CEDH · CASELAW;REPORTS;ENG — 8 septembre 1999

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letter-spacing:-0.1pt } .s5BA4079A { width:22.66pt; display:inline-block } .sA047E36C { width:24.66pt; display:inline-block } .s4D28B2E2 { width:24pt; display:inline-block } .s96822DDB { margin:0pt 11.85pt 0pt 36pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s21B97EC1 { width:25.99pt; display:inline-block } .sCC843BA8 { width:25.33pt; display:inline-block } .sCDAF610C { width:207.07pt; display:inline-block } .sB11B45BD { width:19.32pt; display:inline-block } .sC208EB85 { width:259.73pt; display:inline-block } .sD8C8644 { width:206.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }                         EUROPEAN COMMISSION OF HUMAN RIGHTS                   Application No. 21156/93     G.J.     against     Luxembourg                   REPORT OF THE COMMISSION   (adopted on 8 September 1999)         TABLE OF CONTENTS     Page     I.   INTRODUCTION   (paras. 1-7) ......................................................... 1     II.   ESTABLISHMENT OF THE FACTS   (paras. 8-21) ........................................................ 3     III.   OPINION OF THE COMMISSION   (paras. 22-36) ....................................................... 5     A.   Complaint declared admissible     (para. 22) ...................................................... 5     B.   Point at issue     (para. 23) ...................................................... 5     C.   As regards Article 6 § 1 of the Convention     (paras. 24-35) .................................................. 5       CONCLUSION     (para. 36) ...................................................... 7       APPENDIX:   DECISION OF THE COMMISSION AS TO THE   ADMISSIBILITY OF THE APPLICATION ..................... 8           I.   INTRODUCTION                 The present Report concerns Application No. 21156/93 introduced on 8   September   1992 against Luxembourg and registered on 14 January 1993.                 The applicant is a Danish citizen, born in 1933 and resident in Denmark. He is represented before the Commission by Mr Tyge Trier, a lawyer practising in Copenhagen.                 The respondent Government were represented first by Maître Georges Ravarani, subsequently by Maître Albert Wildgen and then by Maître Lynn Spielmann, as Agent.                 The application was communicated to the Government on 22 February 1995.   Following an exchange of written observations, the complaint relating to the length of proceedings (Article   6   § 1 of the Convention) was declared admissible on 22 October 1996. The remainder of the application was declared inadmissible. The decision on admissibility is appended to this Report.   The parties have submitted observations on the merits of the case, the Government on 28   January 1997 and the applicant on 23 May 1997. After the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in Plenary.               Having noted that there is no basis upon which a friendly settlement within the meaning of former Article 28 § 1 (b) of the Convention [1] can be secured, the Commission, after deliberating, adopted this Report on 8 September 1999 in accordance with former Article 31 of the Convention, the following members being present:       MM   S. TRECHSEL, President       E. BUSUTTIL       A.S. GÖZÜBÜYÜK       H. DANELIUS     Mrs   G.H. THUNE     MM   F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM   L. LOUCAIDES       M.P. PELLONPÄÄ       B. MARXER       M.A. NOWICKI     Sir   Nicolas BRATZA     MM   I. BÉKÉS       D. ŠVÁBY       G. RESS       A. PERENIČ       K. HERNDL       E. BIELIŪNAS       E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV                 In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Luxembourg.                 The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.           II.   ESTABLISHMENT OF THE FACTS                 In his application, in which he relies on Article 6 § 1 of the Convention, the applicant complains that the proceedings concerning the liquidation of the limited liability company, in which he owned 90% of the shares, were not terminated within a reasonable time.                 In 1967 the applicant moved to Luxembourg. In 1975 he founded a limited liability company for the purpose of trading in fur and leather products. The applicant held 90% of the company's shares and his wife the remaining 10%.             The firm went through a period of considerable expansion but soon experienced certain problems in respect of the tax assessments made by the Internal Revenue Service, in particular concerning the period from 1978 to 1980. Eventually the applicant decided, in 1986, to liquidate the company and it furthermore appears that it was the intention that a new limited liability company should be established as of 15 May 1987 and managed by the applicant's two sons.             The applicant left Luxembourg in April 1987 and eventually returned to Denmark. The intended voluntary liquidation of his company, however, ended on 14 May 1987 when the Commercial Court of first instance (le tribunal d'arrondissement de et à Luxembourg siégeant en matière commerciale ) declared the company bankrupt upon request of certain creditors and appointed an official receiver to sort out the estate and settle the accounts. It does not appear that the applicant appealed against this decision but by letters of 18 and 22   May 1987 he submitted certain complaints to the official receiver and the Danish Embassy in Luxembourg, respectively. It furthermore appears that the applicant engaged a lawyer in Luxembourg to take care of his interests in connection with the realisation of the company's assets.             On 20 May 1987 the official receiver submitted a request to the Commercial Court for authorisation to sell the company’s assets.   On 26 May 1987 the court authorised the receiver to sell the insolvent company’s assets in order to satisfy the interest of the creditors to the extent possible.             By 2 October 1987 44 creditors had submitted claims in the liquidation proceedings and the official receiver and the judge in charge of supervising the liquidation proceedings ( le juge-commissaire ) had accepted 32 claims whereas they contested the remaining 12 claims.   By 1   April 1988 five further claims had been submitted of which four were accepted and one contested.             In the meantime, in August 1987, the official receiver had been informed that court proceedings were pending in Germany regarding, inter alia , a bank guarantee involving the insolvent company.   These proceedings came to an end on 10 May 1990 following which a certain amount of money was transferred to the estate in bankruptcy.             The official receiver subsequently continued the liquidation of the estate.   On 5   September 1991 he sent letters to certain creditors informing them of the prospects of success and requested a reply by 15 September 1991.             In November 1991 one of the applicant's two sons, who were still living in Luxembourg, fell ill. As the applicant wanted to see him he contacted the Commercial Court and enquired whether the proceedings concerning the liquidation of his company had come to an end and whether anything would impede his free entry into and departure from Luxembourg.     