FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47097/99 by SLOVENSKÉ TELEKOMUNIKÁCIE, š.p., HEROLD TELE MEDIA, s.r.o. and František EKE against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 23 March 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 15 March 1999 and on 11 May 1999,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Slovenské telekomunikácie, š.p., was a State -owned company founded by the Ministry of Transport, Telecommunications and Public Works. The application on its behalf was filed by Mr Franti šek Eke whom the council of creditors appointed as director of the company in the context of settlement proceedings initiated under the relevant provisions of the Bankruptcy Act of 1991 (for further details see below). As from 1 April 1999 the company has been transformed into a joint stock company which took over all rights and obligations of its predecessor.

The second applicant, Herold Tele Media, s.r.o., is a private limited company with registered office in Bratislava. It is represented by Mr Ivan Matušík .

The third applicant, Mr František Eke, is a Slovakian national who was born in 1957 and lives in Bratislava. His application was introduced on 11 May 1999.

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

1. Refusal to enter in the companies register the sale of several subsidiaries of Slovens ké telekomunikácie, š.p.

(a) Background information

On 16 January 1996 private company HBD Slovakia, spol. s r.o. (of which Herold Tele Media, s.r.o. is the legal successor) requested the Bratislava City Court to start settlement proceedings ( dohodovacie konanie ), within the meaning of Section 4 et seq. of the Bankruptcy Act of 1991, in respect of the State-owned company Slovensk é telekomunikácie , š.p.. The plaintiff claimed that the debtor had failed to comply with its contractual obligations in respect of several creditors.

According to the action, the debts of Slovensk é telekomunikácie , š.p. in respect of four creditors mentioned in it amounted to 22,413,247,534.20 Slovakian korunas (SKK) and thus clearly exceeded its assets amounting to SKK 10,755,766,000. Finally, the plaintiff claimed that the debtor was to submit a list of its creditors within three days, to convoke a meeting of the creditors within thirty days and to abstain from alienating or mortgaging its property.

On 20 August 1996 the Government of the Slovak Republic decided, following an inquiry addressed to it by the City Court, not to authorise an adjudication on bankruptcy of Slovensk é telekomunikácie , š.p.. Such an authorisation was a prerequisite for declaring the above company bankrupt as it fell under Section 67(4)(c) of the Bankruptcy Act of 1991. The Minister of Justice was instructed to notify this decision to the Bratislava City Court.

On 24 October 1996 the Bratislava City Court discontinued the proceedings. Reference was made to Article II of Act No. 292/1996 and to the fact that the defendant fell under Section 67(3) of the Bankruptcy Act of 1991 as it was a State-owned company of strategic importance, within the meaning of the relevant law. According to the decision, the proceedings in question concerned an adjudication on the company's bankruptcy.

On 19 November 1996 the plaintiff appealed stating that the first instance decision had been served on 5 November 1996. Its representative referred to the fact that a group of Members of Parliaments had challenged Act No. 292/1996 before the Constitutional Court and that the proceedings were pending.

On 11 December 1996 a meeting of creditors of Slovensk é telekomunikácie, š.p. was held in the premises of a Notary Public in Bratislava. The participants elected a council of creditors, within the meaning of Section 4a(5) of the Bankruptcy Act. On the same day the council of creditors suspended the exercise of functions of the managers of Slovenské telekomunikácie, š.p. during the period of settlement proceedings with reference to Section 4e(2) of the Bankruptcy Act. With reference to the same provision, the council of creditors appointed Mr F. Eke as “director of Slovenské teleko munikácie, š.p. in settlement proceedings ”.

On 26 March 1997 the Supreme Court upheld the City Court's decision of 24 October 1996. A stamp on the Supreme Court's decision of 26 March 1997 indicates that it became final on 24 July 1998.

On 24 April 1998 Herold Tele Media, s.r.o. filed a new appeal against the Bratislava City Court's decision of 24 October 1996. In the appeal the plaintiff alleged that the City Court's decision had been formally served on 9 April 1998 and pointed out that Article II of Act No. 292/1996 had been invalidated as a result of the Constitutional Court's finding of 3 March 1998.

On 3 September 1998 the Supreme Court discontinued the proceedings. The decision stated that the matter had become res judicata on 24 July 1998 following the service of its above decision of 26 March 1997.

(b) Proceedings relating to the entry in the companies register of the sale of several subsidiaries of Slovenské telekomunikácie, š.p.

On 30 January 1997 “Slovensk é telekomunikácie, š.p. in settlement proceedings ” , represented by Mr F. Eke, sold four subsidiaries of the company to Herold Telemedia, s.r.o.. The sale had been approved, on 28 January 1997, by the council of creditors with reference to Section 4e(3) of the Bankruptcy Act of 1991.

