FOURTH SECTION

DECISION

Application no . 27183/08 Vojin MALBAŠIĆ against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 4 April 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 26 May 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the formal declarations accepting a friendly settlement of the case with respect to the length-of-proceedings complaint,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vojin Malbašić, is a Serbian national who was born in 1938 and lives in Novi Beograd (Serbia). He was represented before the Court by Mr M. Perić, a lawyer practising in Belgrade.

2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.

3. On 11 September 2012 the complaints concerning fairness of proceedings and access to court were communicated to the Government.

4. On 27 October 2016 the part of the application concerning the alleged unreasonable length of proceedings was communicated to the Government.

5. The Government of the Republic of Serbia, which had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), informed the Court that they did not wish to exercise this right.

A. The circumstances of the case

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

1. The labour proceedings

7 . In 1990, the applicant ’ s employment was terminated following the closure of the Belgrade branch office of a Slovenian company “S”. The applicant and his former co-worker, B.G., whose employment was also terminated on the same grounds, requested severance pay. Being refused such pay by company S., they instituted labour and enforcement proceedings. It would appear that, after first identifying company S. as the defendant party, they at some point made a modification in this respect and named − also or instead − company L., its presumed successor. However, on 12 September 2000 the Ljubljana Labour and Social Court delivered a judgment against company S. as the sole defendant in the proceedings. The court established that company S. still existed, since it was registered in the Court Register of Companies, and was thus rightly named as the defendant party. The court granted the claim for severance pay in the amount of twenty-four salaries, together with default interest from 31 January 1991 until the date of payment.

8 . Companies S. and L., the applicant and B.G. appealed.

9 . On 26 September 2000 the Official Gazette of the Republic of Slovenia published a decision delivered on 21 July 2000 by the competent court whereby company S. was struck off the Court Register of Companies.

10 . On 6 February 2003 the Higher Labour and Social Court dismissed the appeal lodged by company L., finding that the latter had no standing as it had not been a defendant party in the proceedings leading to the impugned judgment. As to the other appeals, the Higher Labour and Social Court upheld the lower court ’ s judgment in its entirety. It also found that the strike-off decision had been published in the Official Gazette on 26 September 2000 (see paragraph 9 above), on which date it had entailed legal effects in respect of third parties, including the courts.

2. The enforcement proceedings introduced by the applicant

11 . On 10 October 2003 the applicant lodged a request for enforcement of the final judgment of 12 September 2000 (see paragraph 7 above) against company L.V., which on 4 October 2001 had allegedly acquired company L., the presumed legal successor of the applicant ’ s initial debtor company S. The applicant relied on the provisions of the Companies Act stipulating that the founder members of a struck-off company remained liable for any remaining debts.

12 . On 14 November 2003 the Kočevje Local Court dismissed the applicant ’ s request for enforcement on the grounds that it had been lodged out of time. The court observed that, pursuant to Article 394 of the Companies Act (see paragraph 20 below), creditors of struck-off companies were allowed to pursue their claims against the former shareholders of those companies for one year after publication of the company ’ s strike-off. It held that the applicant had failed to act within the prescribed period and could therefore no longer pursue the claim against company S. ’ s legal successor.

13 . On 15 Decem ber 2003 the applicant appealed.

14. On 22 January 2004 the Kočevje Local Court stayed the enforcement proceedings due to the commencement of compulsory composition proceedings against company L.V. On 22 May 2006 the Kočevje Local Court resumed the applicant ’ s enforcement proceedings against company L.V., noting that the applicant ’ s claim as declared in the compulsory composition proceedings had been disputed and not found established.

15 . On 8 November 2006 the Ljubljana Higher Court adopted a decision dismissing, inter alia , the applicant ’ s appeal of 15 December 2003 against the decision of 14 November 2003 (see paragraphs 12 and 13 above). It noted that it could not be ignored that the debtor against whom the enforceable decision had been issued had been struck off in 2000 and consequently the effects of that enforceable judgment could not be extended to the debtor ’ s legal successors. The court reiterated that the applicant had failed to pursue his claim against the legal successor within a year of publication of the strike-off of company S., as required by Article 394 § 2 of the Companies Act (see paragraph 20 below) . The Ljubljana Higher Court concluded that the lower court had properly established the facts and applied the law.

16. On 7 March 2007 the applicant lodged a constitutional complaint, which the Constitutional Court rejected on 15 January 2008.

3. The enforcement proceedings introduced by B.G.

17 . On 14 November 2003 the Kočevje Local Court dismissed B.G. ’ s request for enforcement of the judgment granting her a severance pay (see paragraph 7 above) on the grounds that it had been lodged out of time. However, the Ljubljana Higher Court, sitting in a formation different from the one that had decided the applicant ’ s appeal in the above proceedings (see paragraph 15 above), granted an appeal by B.G and remitted the case for re-examination. In the new proceedings, the Kočevje Local Court granted B.G. ’ s enforcement request against company L.V, but this decision was overturned by the Ljubljana Higher Court which, on 3 June 2009, found that B.G. had failed to demonstrate legal succession on the debtor ’ s part.

