CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 septembre 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s471F7CE { margin-top:6pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s5D0298BB { margin-top:0pt; margin-bottom:36pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }       FIFTH SECTION Application no. 27183/08 Vojin MALBAŠIĆ against Slovenia lodged on 26 May 2008 STATEMENT OF FACTS     The applicant, Mr Vojin Malbašić, is a Serbian national, who was born in 1938 and lives in Novi Beograd. He is represented before the Court by Mr   M. Perić, a lawyer practising in Beograd. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 1990, the applicant’s employment was terminated due to the closure of the Belgrade branch office of a Slovenian company S. The applicant and his former co-worker B.G. whose employment was terminated on the same grounds requested severance pay. An oral agreement was reached in this regard, but severance was not paid. In 1991 the applicant and B.G. initiated labour dispute proceedings against company S. before the Ljubljana Labour and Social Court, claiming severance pay in the amount of twenty-four monthly salaries based on the average of the last three salaries they had received from the defendant company. The Ljubljana Labour and Social Court granted their claim and company   S. appealed against that judgment. The Higher Labour and Social Court set aside the first-instance judgment and remitted the case for a new trial, as doubts appeared with regard to the legal standing of company L., company S.’s alleged legal successor, to which the labour dispute was expanded during the proceedings. On 12 September 2000 the Ljubljana Labour and Social Court rendered judgment in the proceedings against company S. as the sole defendant in the new trial. With regard to the legal standing of the defendant, the court observed that company S. still existed as it was registered as such in the court register of companies. In the court’s view, it was therefore rightly designated as the defendant party by the applicant and B.G. The court granted the claim of the applicant and B.G. to severance pay in the requested amount, and dismissed the remainder of the application. On 26 September 2000 a decision of the competent register court rendered on 21 July 2000 was published in the Official Gazette of the Republic of Slovenia, whereby company S. was struck off the court register of companies. On an unspecified date the applicant and B.G., on the one side, and company S. and its legal successor company L., on the other side, appealed against the first-instance judgment before the Higher Labour and Social Court. Company S. and its legal successor company L. also lodged a request before the Ljubljana Labour and Social Court that the proceedings be suspended, as the defendant party, a legal person, had ceased to exist and could no longer take part in the proceedings. On 20 February 2001 the Ljubljana Labour and Social Court dismissed the request for a suspension of proceedings on account of the grounds for suspension having only occurred after the first-instance judgment had been rendered. Company S. and company L. appealed against this decision. On 6 February 2003 the Higher Labour and Social Court rendered its judgment dismissing both the complaints of the applicant and B.G., as well as those made by company S. It upheld the lower court’s judgment in its entirety. The court also upheld the refusal of the request for a suspension of proceedings. It found that the notice of the strike-off was only published in the Official Gazette on 26 September 2000, after the first-instance judgment had been rendered. It therefore held that the decision on the strike-off could not have produced any legal effects in relation to the third parties while the first-instance proceedings against company S. had been pending. The appeals lodged by company L., which attempted to join the appeal proceedings on the side of the defendant, were rejected as inadmissible. The court, establishing that the impugned judgment of the Ljubljana Labour and Social Court of 12 September 2000 and the decision of that court of 20   February 2001 were rendered against company S. as the sole defendant, held that as company L. had not been designated as a defendant party, it had no right to appeal against the two judicial decisions. On 10 October 2003 the applicant lodged a request for enforcement of the final judgment of 12 September 2000 against company L.V., which on 4   October 2001 had acquired company L., the legal successor of the applicant’s initial debtor company S. On 14 November 2003 the Kočevje Local Court dismissed the applicant’s request for enforcement on the ground that it was lodged out of time. The court observed that the creditors of struck-off companies could pursue their claims against the former shareholders of the struck-off companies within a year of the publication of the notice of a company’s strike off the court register of companies. It held that the applicant failed to act within the prescribed period of time, as the enforcement request was lodged almost three years after company S. was struck off the register. The court therefore concluded that the applicant could no longer pursue the claim against company S.’s legal successor. On 15 December 2003 the applicant appealed against this decision before the Ljubljana Higher Court, claiming that the first-instance labour dispute proceedings had been suspended on 26 September 2000, the date on which the notice of strike-off had been published in the Official Gazette, as the defendant party had ceased to exist. According to the applicant, thereby the statutory conditions had been met for a suspension of proceedings and the latter had been suspended by force of the law itself until the Higher Labour and Social Court rendered its judgment on 6 February 2003. Consequently, the time limits prescribed for the performance of acts of procedure had also been suspended, as provided by the law. The applicant further maintained that he could not have applied for an enforcement of his claim before a final judgment was rendered in the labour dispute proceedings, therefore his request for enforcement could not have been lodged out of time. He asserted that he had lodged an action against company S., the main debtor, before the latter ceased to exist, and could not institute new proceedings against its successor once the company was struck off the court register of companies, as it was not possible to submit a matter already under examination to another set of judicial proceedings. The applicant complained that, not having been represented by an attorney in the labour dispute proceedings, he had been misled by the court, which had not invited company S.’s legal successor to take over the proceedings or informed the applicant of the acts of procedure he could have executed. The applicant concluded that he had acted in good faith that his claims would be repaid and requested that the impugned decision be set aside. On 22 