On 11 March 1997 “Slovensk é telekomunikácie, š.p. in settlement proceedings ” , represented by Mr F. Eke, requested the Bratislava I District Court to enter the sale in the companies register.

On 17 July 1997 the Bratislava I District Court delivered a decision by which it allowed the entry of the sale in the companies register.

The representatives of Slovensk é telekomunikácie, š.p. appealed.

On 23 September 1997 the Bratislava Regional Court reversed the first instance decision in that it dismissed the above request for a change in the companies register. The decision stated that the Bratislava City Court had discontinued bankruptcy proceedings in respect of Slovensk é telekomunikácie, š.p. on 24 October 1996 and that its decision had been upheld by the Supreme Court on 26 March 1997. Furthermore, Slovensk é telekomunikácie, š.p. was explicitly listed in Section 2(b) of Act No. 192/1995 as a company of strategic importance and, as such, fell under Section 67(4)(c) of the Bankruptcy Act of 1991. In the appellate court's view, the actions taken by the council of creditors under the Bankrutpcy Act of 1991 had no legal effect as the bankruptcy proceedings in respect of Slovensk é telekomunikácie, š.p. had been discontinued at the moment when the relevant amendment had been made in the companies register.

“Slovensk é telekomunikácie, š.p. in settlement proceedings ” filed an appeal on points of law. Its representative alleged that the appellate court's decision was erroneous and that it had decided without having heard the parties.

On 11 January 1999 Herold Tele Media, s.r.o. requested the Supreme Court to admit it as a party to the proceedings on the above appeal on points of law. Its representative stated that the point at issue concerned property and rights which the company had acquired from “Slovensk é telekomunikácie, š.p. in settlement proceedings ”.

On 12 January 1999 the Supreme Court quashed both the Bratislava I District Court's decision of 17 July 1997 and the Bratislava Regional Court's decision of 23 September 1997 and discontinued the proceedings. The Supreme Court recalled that Slovensk é telekomunikácie, š.p. was a legal person governed by the State-Owned Companies Act of 1990. Section 19 of that Act provided that actions on behalf of State-owned companies were taken by directors who were appointed and revoked by the authority which had founded the company. The decision stated that the council of creditors had taken legal actions in respect of the company Slovensk é telekomunikácie, š.p. which it had not been entitled to take under the Bankruptcy Act of 1991. Accordingly, the request for the above amendment to be made in the companies register had been filed by a person who had lacked standing to act on behalf of Slovensk é telekomunikácie, š.p. Reference was made to Article 200a(1) and 200b(1) of the Code of Civil Procedure.

The decision further stated that the bankruptcy proceedings in respect of Slovensk é telekomunikácie, š.p. had been discontinued by a decision delivered by the Supreme Court on 30 March 1998 which had become final.

The Supreme Court did not hold a hearing.

2. Proceedings before the Constitutional Court

On 10 February 1999 “Slovenské teleko munikácie, š.p. ” and Mr F. Eke filed a petition under Article 130(3) of the Constitution with the Constitutional Court. They alleged a violation of their right to judicial protection and to a public hearing with reference to the above Supreme Court's decision of 12 January 1999. They requested that the decision be quashed.

On 19 March 1999 a constitutional judge invited the legal representative of the petitioners to eliminate formal shortcomings in the submissions. In particular, the lawyer was invited to submit an authority from the person duly authorised to act on behalf of Slovenské teleko munikácie, š.p.. The letter stated that the Constitutional Court did not accept the explanation that the action on behalf of the company was taken pursuant to a decision of the council of creditors. As regards Mr F. Eke, the letter stated that it had not been shown that any of his constitutional rights were affected as a result of the Supreme Court's decision complained of. The lawyer was invited to bring the petition into conformity with the formal requirements within ten days after the receipt of the letter. The letter was served on the lawyer on 8 April 1999.

In a letter dated 17 April 1999 and delivered to the Constitutional Court on 22 April 1999 the lawyer submitted further information. The letter stated, inter alia , that the Supreme Court had violated Mr F. Eke's right guaranteed by Article 14 of the Constitution, under which everybody is entitled to enjoy rights, since it had considered void his legal action taken on behalf of Slovenské telekomunik ácie, š.p..

In a decision dated 24 April 1999 the Constitutional Court rejected the petition on the ground that the petitioners had failed to eliminate shortcomings in the petition. The decision stated that it had not been shown that Slovenské telekomunik ácie, š.p. had duly authorised the lawyer to represent it in the proceedings. Furthermore, Mr F. Eke had not been a party to the proceedings before the Supreme Court and his petition was incomplete.

B. Relevant domestic law and practice

1. The Constitution

Pursuant to Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition ( podnet ) presented by any individual or a corporation claiming that their rights were violated.