The applicant's son died on 12 November 1991.        On 21 November 1991 the juge-commissaire of the Commercial Court informed the applicant that the proceedings were still pending. Upon request the Danish Embassy in Luxembourg informed the applicant, on 11 December 1991, that the official receiver was of the opinion that the proceedings would be concluded by January 1992.             However, on 6 March 1992 the Embassy informed the applicant that the proceedings were still pending, inter alia due to the fact that the competent court was overburdened with work. The official receiver expected, however, the proceedings to come to an end before Easter   1992. Finally, on 18 May 1992 the Embassy confirmed that the case was still pending.             On 18 January 1993 the applicant was informed by the official receiver that the company's accounts would be finalised during a court meeting to be held on 22 January 1993.   It appears that the accounts showed a deficit of approximately 30 million Luxembourg francs (LUF). The applicant did not appear at the court meeting.             On 22 March 1993 the official receiver informed the Commercial Court that the liquidation of the company had come to an end and he requested the court to close the case.   On 14 May 1993 the Commercial Court declared the liquidation of the applicant’s limited liability company closed.   The applicant submits that he was informed thereof by the Luxembourg Embassy in Copenhagen.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible             The Commission has declared admissible the applicant’s complaint that his case was not heard within a reasonable time.   B.   Point at issue             The only point at issue is whether the length of proceedings complained of exceeds the “reasonable time” requirement referred to in Article 6 § 1 of the Convention.   C.   As regards Article 6 § 1of the Convention             The relevant part of Article 6 § 1 of the Convention provides as follows:   “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”     1.   Applicability of Article 6 § 1             The applicant maintains that the case concerned a dispute over a civil right which directly affected him.   The Government submit, however, that there was no dispute over the applicant’s civil rights and that the insolvency proceedings did not affect him but only the limited liability company.             The Commission recalls from its decision on admissibility that it was in all practicality impossible for the company, as a legal entity, to pursue the case whereas the applicant was entitled to claim to be a “victim” within the meaning of former Article 25 of the Convention of the measures directed against the company in which he held a majority shareholding of 90%.   Furthermore, the Commission finds that the insolvency proceedings concerned a civil right in that it involved a restriction upon   the applicant to administer his possessions.   Finally, as the official receiver was appointed by the Commercial Court, which furthermore supervised the liquidation proceedings, the Commission finds that these proceedings fall within the scope of Article 6 § 1 of the Convention.     2.   Compliance with Article 6 § 1     a)   Period to be taken into consideration             As regards the period to be taken into consideration the Commission finds that it commenced on 14 May 1987 when the applicant’s company was declared bankrupt by the Commercial Court.   The proceedings came to an end on 14 May 1993.   Accordingly, they lasted six years.     b)   Reasonableness of the length of proceedings             The reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities (see e.g. Eur. Court HR, Süßmann v. Germany judgment of 16   September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1172-1173, § 48).     Complexity of the case             The Government contend that the case was complex having regard to the claims to be settled and the amounts of money involved.   The applicant disputes this.             The Commission recalls that a total of 49 claims were submitted and that the liabilities amounted to approximately LUF 33 million of which, in the end, a total of approximately LUF 2.5 million could be distributed among the creditors.   This does not appear to the Commission to have involved issues of great complexity, in particular having regard to the fact that the official receiver and the juge-commissaire had already on 1   April   1988   established and verified the claims.   Thus, the length of the proceedings cannot be explained in terms of the complexity of the issues involved.   Accordingly, the Commission will examine the proceedings in the light of the conduct of the applicant and the authorities involved.     Conduct of the applicant             The Government maintain that the length of the proceedings should be examined in the light of the fact that the applicant did not do anything in order to accelerate the proceedings during the period 1987-91.   The applicant submits that he had authorised his son to represent him and only had to involve himself following his son’s death in November   1991.             The Commission notes that the Government have not presented evidence which show that the applicant did in any way delay the liquidation proceedings.   Following the appointment of the official receiver the case was in the hands of the authorities and in the circumstances of this case the Commission finds that the applicant’s conduct did not contribute to any delays, nor can his conduct otherwise explain the length of the proceedings.     Conduct of the authorities             The Government point out that the conclusion of the insolvency proceedings depended on the outcome of the court proceedings in Germany which did not come to an end until May 1990.   Furthermore, the nature of the case did not call for any particular urgency.   The applicant disputes this.             The Commission recalls that all claims had been submitted and verified by April 1988 and the German court proceedings had come to an end in May 1990.   Nevertheless, the proceedings were not terminated until May 1993.   The Commission considers that no convincing explanation for the period of three years following the conclusion of the German court proceedings has been advanced by the respondent Government.   In particular, the Commission stresses that an excessive work-load of the court, an explanation transmitted to the applicant on 6 March 1992 through the Danish Embassy, does not constitute such an explanation.           Overall assessment             Having regard to the particular circumstances of the present case and the overall length of the proceedings lasting six years, the Commission concludes that they exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention.     CONCLUSION             The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 § 1 of the Convention.               M.-T. SCHOEPFER   S. TRECHSEL     Secretary   President   to the Commission   of the Commission [1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1   November 1998.