CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 janvier 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; 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 } .s56CDBE13 { margin-top:0pt; margin-bottom:0pt; text-indent:14pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } FIFTH SECTION Application no. 58874/11 Roman MINARIK against the Czech Republic   STATEMENT OF FACTS THE FACTS The applicant, Mr Roman Minarik, is a German national who was born in 1965 and lives in Willstätt. He is represented before the Court by Mr   P.   Zima, a lawyer practising in Prague. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was a minority shareholder of IVAX CR, a.s., a joint stock company incorporated under Czech law. On 25 June 2002 the general meeting of that company adopted, by votes of the main shareholder, a resolution on the winding up of the company and division of its assets between two new companies: IVAX Pharmaceuticals, s.r.o and První Opavská, a.s. The former company included all the business of IVAX CR, a.s. and was owned exclusively by the main shareholder of the wound-up company. The latter company included only financial assets and was owned by minority shareholders of the wound-up company, including the applicant. 1.     Proceedings on the deletion of the company from the Companies Register On 5 September 2002 the Ostrava Regional Court ( krajský soud ) approved the registration of the winding up of the company and its deletion from the Companies Register with effect from 31 December 2002. The applicant did not have standing to participate in the proceedings. He, nevertheless, lodged an appeal. On 26 November 2002 the Olomouc High Court ( vrchní soud ) dismissed the applicant’s appeal. It ruled that since the applicant did not have standing to take part in the impugned proceedings, he was not entitled to appeal their outcome. On 1 March 2006 the Supreme Court ( Nejvyšší soud ) dismissed the applicant’s appeal on points of law. On 31 August 2006 the Constitutional Court ( Ústavní soud ) dismissed the applicant’s constitutional appeal holding that participation of shareholders in Company Register proceedings would cause considerable delays, which would compromise the requirement to record events and facts into the Register as soon as possible in order to protect the rights of third persons relying on the correctness of information in it. It added that the right of access to court of the shareholders was sufficiently safeguarded in other proceedings. It also noted that if a court in charge of the Company Register were to record a fact in the Company Register which was based on a resolution of a general meeting, and if the resolution was subsequently found unlawful in proceedings under Article 131 of the Commercial Code, that court would make necessary amendments to the Register even proprio motu . 2.     Proceedings to set aside the resolution of the general meeting On 25 June 2002 the applicant lodged with the Regional Court an action to have the resolution on the winding up of the company set aside, asserting that it had been adopted contrary to the applicable law. On 24 November 2006 the Regional Court terminated the proceedings noting that company IVAX CR, a.s. had been deleted from the Companies Register on 31 December 2002. It referred to Article 220v in conjunction with 220h § 4 of the Commercial Code that prevented it from continuing the proceedings after the company had been deleted from the Companies Register. On 24 April 2007 the High Court dismissed the applicant’s appeal agreeing with the conclusions of the Regional Court. On 24 June 2009 the Supreme Court dismissed the applicant’s appeal on points of law agreeing with the lower courts. On 3 March 2011 the Constitutional Court dismissed the applicant’s constitutional appeal, in which he claimed an impairment of his right to a fair trial and the right to property. It interpreted the relevant provisions of the domestic law in a way, that in its view, were compatible with the Convention, taking into account especially the Court’s judgment in Kohlhofer and Minarik v. the Czech Republic , nos. 32921/03, 28464/04 and   5344/05, 15 October 2009. It held that the applicant could have instituted proceedings under Article 131 § 4 of the Commercial Code claiming just satisfaction caused by an unlawful decision of a general meeting. In those proceedings the courts, as a necessary preliminary question, would have to decide on the legality of the decision, which was the issue that the applicant had been seeking access to court for. Consequently, the applicant’s right of access to court was sufficiently safeguarded in other proceedings. 3.     Compensation proceedings The applicant instituted proceedings claiming compensation under Article 220k of the Commercial Code for inadequate exchange ratio of shares of the wound-up company for shares of the new company. The applicant did not inform the Court about the outcome of these proceedings. B.     Relevant domestic law and practice The relevant domestic law and practice are set out in the Court’s judgment Kohlhofer and Minarik v. the Czech Republic , nos. 32921/03, 28464/04 and 5344/06, §§ 40-70, 15   October 2009. COMPLAINT The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the courts refused to consider merits of his action challenging the resolution on the winding up of the company and thus the interference with his property rights has not been reviewed by any court. QUESTION TO THE PARTIES Did the applicant have an effective access to court concerning his action against the resolution of the company’s general meeting to dissolve the company and to divide its assets between two new companies as required by Article 6 § 1 of the Convention? In particular, in view of the decision of the Constitutional Court in the present case, do the proceedings for just satisfaction under Article 131 § 4 of the Commercial Code satisfy the right of the applicant of access to court?