Information Note on the Court’s case-law 29

April 2001

Sablon v. Belgium - 36445/97

Judgment 10.4.2001 [Section III]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Revocation of bankruptcy proceedings: Article 6 applicable

Article 35

Article 35-1

Exhaustion of domestic remedies

Final nature of decisions on inadmissibility and absence of appeal

Facts : On 14 September 1971 the Nivelles Commercial Court adjudged the applicant bankrupt, following a petition by the National Social Security Office ( Office national de sécurité sociale – “the ONSS”) for non-payment of sums owed by him, and appointed two trus tees in bankruptcy, D. and B., who were subsequently replaced by a new trustee, J. In April 1990 the applicant applied to the Nivelles Commercial Court to reopen proceedings with a view to having the bankruptcy order of 14 September 1971 rescinded, availin g himself of the requête civile remedy whereby civil proceedings may be reopened in certain specified circumstances – for example,  if fresh evidence comes to light or it is discovered that forged documents or false evidence were used in the original proce edings.  In a judgment of 6 September 1993 the Commercial Court rescinded the bankruptcy order but, in view of the difficulty of restoring the applicant’s assets to how they had stood on 14 September 1971 (the date on which he had been adjudged bankrupt), decided that the proceedings should be resumed at a later date. D., B., J. and the ONSS appealed against that judgment. During the appeal proceedings the applicant lodged an appeal against the judgment of 14 September 1971; the Brussels Court of Appeal dec ided to join his appeal to those lodged against the judgment of 6 September 1993 in view of the close connection between them. At the end of the proceedings, in a judgment of 18 June 1999, the Court of Appeal declared the appeal against the judgment of 14 September 1971 inadmissible on the ground that it had not been lodged within fifteen days after service of that judgment. In a second judgment delivered that same day the Court of Appeal declared inadmissible the applicant’s April 1990 application to reope n proceedings, on the ground that the facts which had been adduced by the applicant in support of the application and accepted in the judgment of 6 September 1993 did not satisfy the admissibility criteria for a requête civile . The applicant had been aware of those facts before the expiry of the time allowed for lodging an ordinary appeal and, a fortiori , for much longer than six months before he had applied to reopen the proceedings. In November 1999 the applicant lodged, inter alia , an appeal on points of law against that judgment. In addition, as soon as the judgment of 6 September 1993 rescinding the bankruptcy order had been delivered, the applicant had instituted various proceedings to secure its enforcement. The proceedings in connection with applicat ions by him to recover the sums held by J. began when he and J. appeared voluntarily in Nivelles Commercial Court in September 1993. The court ordered an interim payment of a specified sum. An application by a third party – the applicant’s former wife – to set aside the order was declared admissible but ill-founded, as was an application by the ONSS to join the proceedings. The applicant’s former wife and the ONSS appealed against that decision in April 1995. After declaring their appeal admissible in June 1996 and finding in March 1997 that there was no need to issue any interim decisions, the Court of Appeal adjourned the case indefinitely. In December 1993 the applicant had brought a further action in the Nivelles Commercial Court to recover all the sums of money or accounts still in J.’s possession. The court declined jurisdiction in May 1994. The applicant also applied for an attachment, but his application was rejected in June 1994. In April, May and June 1996 he requested a bailiff to serve an order on J. for the immediate payment of all the sums required for restitution of the applicant’s assets in integrum . That request was refused by the bailiff in question and by others approached by the applicant. In addition, the Nivelles judge dealing with the attachment of property authorised the ONSS to make an interim attachment of a sum held by J. which it was owed by the applicant. The applicant applied as a third party to set aside the attachment order, and in May 1995 the judge ordered the attachment to be lifted. The ONSS appealed and in May 1997 the Brussels Court of Appeal set aside the order lifting the attac hment. The Court of Cassation quashed that judgment and remitted the case to the Mons Court of Appeal, where it is apparently still pending. In May 1996 the applicant applied to recover the funds deposited by J. at the Bank for Official Deposits ( caisse de s dépôts et consignations ) in connection with the previous proceedings, but his application was not allowed. In August 1995 the applicant applied for a judicial order enjoining P., the trustee in bankruptcy for one D.-J., not to dispose of a collection of Impressionist paintings which the applicant had placed in D.‑J.’s care. In a judgment of October 1998 the Nivelles Court rejected the applicant’s application. An appeal by the applicant against that judgment is still pending. The applicant complained, inte r alia , of the length of various proceedings.

Law : Article 6 – According to the Court’s case-law, Article 6 did not apply to the examination of an application to reopen civil proceedings. The use of the requête civile remedy with a view to rescinding the b ankruptcy order was to be regarded as an application to reopen proceedings. Consequently, the proceedings commenced in April 1990 could not at the outset have involved the determination of civil rights and obligations. However, the procedure for dealing wi th an application to reopen proceedings could be divided into two stages. The first consisted in determining whether the evidence produced in support of the application constituted fresh facts warranting the reopening of a case in which a final judgment ha d been delivered. If so, a second stage was initiated in which the case is re-examined in its entirety in the light of all the evidence, including the fresh facts. If at the outset the case involved the determination of civil rights and obligations or crim inal charges within the meaning of Article 6, it would continue to do so in the event of a decision to reopen proceedings, since such a decision entailed a fresh examination of the merits. In that connection, the Court noted that on 6 September 1993 the Co mmercial Court had allowed the application to rescind the bankruptcy order and had carried out a fresh examination of the case in its entirety, finding as a result that the applicant should not have been declared bankrupt in 1971. From 6 September 1993 onw ards the proceedings to rescind the bankruptcy order had unquestionably been concerned with civil rights and obligations and Article 6 was therefore applicable. The same was true both of the proceedings brought by the applicant to obtain enforcement of the judgment of 6 September 1993 and of his application for restitution of his assets. Article 6 was consequently applicable to the proceedings in issue.

However, on account of such factors as the case’s complexity and the applicant’s conduct, the proceedings had not exceeded a reasonable time.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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