AS TO THE ADMISSIBILITY OF
Application no. 39646/98
by Aage SLOTS
The European Court of Human Rights, sitting on 4 October 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr A.B. Baka,
Mr G. Bonello,
Mr P. Lorenzen,
Mr M. Fischbach,
Mr E. Levits,
Mr A. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 6 September 1996 and registered on 4 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Aage Slots, is a Danish national, born in 1927 and living in Frederiksberg, Denmark. He is represented before the Court by Mr C. Harlang, a lawyer practising in Copenhagen.
The respondent Government are represented by their agent, Mrs Nina Holst-Christensen of the Ministry of Justice.
A. The circumstances of the case.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1982 the applicant owned a certain real estate in Copenhagen and furthermore controlled, through incorporated companies, a number of wine and tobacco businesses. One of the companies for which the applicant stood surety experienced financial difficulties and was eventually declared bankrupt. The applicant’s personal financial situation was affected thereby and on 26 February 1982 the customs authorities requested the Probate Court of the Maritime and Commercial Court of Copenhagen (Sø- og Handelsrettens skifteretsafdeling) to open bankruptcy proceedings against him. A number of court sessions were subsequently held following which the applicant was declared bankrupt by decision of 17 May 1982. Furthermore, the Court appointed, provisionally, two official receivers.
The applicant appealed against the above decision to the Supreme Court (Højesteret). However, on 15 June 1982 the Appeals Committee of the Supreme Court (Højesterets Anke- og kæremålsudvalg) upheld the decision.
On 8 July 1982 the Probate Court appointed two official receivers to sort out the applicant’s estate in bankruptcy and to settle the accounts. A total of 28 court sessions were subsequently held between July 1982 and October 1984 with a view to determine the applicant’s assets, to decide on the applicant’s objections to the sale of real property, mortgage deeds and stocks, his objections to a manager who was temporarily hired to take care of the ongoing business, his objections to one of the official receivers and to an assisting judge, to decide on the applicant’s request to have a counsel appointed, to consider the creditor claims submitted, to discuss accountant fees, and to settle other disputes related to the bankruptcy. During sessions held on 27 November and 17 December 1984 as well as on 21 January 1985 the official receivers’ draft accounts were discussed. The applicant had objections to 21 items listed in the accounts. Eventually, as no agreement could be reached, the Probate Court approved the accounts including the fees to be paid to the official receivers and the principles of distribution by decision of 20 June 1985. It appears from the transcript of the decision that a few questions were left open regarding some amounts, which the official receivers had not been able to recover. The Probate Court stated that if it should prove necessary, these questions could be dealt with later pursuant to section 149 of the Bankruptcy Act (Konkursloven).
On 6 July 1985 the applicant, represented by a lawyer, appealed to the Supreme Court against the part of the Probate Court’s decision that concerned the official receivers’ fees which the applicant claimed reduced. Written pleadings were submitted and a court session was held between July and October 1985. On 15 October 1985 the applicant’s lawyer informed the court that he withdrew from the case. Four court sessions were held between November 1985 and 20 February 1986 during which a new lawyer represented the applicant. On the latter date a final hearing was scheduled to take place on 22 September 1986. However, on 18 August 1986 the new lawyer informed the court that he had withdrawn from the case. On 19 August and 13 October 1986 the case was adjourned awaiting the applicant engaging another lawyer. In a court session on 3 November 1986 the final hearing was re-scheduled to take place on 7 December 1987 though the applicant had had not succeeded in finding a new lawyer. Pre-trial hearings were held on 5 and 12 October 1987. The scheduled final hearing on 7 December 1987 had to be adjourned due to the applicant’s hospitalisation. On 1 February 1988 the final hearing was re-scheduled to take place on 31 August 1988. However, also this hearing had to be adjourned due to the applicant’s hospitalisation and the final hearing was re-scheduled to take place on 28 October 1988. On 2 November 1988 the Supreme Court pronounced judgment upholding the Probate Court’s decision of 20 June 1985 concerning the fees to the official receivers.
Subsequently, supplementary income accrued to the estate. Accordingly, pursuant to Section 154 of the Bankruptcy Act, on 12 March 1992 the official receivers submitted an additional draft account as well as an additional statement of distribution. The Probate Court inserted a notice, which was published in the Danish Official Gazette on 11 April 1992, summoning to a final hearing on 29 April 1992 and stating:
“The additional draft account and the list of distribution can be examined in the Probate Court during a period of 14 days before the final hearing. Provided that the drafts are approved of, and not appealed against within the time limit, the bankruptcy proceedings are terminated ... and the distribution of the dividend will take place on 29 May 1992.”