B. Relevant domestic law

18. At the material time, the rights of creditors and the obligations of shareholders of companies struck off the Court Register of Companies were regulated by Article 394 §§ 1-3, later replaced by Article 425 §§ 1-3, of the Companies Act (Official Gazette no. 15/05 and amendments) in conjunction with Article 27 §§ 1, 4 and 5 of the Financial Operations of Companies Act (Official Gazette no. 54/1999, as amended). The latter defined the legal consequences of a strike-off and entailed the presumption that the shareholders had intended to have their company dissolved, had made a statement to the effect that all the company ’ s liabilities had been settled and had assumed liability for any outstanding debts.

19 . Article 27 of the Financial Operations of Companies Act reads, in so far as relevant, as follows:

“(1) In pursuance of this Act, a company shall be dissolved when it is struck off the Court Register of Companies.

...

(4) In the case of paragraph 1 of this Article, partners or shareholders in the company shall be presumed to have made a statement satisfying the requirements of Article 394 § 1 of the Companies Act.

(5) The provisions of Article 394 §§ 2 and 3 of the Companies Act shall also apply, mutatis mutandis , to the dissolution of the company as provided for in paragraph 1 of this Article.”

20 . Article 394 §§ 1-3 of the Companies Act reads, as far as relevant, as follows:

“(1) A company may be dissolved by a simplified procedure without going into liquidation if all the shareholders propose to the registration body the removal of the company from the register without liquidation and attach to the proposal a resolution on the dissolution of the company by simplified procedure and a declaration by all the shareholders, certified by a notary, to the effect that all the company ’ s liabilities have been settled, that all issues relating to the employees have been settled and that the shareholders will assume payment of any potential outstanding liabilities of the company.

(2) Creditors may pursue their claims vis à vis the shareholders who submitted the declaration referred to in the preceding paragraph for one year after notification of the deletion of the company from the register.

(3) The shareholders shall be jointly and severally liable with all their assets for liabilities detailed in the preceding paragraph.

...”

21 . Article 24 §§ 1 and 2 of the Enforcement and Securing of Civil Claims Act (Official Gazette no. 3/07), which provides for a change of debtor during the enforcement proceedings, reads:

“The court shall also allow the enforcement of a decision at the request of a person who is not defined as a creditor in the executive title if in the request for enforcement he or she clearly refers to a public or properly certified document showing that the claim has been transferred or passed on to it in some other way. Where this is not possible, a final decision resulting from civil proceedings may serve as proof.

The provisions of the first paragraph shall also apply, where appropriate, in respect of enforcement against a person who is not defined as a debtor in the executive title.”

COMPLAINTS

22 . The applicant complained under Article 6 § 1 of the Convention about the length and unfairness of the domestic proceedings and about a violation of his right to access to a court.

THE LAW

23. The applicant complained that Article 6 § 1 of the Convention had been violated due to the length and unfairness of the proceedings to which he had been a party and due to his lack of access to a court which would secure enforcement of his claim. The relevant part of Article 6 § 1 reads as follows:

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

A. As regards the complaint concerning the length of the proceedings

24. On 15 and 22 December 2016 the Court received friendly settlement declarations signed by the parties under which the applicant agreed to waive any further claims against Slovenia in respect of the facts giving rise to his complaint about length of proceedings under Article 6 § 1 of the Convention against an undertaking by the Government to pay him EUR 6,600 (six thousand six hundred euros) to cover any non-pecuniary damage as well as costs and expenses, which will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court to strike this part of the application out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case in the part concerning the complaint about length of proceedings under Article 6 § 1 of the Convention.

25. The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of this part of the application. In view of the above, it is appropriate to strike the case out of the list insofar as it relates to the complaint about the unreasonable length of proceedings.

B. As regards the complaints concerning access to court and fairness of proceedings

26 . The applicant complained that he had been precluded from successfully pursing the enforcement proceedings against the debtor, that the domestic courts had misapplied the relevant domestic law and decided his appeals unfairly and, finally, that two different panels of the same court had decided in favor of B.G. whilst rejecting his enforcement request, even though the legal situation was identical in both cases. The applicant argued that the claim which should have been enforced amounted to EUR 31,131.79.

27. Referring to Article 35 § 3 (b) of the Convention, the Government argued that the applicant had not suffered a significant disadvantage as the alleged violation had not, in their opinion, attained the requisite threshold of seriousness to justify examination by the Court.

