yassine-thlija/try-echr huggingface dataset:
JudgeP (Guido Raimondi): Please be seated. I declare open the public hearing on the merits in the case of Lekic versus Slovenia. The application was lodged with the court on 4 August 2007 on the Article 34 of the convention by a Slovenian national, Mr. Ljubomir Lekic. The application was allocated to the fourth section of the court pursuant to Rule 52, paragraph 1 of the rules of the court. On 14 February 2017, a chamber constituted within that section delivered a judgment in the case. On 12 May 2017, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the convention. And the panel of the Grand Chamber accepted the request on 18 September 2017. On 15 December 2017, the president of the Grand Chamber granted the civil initiatives against forcefully erased companies and the Malta Institute of Management leave under Rule 44, paragraph 3 of the rules of the court to submit written comments at third parties. The government are represented by their agents, Mrs. Bojana Jovin Hrastnik and Mrs. Nataša Pintar  Gosenca. The applicant is represented by Mr. Andrea Saccucci, Mrs. Giulia  Borgna and Mr. Matteo Zamboni, counsel, assisted by Mr. Davor Lekić, advisor. The applicant is also present. I welcome the representatives in the name of the court. I would also like to welcome a group of visiting judges and prosecutors from the European Judicial Training Network and a group of visiting judges from the East African Court of Justice and ECOWAS Community Court of Justice. I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Albanian has been authorized for the benefit of a delegation from Albania. That interpreting is not arranged by the court, and no transcription of the oral translation will be included in the official record of the proceedings. Having consulted the agents of the government and the representatives of the applicant, I have determined the order of addresses as follows. Mr. Saccucci, Mrs.  Borgna, and Mr. Zamboni for the applicant will speak first, and then Mrs. Jovin Hrastnik for the government. I call Mr. Saccucci, please.
Applicant (AP1): Oh yes, thank you Mr. President, I get to my conclusion. The conclusion is hard indeed to avoid. The state has failed to strike a fair balance between the competing interests of the Railway of Slovenia and Mr. Leckage. The Railway of Slovenia, a big, powerful company, was put in the position to collect its entire claim in both nominal value and interest. Mr. Leckage, a minority shareholder in a limited liability company, has been forced to surrender his personal property to cover the company's debt. We therefore conclude that such an unfair arrangement cannot stand the Grand Chamber's scrutiny. Thank you.
Judge (Angelika Nußberger): Thank you very much. I would have one question to the applicants and two questions to the government. The question to the applicants, if I see correctly the timeline, on 19th of July 1997 there was an application for a bankruptcy procedure but it failed because the money was not paid. Two years later on 1st July 1999 the Fokker came into force and after that on 22nd of November 2000 there was a confirmation in court that the claim, that there was a final judgment concerning the claim by the railway company and only one year later there was a strike off. So at the moment when the judgment of the court concerning this claim from the railway company was handed down, what was the expectation of the applicant, what would happen to this final judgment? Because I understand the hope or the expectation that there would be ex-offizio bankruptcy procedures was not possible anymore because Fokker had entered into force at that time. So what was the expectation, what would happen with this final judgment? And now concerning the government, my first question is, you have argued that it was impossible to serve the decision about the striking off to the individual company members. But if it's impossible, the whole system is built on the idea that later on enforcement procedures would be directed against the individual members of the company. So if it's impossible to serve already the striking off, how do you then expect it to function within the enforcement procedure? And my second question to the government is, I understand that you treat in the same way minority shareholders and majority shareholders. So if somebody has 11% as the applicant or has 100%, there would always be this personal liability. So do I understand it correctly that if a company has just one member who has 100%, a creditor would get one debtor? And if the company has, let's say, 10 minority members, then the creditor would immediately get 10 debtors. So is that the system? Have I understood it correctly? Thank you.