By decision of 21 May 1992 the Probate Court approved the additional draft account and the additional statement of distribution. It follows inter alia of the court records:
“A notice of the completion of the bankruptcy proceedings is to be published in the Danish Official Gazette.
The bankruptcy proceedings are terminated.”
Thus, the Probate Court inserted a notice, which was published in the Danish Official Gazette on 27 May 1992 stating:
“By decision of 21 May 1992 the Probate Court approved the additional draft account and the additional statement of distribution in the bankruptcy proceedings concerning [the applicant].”
On 17 June 1992, the applicant appealed against this decision to the High Court of Eastern Denmark (Østre Landsret) opposing to the principles of distribution.
Between July and September 1992 a dispute concerning the fee to be paid to the High Court for the applicant’s appeal was determined. Subsequently, written pleadings on the merits were submitted. In a court session held on 11 February 1993 the applicant’s request for an expert opinion was refused. It appears that the applicant thereafter changed lawyer three times. At a pre-trial hearing on 13 January 1994 the High Court dismissed the applicant’s appeal since neither the applicant nor a representative appeared. However, at a court session held on 18 February 1994 it was established that the applicant by mistake had not been informed by his lawyer of the court session on 13 January 1994. Accordingly, the High Court restored the case. On 8 September 1994 the proceedings were transferred to preparation in writing and adjourned until 3 November 1994 pending the applicant’s written pleadings. On 15 December 1994 the final pleadings were scheduled to take place on 7 September 1995. By judgment pronounced on 14 September 1995 the High Court dismissed the applicant’s appeal for the following reasons:
“The principles of distribution became final by the Probate Court’s decision of 20 June 1985. The Probate Court’s decision now appealed against [by the applicant] only approves an additional statement of distribution to the creditors according to the aforesaid principles.
Accordingly, [the applicant] is now precluded from appealing against the principles of distribution.”
By letters of 16 September 1996 and 26 November 1997 the applicant requested the official receivers to inform him when the final closure of the bankruptcy estate was to take place. It appears that he did not receive a reply thereon.
B. Relevant domestic law
The relevant provisions of Chapter 18 of the Bankruptcy Act concerning the completion of bankruptcy proceedings and the distribution of dividend read as follows:
“On the basis of a recommendation from the official receiver, the Probate Court may decide that a final account, and distribution, if any, of an amount not yet collected, ... or any other specifically limited parts of the estate, shall be deferred to the period after the completion of the bankruptcy proceedings.”
“Dividend will be distributed to the creditors when the Probate Court has approved the draft accounts and the statement of distribution, and when the time limit for appeal has expired without an appeal having been initiated.”
“Amounts, which have been paid in or are released to the advantage of the estate after its completion, will be distributed to the creditors according to the principles of distribution previously approved of by the Probate Court. An additional account must be submitted by the official receiver to the Probate Court...”
“The Probate Court inserts a notice of the completion of the bankruptcy proceedings to be published in the Danish Official Gazette (Statstidende)...”
The applicant complains, under Article 6 § 1 of the Convention, that the proceedings concerning the liquidation of the estate following his bankruptcy were not terminated within a reasonable time within the meaning of Article 6 § 1 of the Convention.
The applicant complains that the length of the bankruptcy proceedings exceeds the reasonable time requirement set out in Article 6 § 1 of the Convention, which, in as far as relevant, reads as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submit that the application was not introduced within a period of six months from the date on which the final decision was taken cf. Article 35 § 1 of the Convention and thus, must be declared inadmissible.
In the Government’s opinion the application relates to two independent and separate sets of proceedings, the latest being a reopening of the bankruptcy proceedings.
According to the Government the first period started on 26 February 1982 when the Probate Court received the petition to commence bankruptcy proceedings, and ended on 2 November 1988 when the Supreme Court upheld the Probate Court’s decision of 20 June 1985, and the second period started on 12 March 1992 when the Probate Court received the supplementary draft accounts and distribution list from the official receivers, and ended on 14 September 1995 when the High Court dismissed the applicant’s appeal.
Thus, in the Government’s opinion the applicant’s civil rights and obligations were no longer in dispute after the 14 September 1995. In support of this finding the Government refer inter alia to Section 155 of the Bankruptcy Act from which it follows that the Probate Court inserts a notice of the completion of the bankruptcy proceedings to be published in the Danish Official Gazette. According to the general conceptions, the Government maintain, the completion is final when the ordinary time-limit for appeal has lapsed in case of no appeal, and otherwise when the appeal instance makes its decision unless such a decision results in the reopening of the bankruptcy proceedings.
The applicant contests that the application relates to two independent and separate proceedings or that the continuation of the bankruptcy proceedings on 12 March 1992 can be considered a reopening of the case, since during the entire proceedings they concerned exactly the same person, company and issue.
