CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 février 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 15 February 2017   FOURTH SECTION Application no. 42505/12 Józef ORŁOWSKI against Poland lodged on 9 July 2012 STATEMENT OF FACTS The applicant, Mr Józef Orłowski, is a Polish national, who was born in 1955 and lives in Dębowa Góra. He is represented before the Court by Mr   M. Pietrzak, a lawyer practising in Warsaw. The facts of the case, as submitted by the applicant, may be summarised as follows. On 17 December 2007 the Łódź District Court ( Sąd Rejonowy ) declared the applicant’s transport production and trade company “TEKSPOD” insolvent and ordered the liquidation of the applicant’s assets. The domestic court assessed the value of the applicant’s assets at 20,000,000   Polish złotys (PLN) (approximately 5,000,000 euros (EUR)) and his debt, at PLN   6,000,000 (approximately EUR 1,500,000). The applicant lodged an interlocutory appeal, asking for a possibility of settling the debt with creditors, instead of the decision on the liquidation of all his assets which also comprised his orchard in Halinów and other estates and assets related to his parallel agricultural activity. On 26 March 2008 the Łódź Regional Court ( Sąd Okręgowy ) dismissed the applicant’s interlocutory appeal. It appears that on 15 April 2008 an expert (J.Z.) issued a report, estimating the value of the applicant’s assets. One of those assets was the estate with an orchard in Halinów which was assessed at PLN   10,445,500 (approximately EUR 2,611,375). It also appears that on 10 June 2010 another expert (J.M.) estimated that the estate in question was worth PLN   18,646,450 (approximately EUR   4,661,612) A number of attempts were made to sell the applicant’s estates by means of public auctions and other sales at successively lower prices. Ultimately, on 2 April 2012 the insolvency trustee ( syndyk masy upadłościowej ) asked the insolvency judge ( sędzia-komisarz ) to authorise the sale of the estate in Halinów at the price of PLN   1,700,000 (approximately EUR 425,000) and of other related assets. That value of the estate in question had been estimated by an expert (J.Z.) in view of the neglected state of the orchard and the financial crisis, resulting in a 30% drop of market prices. That estimation had not been communicated to the applicant. On 10 April 2012 the insolvency judge, sitting in camera , authorised the sale as sought by the trustee. On 28 May 2012 the Łódź District Court rejected the applicant’s appeal against that decision as inadmissible in law. On 16 July 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Trybunał Konstytucyjny ), asking that Section 222 of the Law of 28 February 2003 on Insolvency and Restructuring ( Prawo upadłościowe i naprawcze ) be declared unconstitutional in so far as it prohibited a debtor to challenge the decision of an insolvency judge authorising a single-source sale at a price which was significantly below the real market value of the assets. The applicant also applied for an interim measure. These proceedings are on-going. On 3 July 2012 the Łódź District Court decided to change the insolvency judge. It appears that the estate in Halinów has not yet been sold. COMPLAINTS The applicant complains under Article   1 of Protocol No.   1 to the Convention that he was not authorised to settle his debts with creditors and that his assets are sold in the course of the insolvency proceedings for 10% of their market value. The applicant also complains under Articles 6 and 13 of the Convention that the decision of 10 April 2012 on the sale of his assets was taken by the insolvency judge without his participation and could not be challenged; and that the expert’s estimation which had been issued for the purpose of that decision, could not be the subject of any protest.   QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, is the constitutional complaint an effective remedy within the meaning of this provision in respect of the applicant’s complaints under Articles 6 and 13 of the Convention and under Article 1 of Protocol No. 1 to the Convention?   2.     Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected in so far as the decision of 10 April 2012 authorising the public sale of his assets was issued in camera and in so far as the expert’s assessment of the value of the assets, which was produced for the purpose of that decision, could not be challenged by the applicant?   3.     In so far as the impugned decision of 10 April 2012 could not be subject to any appeal, did the applicant have at his disposal an effective domestic remedy for his complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?   4.     Can the applicant claim to be a victim of a violation within the meaning of Article 34 in view of the fact that his assets in Halinów have not yet been sold?   5.     In the affirmative, has there been a violation of Article 1 of Protocol   No.   1 to the Convention in view of the fact that the sale of the applicant’s assets has been ordered at 10% of their market value?