1990 the liquidation of the Diósgyőr Machine Factory Ltd. (“the Factory”) was ordered by the Borsod-Abaúj-Zemplén County Regional Court. However, during the liquidation procedure, the Factory remained partly active, in order to minimise losses. 7. Between April 1991 and January 1994, the predecessor of the applicant was a supplier of the Factory. As the Factory was unable to pay for the services already rendered – the outstanding fees amounted to 8,528,183 Hungarian Forints (approximately 32,421 euros) – the applicant became a creditor in the liquidation proceedings. 8. On 31 August 1994 the Factory's liquidator prepared the closing balance sheet. The liquidator was of the view that the satisfaction of all the creditors in cash was impossible. Instead of payment in cash, it therefore offered shares in the Factory, but the applicant declined the proposal. 9. On 21 February 1995 the applicant objected (kifogás) to the closing balance sheet and insisted on payment in cash. 10. On 4 July 1995 the Borsod-Abaúj-Zemplén County Regional Court accepted the closing balance sheet. On appeal on 29 May 1997, the Supreme Court, acting as a second-instance court, quashed this decision due to procedural shortcomings. It found, inter alia, that the Regional Court had not dealt with the applicant's objection. The Supreme Court held that the liquidator was under an obligation to attempt to sell the shares of the Factory first and then satisfy the creditors from the sums received. The Supreme Court's decision arrived at the Regional Court on 15 July 1997. 11. On 10 December 1997 the Regional Court ordered the liquidator to prepare a new closing balance sheet. 12. On 19 January 1998 the liquidator informed the Regional Court that the sale of the shares was only possible well below their nominal value. The liquidator also informed the Regional Court about the ongoing negotiations with possible investors and requested an extension of the time-limit for the preparation of the closing balance sheet. The Regional Court registered the liquidator's request. 13. On 17 September 1998 the liquidator announced that its attempt to sell the shares had been unsuccessful and requested the Regional Court to accept an amended closing balance sheet. 14. On 18 February 2000 the liquidator informed the Regional Court about an update to the closing balance sheet. 15. On 22 January 2001 the applicant initiated negotiations with the liquidator. At a meeting held on 20 February 2001, the liquidator acknowledged that it had satisfied some of the creditors more favourably than the applicant, but had only done so to keep the Factory at least partly active. 16. On 23 January 2001 the applicant lodged a complaint with the Regional Court about the lack of a final decision in the case. 17. On 29 March 2001 the applicant raised an objection before the Regional Court, asking the court to terminate the liquidation proceedings. 18. On 1 July 2004 the Regional Court dismissed the applicant's complaint without examining its merits. 19. Subsequently, on 2 April 2001 the applicant lodged another complaint with the Regional Court and requested the appointment of an expert auditor in order to establish whether the liquidator had breached its duties. 20. On 12 October 2004 the Regional Court dismissed the applicant's second complaint. The applicant appealed. On 15 September 2005 the Debrecen Court of Appeal upheld the first-instance decision. 21. Meanwhile, on 30 January 2002 the Regional Court ordered the liquidator, under pain of a fine and deletion from the register of liquidators, to produce the closing balance sheet within 30 days or inform the court about any obstacles. 22. On 4 March 2002 the liquidator informed the Regional Court that the liquidation procedure was at an advanced stage, but requested the court to forbear from demanding the closing balance sheet “because of difficulties in obtaining, handling and classifying certain documents”. The liquidator added that the unsuccessful attempt to reach a settlement with the applicant had also delayed the proceedings. 23. On 8 June 2004 the Regional Court again requested information from the liquidator about the obstacles to finishing the procedure. 24. On 1 July 2004 the liquidator informed the Regional Court that it was still facing the same difficulties and, therefore, was not able to produce the closing balance sheet. 25. On 4 February 2005 the liquidator prepared an additional closing balance sheet. The Borsod-Abaúj-Zemplén County Tax Authority audited that document, which was then lodged with the Regional Court on 19 October 2006. 26. The liquidation procedure is apparently still pending. 27. On 20 April 2001 the applicant brought an action for compensation against the liquidator before the Borsod-Abaúj-Zemplén County Regional Court. 28. On 8 May 2001 the Regional Court stayed the proceedings. On appeal, on 6 September 2001 the Supreme Court, acting as a second-instance court, reversed the first-instance decision and ordered the continuation of the proceedings. 29. In the resumed proceedings, on 30 October 2001 the Regional Court found that it had no jurisdiction to deal with the case and transferred it to the competent Miskolc District Court. The Supreme Court, acting as a second-instance court, upheld this decision on 19 December 2002. 30. On 2 April 2003 the District Court dismissed the applicant's case, finding that the procedure followed by the liquidator had complied with the relevant domestic law. Moreover, it pointed out that the applicant had failed, despite warnings, to request the appointment of an auditor, whose opinion would have been the only acceptable proof for the establishment of the defendant's liability. 31. On appeal, on 21 November 2003 the Borsod-Abaúj-Zemplén County Regional Court upheld the first-instance decision. The applicant lodged a petition for review with the Supreme Court. 32. On 14 July 2004 the Supreme Court dismissed its petition, without an examination on the merits, as inadmissible, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure. 33. In 2004 the applicant brought an official liability action against the Borsod-Abaúj-Zemplén County Regional Court before the Miskolc District Court. 34. As the District Court had no jurisdiction to hear the case, on 1 September 2004 the Budapest Court of Appeal had appointed the Szabolcs-Szatmár-Bereg County Regional Court to proceed. 35. On 24 January 2005 the County Regional Court dismissed the applicant's case. It pointed out that the domestic courts dealing with the matter had kept regular contact with the liquidator and repeatedly ordered it to produce the closing balance sheet. It also noted that the relevant domestic law did not contain a specific deadline to finish a liquidation procedure. The Regional Court acknowledged that there had been some delays imputable to the courts dealing with the case, but was of the view that these delays had not caused any damage to the applicant, given that the possibility of recovering the money owed by the debtor had in any event been very low. 36. On appeal, on 29 September 2005 the Debrecen Court of Appeal upheld the first-instance decision.