2. The Bankruptcy Act of 1991

The second part of the Bankruptcy Act of 1991 ( Zákon o konkurze a vyrovnaní , No. 328/1991 Coll.) is entitled “Bankruptcy”. Between 1 June 1993 and 31 January 1998 it comprised Sections 4 and 4a to 4g which provided for settlement proceedings. Such proceedings were to follow a bankruptcy petition and preceded the declaration of a person bankrupt. The relevant provisions, which were repealed with effect from 1 February 1998, stipulated as follows.

Pursuant to Section 4(1), courts were not entitled to decide on a person's bankruptcy prior to the termination of settlement proceedings. Section 4(3) provided that the aim of the settlement proceedings was to permit the debtor to resolve his or her situation and the creditors to have their claims satisfied.

Under Section 4a(2) and (5), the debtor was to convoke a meeting of creditors within thirty days after the service of a creditor's request for settlement proceedings to be brought. A council of creditors was to be elected at the meeting of creditors.

Section 4e(2) and (3) provided that the council of creditors was entitled to suspend the persons authorised to act on behalf of the company under its articles in the exercise of their functions, to nominate managers of the debtor company for the period of settlement negotiations, to authorise a person to supervise the debtor's business activities, to participate in the elaboration of a re-stabilisation project and to control its implementation. The council of creditors was also authorised to approve the use of property by the debtor.

Under Section 4f, the aim of the project of re-stabilisation was to ensure the improvement of the debtor's financial situation with a view to preventing his, her or its bankruptcy. Such a project had to specify measures to be taken including the time-table for paying-off the debts. The council of creditors was obliged to submit an approved project of re-stabilisation to the court within sixty days from its election.

Pursuant to Section 4g(1)(b), a court had to terminate settlement proceedings in the event that the council of creditors failed to submit to it an approved project of re-stabilisation within sixty days from the election of the council of creditors.

Pursuant to Section 67(3), the Bankruptcy Act of 1991 is not applicable to State bodies financed from the State budget, to municipalities and to legal persons established by virtue of a law.

Pursuant to Article I of Act No. 292/1996, Section 67(3) of the Bankruptcy Act of 1991 was amended, with effect from 16 October 1996, in that bankruptcy proceedings were also excluded in respect of State-owned companies listed in a special law.

Under Article II of Act No. 292/1996 courts were obliged to discontinue bankruptcy proceedings in respect of debtors set out in Section 67(3) of the Bankruptcy Act of 1991 where the person concerned had not been declared bankrupt at the moment of the entry into force of Act No. 292/1996 on 16 October 1996. Article II of Act No. 292/1996 became ineffective following a Constitutional Court's finding of 3 March 1998 (see “The relevant domestic practice” below).

Section 67(4)(c) of the Bankruptcy Act of 1991 provides that the provisions of this Act are not applicable, with the exception of Sections 4a to 4g, in respect of debtors in the area of transport and telecommunications which are of strategic economic importance for the State. An exemption from this rule can be granted by the Government of the Slovak Republic.

3. The Code of Civil Procedure

Article 200a(1) provides that proceedings relating to the companies register are brought upon the request of the natural or legal person whom the entry in the register concerns or by other persons entitled to do so under the relevant law.

Pursuant to Article 200b(1), in proceedings concerning an entry in the companies register courts are obliged to examine whether the statutory requirements for making such an entry are met.

4. The State-Owned Companies Act

Section 18 of the State-Owned Companies Act ( Zákon o štátnom podniku ) of 1990 provides that the bodies of a State-owned company comprise its director and supervisory board.

Section 19(1) and (2) provide that the director is appointed and revoked by the central governmental authority which established the company.

Pursuant to Section 19(3), the director acts on behalf of a State-owned company.

5. The Commercial Code

Under Section 28(1)(e), information about a company entered in the companies register shall comprise the name and address of the persons who are the representatives of the company under its articles and also specify in which manner such persons are authorised to act on behalf of the company.

Section 31(1) provides that a request for an entry to be made in the companies register is to be filed either by authorised persons whom such an entry concerns or by persons entitled to do so in accordance with the law.

Pursuant to Section 32, courts or other authorities have to notify the court which holds the companies register of any inconsistency between the actual situation and the information in the companies register.

6. The relevant domestic practice

On 3 March 1998 the Constitutional Court found that Article I of Act No. 292/1996 was contrary to the Constitution to the extent that it excluded the bringing of bankruptcy proceedings in respect of legal persons established by a law. The Constitutional Court further found that Article II of Act No. 292/1996 was contrary to Article 1 of the Constitution which provides, inter alia, that the Slovak Republic is a State of law. The finding became effective upon its publication in the Collection of Laws on 3 April 1998.