January 2004 the Kočevje Local Court adopted a decision on the suspension of the applicant’s enforcement proceedings against company L.V. as of 15 January 2004 due to the commencement of compulsory composition proceedings against the defendant company. On 25 February 2004 the applicant lodged his claim in the compulsory composition proceedings. On 11 May 2004 the Ljubljana District Court confirmed the compulsory composition against company L.V. On 22 May 2006 the Kočevje Local Court adopted a decision on the continuation of the applicant’s enforcement proceedings against company L.V., noting that the applicant lodged a claim in the compulsory composition proceedings which, having been disputed by company L.V., could not be deemed to have been established, hence the enforcement proceedings were to continue. On 6 September 2006 company L.V. lodged an appeal against the decision on the continuation of the enforcement proceedings before the Ljubljana Higher Court. The debtor company alleged that the applicant’s request for enforcement had already been dismissed by a final decision due to the failure to observe the time limit. On 8 November 2006 the Ljubljana Higher Court adopted a decision dismissing both the applicant’s appeal against the decision whereby the applicant’s request for enforcement was dismissed and the appeal of company L.V. against the decision on the continuation of the enforcement proceedings. As regards the applicant’s appeal, the court noted that the enforcement title was issued against the debtor company S., which had been struck off the court register of companies. It further observed that as the initial debtor company thereby ceased to exist, the legal effects of the Ljubljana Labour and Social Court final judgment of 12 September 2000 could not extend to its legal successors. The court established that the applicant could have pursued his claim against the legal successor of company S. in the one-year statutory time limit, but had failed to do so, hence his request for enforcement was rightly dismissed. On 7 December 2006 a different panel of the Ljubljana Higher Court upheld the appeal of B.G., whose request for enforcement of the final judgment rendered in the labour dispute proceedings was also dismissed in the first-instance, on the same grounds as the applicant’s request. The court took the view that since company L., company S.’s legal successor, attempted to join the appeal proceedings, albeit unsuccessfully, B.G.’s claim was raised against company L. already in the labour dispute, which constituted a basis for the entitlement to request an enforcement order against the latter company. The case was remitted to the first-instance court for re-examination, and the latter consequently granted the request for enforcement. On 7 March 2007 the applicant lodged a constitutional complaint before the Constitutional Court, alleging that the Ljubljana Higher Court decided differently in two essentially equal enforcement proceedings initiated by the applicant and B.G., respectively, which resulted from the same labour dispute in which a single judgment was delivered granting identical claims to the applicant and B.G. The applicant alleged that these decisions placed him and B.G. in an unequal position before the law and constituted unequal protection of their rights. On 15 June 2008 the Constitutional Court rejected the applicant’s constitutional complaint as inadmissible, as the value of the dispute did not exceed the amount determined in the small claims disputes. B.     Relevant domestic law At the material time, the rights of creditors and obligations of shareholders of the companies which were struck off the court register of companies were regulated by Article 425 §§ 1–3 (previously Article 394 §§   1–3) of the Companies Act (Official Gazette No. 42/2006, as amended) in conjunction with Article 27 §§ 1, 4 and 5 of the Financial Operations of Companies Act (Official Gazette No. 54/1999, as amended), which determined the legal consequences of the strike-off and entailed a presumption that the shareholders had intended to have their company dissolved and had made a statement to the effect that all the company’s liabilities had been settled and they assumed unlimited liability for any eventual outstanding debts. This provision 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 of the company shall be presumed to have made a statement with the contents determined by 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.”   Article 425 §§ 1–3 (previously Article 394 §§ 1–3) of the Companies Act reads as follows:   “(1) A company may be dissolved by simplified procedure without going into liquidation if all the shareholders propose to the registration body the deletion of the company from the register without liquidation and attach with the proposal a resolution on the dissolution of the company by simplified procedure and a declaration by all the shareholders, verified by a notary, to the effect that all the company’s liabilities have been settled, that all relations with employees have been settled and that they are assuming the liability to pay any potential outstanding liabilities of the company. (2) Creditors may pursue their claims on the shareholders who submitted the declaration under the preceding paragraph within one year of the notice of the deletion of the company from the register. (3) The shareholders shall be jointly and severally liable with all their assets for liabilities under the preceding paragraph. ...” COMPLAINTS The applicant complains under Article 6 of the Convention that the labour dispute proceedings had been excessively long. He also complains that the excessive length of these proceedings precluded him from lodging a request for enforcement of his claim in the prescribed time-limit. The applicant further complains about the errors of law allegedly committed by the domestic courts and discriminatory adjudication of the domestic courts which, notwithstanding the same factual and legal background of the applicant’s case and the case of his former co-worker, reached diverging conclusions in the enforcement proceedings.       QUESTIONS 1. Was the refusal of the domestic courts to enforce the final judgment relied on by the applicant, on the ground that the enforcement had become time-barred, in breach of Article   6   §   1 of the Convention?   2.     Having regard to the fact that the applicant’s request for enforcement was solved differently from that of his co-worker by two different panels of the Ljubljana Higher Court despite the fact that their identical claims originated in a single set of labour dispute proceedings, did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty implicit in this provision complied with by the domestic courts and did the national law offer an effective mechanism able to ensure the consistency of case-law in small claims disputes (see, for example, Beian v. Romania (no. 1) , no. 30658/05, §§ 36-39, ECHR 2007 ‑ V (extracts), and Vusić v. Croatia , no. 48101/07, §   44, 1 July 2010)?