28. The Government further argued that the applicant ’ s complaint was essentially concerned with the interpretation and application of domestic law and that it was not the Court ’ s place to decide such issues. In their opinion, the time ‑ limit within which a creditor must request the enforcement of a claim was an entirely permissible restriction on access to court. Finally, the Government argued that there is no contradiction between the outcome of the enforcement proceedings in the applicant ’ s and B.G. ’ s case.

29. The Court considers that it is not necessary to examine the objection concerning non-significant disadvantage raised by the Government, as this part of the application is in any case inadmissible for the following reasons.

30 . As regards the applicant ’ s complaint of being precluded from successfully pursuing enforcement proceedings, the Court notes that the applicant ’ s enforcement request was dismissed because of the domestic courts ’ application of the time-limit for pursuing claims against the shareholders of the struck-off companies . In particular, the domestic courts found that the applicant should have instituted proceedings against company S. ’ s legal successor within a year from the publication of company S. ’ s striking-off, as required by Article 394 § 2 of the Companies Act (see paragraphs 12, 15 and 20 above) . The Court observes in this regard that the relevant provisions of the domestic legislation referred to shareholders (see paragraphs 19 and 20 above), but it appears that after the company ’ s striking-off the former shareholders became legal successors with respect to the company ’ s assets and, indeed, the courts as well as the applicant himself (see paragraph 11 above) referred to those provisions as applicable to the legal successors in the applicant ’ s case.

31. Furthermore, the Court considers that the rules governing the time-limits to be complied with in the situation where a debtor company had been struck off were aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty. Litigants should expect those rules to be applied (see, mutatis mutandis , Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 33, ECHR 2000-I).

32 . As to the question whether the time-limit applied to the applicant ’ s case excessively restricted his right to access to court under Article 6 § 1 of the Convention (see the general principles stated in McElhinney v. Ireland [GC], no. 31253/96, § 34, ECHR 2001-XI (extracts), and Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999-V ), the Court reiterates that according to the Kočevje Local Court ’ s and the Ljubljana Higher Court ’ s opinions, the applicant should have pursued his claim against the alleged legal successor of company S. within one year from the publication of the striking-off, in order to secure the enforcement of his claim against that successor (see paragraphs 12 and 15 above). It is true that company L., which had been presumed legal successor of company S. and was allegedly subsequently acquired by company L.V. (see paragraph 11 above), had possibly been involved at an earlier stage of the labour proceedings (see paragraph 7 above), but that had been before the publication of the company S. ’ s striking-off. In particular, the Ljubljana Labor and Social Court ’ s judgment, which granted the applicant severance pay and was delivered before the aforementioned publication, was binding only on company S. (see paragraphs 7 and 9 above). Moreover, the rejection of company L. ’ s appeals by the Higher Labour and Social Court confirms that the applicant at that point pursued the proceedings solely against company S. (see paragraph 10 above).

33. The Court further notes that the one-year time-limit was clearly stated in domestic legislation relied on by the domestic courts (see Article 394 § 2 f the Companies Act, cited in paragraph 20 above). Also, the applicant did not claim to be unaware of the fact that company S. had been struck off.

34. The Court therefore finds nothing to suggest that the applicant was unable to pursue proceedings against company S. ’ s successor within a year from the publication of company S. ’ s striking-off with a view to securing the possibility of enforcing his claim (see paragraphs 12, 15 and 20 above). It points out that it was for the applicant to show that the one-year time-limit should not have applied to his situation or that he had been following company S. ’ s striking-off unable to pursue within the said time-limit any proceedings against its presumed legal successor. He, however, has not shown that.

35. Lastly, the Court must address the applicant ’ s complaint about conflicting outcome of his and B.G. ’ s proceedings. The Court observes that the Ljubljana Higher Court, on 3 June 2009, overturned the decision granting B.G. ’ s enforcement request (see paragraph 17 above). It therefore cannot be said that B.G. ’ s proceedings ended in her favor, as alleged by the applicant. Notwithstanding the foregoing and recalling the criteria set out in Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no. 13279/05, §§ 49-58, 20 October 2011), the Court notes that even if the two decisions of the Higher Court had been conflicting, it has not been argued, let alone demonstrated, that there existed “profound and long-standing differences” in the relevant domestic case-law.

36. In the light of the foregoing, and recalling that it is not its task to take the place of the domestic courts (see Miragall Escolano and Others , cited above, § 33), the Court finds that the court decisions issued in the applicant ’ s case were neither arbitrary nor manifestly unreasonable. It therefore sees no call to intervene in the present situation under Article 6 § 1 of the Convention in the field of interpretation of domestic legislation (see, mutatis mutandis , Pivdenbudtrans, PAT v. Ukraine (dec.), no. 38713/04, 15 April 2014).

37. In view of the above considerations, the Court finds that the applicant ’ s complaint concerning the alleged unfairness of the proceedings and lack of access to court under Article 6 § 1 of the Convention should be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaint under Article 6 § 1 of the Convention about the unreasonable length of proceedings ;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 4 May 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President