In accordance with the Constitutional Court's practice under Article 130(3) of the Constitution (as in force at the relevant period), the Constitutional Court lacked jurisdiction to interfere with the ordinary courts' jurisdiction or to quash or to substitute the ordinary courts' decisions in civil or criminal matters (see, e.g. decision of 7 September 1993 in case No. I. ÚS 26/93 or decision of 2 December 1994 in case No. I. ÚS 59/94). According to its case-law, the Constitutional Court lacked jurisdiction to draw legal consequences from the finding of a violation of a petitioner's rights. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court's view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.

According to the internet version of the companies register held by the Bratislava I District Court (which expressly states that the data contained therein are not legally binding), Slovensk é telekomunikácie, š.p. was a State-owned company until 31 March 1999. It was founded by the Ministry of Transport, Telecommunications and Public Works. Its director, or deputy director in his absence, was authorised to take actions and sign documents on behalf of the company. The information in the companies register further indicates that between 9 June 1995 and 3 February 1999 Mr F.D. was authorised to act on behalf of the company under its articles.

A different part of the companies register file concerning Slovensk é telekomunikácie, š.p. is entitled “Further legal issues”. It comprises an entry covering the period from 28 January 1997 to 31 March 1999 which reads as follows:

“Decision No. 47/96 by the director general of Slovensk é telekomunikácie, š.p. of 2 November 1996. For the period of settlement negotiations the council of creditors suspended, within the meaning of Section 4e(2)(a) of the Bankruptcy Act, the exercise of functions of the persons authorised to act on behalf of the company under its articles listed in the register, and appointed Mr F. Eke as manager. During the period of settlement proceedings the director thus appointed shall represent the company and sign documents on its behalf. [The proceedings] were discontinued by a decision of the Bratislava City Court of 24 October 1996 ... in accordance with Act No. 292/1996. The Supreme Court upheld the Bratislava City Court's decision by its decision No. 1 Obo 2/97 of 26 March 1997.”

COMPLAINTS

1. The first and second applicants complain under Article 6 § 1 of the Convention that their right to a fair and public hearing was violated in the proceedings leading to the Supreme Court's decision of 12 January 1999. They allege, in particular, that the Supreme Court decided arbitrarily without having heard the parties and that it did not decide on the second applicant's request to be admitted as a party to the proceedings.

2. Under Article 13 of the Convention the first and second applicants complain that they had no remedy at their disposal in respect of the Supreme Court's decision of 12 January 1999.

3. The first and second applicants allege a violation of Article 1 of Protocol No. 1 in that (i) the second applicant was prevented from availing itself of its property as a result of the Supreme Court's decision of 12 January 1999 and (ii) the first applicant was unable to obtain counter-value for the property sold.

4. The third applicant complains under Articles 6 and 13 of the Convention that his right to a fair and public hearing and to an effective remedy was violated in that the Constitutional Court rejected his petition without having heard the parties and in disregard of the additional information submitted to it on 22 April 1999.

THE LAW

1. The applicants allege a violation of Article 6 § 1 of the Convention the relevant part of which provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by a[n] ... tribunal ...”

(a) To the extent that the first and second applicants complain that their right to a fair and public hearing was violated in the proceedings leading to the Supreme Court's decision of 12 January 1999, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

(b) To the extent that the third applicant alleges a violation of Article 6 § 1 in the proceedings before the Constitutional Court, the Court recalls that proceedings come within the scope of Article 6 § 1 of the Convention, even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations (see, inter alia , Süssmann v. Germany , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 41).

Such was not the case as regards the proceedings complained of by the third applicant. In his constitutional petition the third applicant challenged, in his personal capacity, a Supreme Court's decision delivered in proceedings to which he had not been a party. Furthermore, according to established practice under Article 130(3) of the Constitution as in force at the relevant period, the Constitutional Court neither had jurisdiction to interfere with the ordinary courts' jurisdiction or to quash or to substitute the ordinary courts' decisions in civil or criminal matters nor could it draw any legal consequences from a violation of a petitioner's rights.

The proceedings before the Constitutional Court complained of by the third applicant were not, therefore, directly decisive for his civil rights or obligations within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicants complain that they did not have an effective remedy at their disposal in respect of their complaints under Article 6 § 1. They rely on Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

(a) The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint made by the first and second applicants in respect of the proceedings leading to the Supreme Court's decision of 12 January 1999. 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.

(b) The Court has rejected the third applicant's complaint under Article 6 § 1 as being incompatible ratione materiae with the provisions of the Convention. For similar reasons, in this respect the third applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to this part of the application (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A No. 131, § 52).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The first and second applicants allege a violation of their right to the peaceful enjoyment of their property in that (i) the second applicant was prevented from availing itself of its property as a result of the Supreme Court's decision of 12 January 1999 and (ii) the first applicant was unable to obtain counter-value for the property sold. They rely on Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first and second applicants' complaints that their right to a fair and public hearing, their right to an effective remedy and their property rights were violated;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas bratza Registrar President