Moreover, the applicant disagrees that the bankruptcy proceedings came to en end on 14 September 1995. In this respect he stresses that according to the Court’s case-law the relevant period extends to subsequent enforcement proceedings.
In addition, the applicant alleges that because of the bankruptcy proceedings he was unable to make any business for over 15 years.
Finally the applicant submits that in spite of his requests of 16 September 1996 and 26 November 1997 the official receivers did not inform him of the final closure of the bankruptcy estate and they did not sent him a final list of distribution.
The Court recalls that Article 35 § 1 of the Convention provides that the Court may only deal with the matter within a period of six month from the date on which the final domestic decision was taken.
Thus, leaving aside the question whether the applicant’s complaint relates to two independent and separate proceedings, the Court must ascertain the pertinent question when the bankruptcy proceedings came to an end.
The Court recalls that Article 6 § 1 of the Convention requires that all stages of legal proceedings for the “determination of ... civil rights and obligation” be resolved within a reasonable time.
Moreover, the Court has previously held that the determination of a civil right is constituted at the moment when the right asserted actually becomes effective (see e.g. the Di Pede v. Italy judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1384, § 22, Estima Jorge v. Portugal judgment of 21 April 1998, Reports 1998-II, p. 772, § 37 and Dewicka v. Poland, no. 38670/97, 4 April 2000, § 42).
The close of the period to be taken into consideration accordingly extends right up to the moment where the dispute is effectively disposed of.
In the present case the High Court dismissed on 14 September 1995 the applicant’s appeal against the Probate Court’s decision of 21 May 1992 on the grounds that the substance matter appealed against concerned the principles of distribution, which had already been adopted by the Probate Court on 20 June 1985 which substance matter the applicant did not appeal against in his appeal on 6 July 1985 since it was limited to the part of the Probate Court’s decision that concerned the official receiver’s fees.
Thus, it appears that after 14 September 1995 there were no more disputes to be determined, no further accounts to be approved, no further income to the estate to be distributed to the creditors, and no further deferred questions or parts of the estate.
As to the applicant’s submission that the bankruptcy proceedings extended beyond that date due to subsequent enforcement proceedings the Court notes that in support of this submission the applicant seems to rely on the fact that after 14 September 1995 he did not receive a notification from the official receivers that the bankruptcy estate was finally closed and that he did not receive a final list of distribution.
However, as for the list of distribution the Court notes that the applicant undoubtedly was familiar with the accounts and lists of distribution approved by the Probate Court on 20 June 1985 and the additional accounts and lists of distribution approved by the Probate Court on 21 May 1992. Furthermore, the Bankruptcy Act contains no provisions, which require that the official receivers send a final list of distribution to the person being declared bankrupt after the Probate Court or an appeal instance has approved it.
As to the applicant’s right to be informed of the final closure of the bankruptcy estate, the Court notes that Section 155 in the Bankruptcy Act requires that the Probate Court inserts a notice of the completion of the bankruptcy proceedings to be published in the Danish Official Gazette. In the present case the Probate Court inserted a notice, which was published in the Danish Official Gazette on 11 April 1992, stating that the bankruptcy proceedings would be closed, provided that the drafts were approved and would not be appealed against within the time limit. The Probate Court decided on 21 May 1992 to approve the additional draft account and the additional statement of distribution, and subsequently stated in its court records that the bankruptcy proceedings were terminated. Finally, a notice was published in the Danish Official Gazette on 27 May 1992 informing that the Probate Court decided to approve the additional draft account and the additional statement of distribution in the bankruptcy proceedings concerning the applicant on 21 May 1992.
The Court finds, in these circumstances, that the notifications and the court records implied that the bankruptcy proceedings could be considered closed when the ordinary time-limit for appeal lapsed in case of no appeal, and otherwise when the appeal instance pronounced its decision, unless such a decision would result in the reopening of the bankruptcy proceedings.
It is not in dispute that the applicant was informed of the High Court’s decision of 14 September 1995 to dismiss his appeal against the Probate Court’s decision of 21 May 1992.
The Bankruptcy Act contains no provisions, which requires that the person being declared bankrupt must receive a special notification from the official receivers informing him or her of the final closure of the bankruptcy proceedings.
Thus, in the present case the Court considers that the bankruptcy proceedings came to an end on 14 September 1995.
Consequently, as the application was submitted to the Court on 6 September 1996 it follows that it has been submitted out of time and must be rejected, in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible
Erik Fribergh Christos Rozakis
SLOTS v. DENMARK DECISION
SLOTS v. DENMARK DECISION