Judge (Robert Spano): Thank you very much, Mr. President. I want to begin with a question to the applicant, and it's prompted by the pleadings by the government here today, where the agent for the government refers to the pleading made at paragraph 100 of your observations, where the applicant says he does not contend that a shareholder's personal liability for the outstanding debts of the company is per se incompatible with the convention. Now, that prompts the question on how would the applicant invite the court to draw the line? What are the parameters for convention compliant application of FOCA and non-convention compliant application of the FOCA? And in particular, is it the applicant's view that member states are precluded for imposing personal liability on shareholders in limited liability companies outside the context of abusive conduct? Could you clarify where you think the line under the convention should be drawn? My second question, if I could just get a clarification, and it goes somewhat to the question just posed by Vice President Nußberger, that is the one year vacatio legis on the facts of this case. Now, it seems undisputed that the applicant could have within that period proceeded with triggering bankruptcy proceedings or the winding up. Could you explain your view on the argument presented by the government on that issue? One question to the government, which is a related one. The government says that paragraph 76 of your observations, and I think here is a crucial point in light of your submissions. The point here is that only persons who had rights to manage or participate in the management of the company at the time when the company was struck off without liquidation could be held liable. What do you mean by rights to manage or participate in the management of the company? Are you limiting this view to those that actually hold board member status or director status like the applicant? Because the issue of who has the rights to manage can be dealt with in different ways. Could you clarify what you mean by this term? And are you including there minority shareholders who indeed have rights, for example, to call a general meeting? But as the constitutional court in your own country states in its judgment of 9 October 2002 at paragraph 43, minority shareholders do not have an obligation to influence or have a view on day-to-day regular operations in limited liability companies. Could you clarify what you mean by rights to manage or participate in the management of a company? Thank you very much.
Judge (Georges Ravarani): Merci, M. le Président. J'ai une seule question factuelle qui se pose depuis la plaidoirie de la partie requérante, de son premier intervenant, mais la question s'adresse également au gouvernement. Si j'ai bien compris, l'avocat du requérant a dit que la responsabilité personnelle des associés a été introduite par la loi de 1999 appelée FOCA. Selon mes notes personnelles, mais là, je peux me tromper, et vous pouvez alors me corriger, moi, j'avais noté qu'en 1993, la loi sur les sociétés... Il y a une nouvelle loi sur les sociétés avec une possibilité pour les associés disposant de plus de 10 % des parts de demander la dissolution et la mise en faillite en cas d'insolvabilité avec, en cas d'omission, responsabilité personnelle. Donc est-ce que cette responsabilité personnelle a été introduite en 1999 ou est-ce qu'elle existait déjà dans la loi de 1993? Merci beaucoup. Merci.
Judge (Péter Paczolay): Thank you very much. I have two questions to the applicant and to the applicant's representatives. The first regards the factual background of the personal involvement of the applicant in the outcome of this procedure. First, why did the applicant not himself lodge an action before the competent court to be dissolved under the Companies Act of 1993? Secondly, why did the applicant not withdraw from the company, as provided again by the Companies Act of 1993? Third, why did not he profit from the adversarial procedure by appealing the court procedure? And finally, why did he not lodge a constitutional complaint against the strike of decision immediately after the decision, but only a year later? My second question to the representatives or applicant regards this reference to the two erasure, so to say two erasure procedures in the history of Slovenia. First, the erasure of the former Yugoslav citizenship, and the second, the erasure of the companies. And here, the representative or applicant referred to the Kuric versus Slovenia case. How can you explain to us the difference between the decisions of the Constitutional Court regarding the erasure of citizens and the erasure of the companies? Because basically, at the same time, the same composition of the Constitutional Court found unconstitutional the citizenship law, and also the government acknowledged its illegality. Most at the same time, the Constitutional Court upheld the FOCA law. And so I would like to have an explanation for that. My question is to the government. First, because here we have heard that the 2.5% of the population was affected by the FOCA law. Are there perhaps any statistical data on that? How many persons have been held liable? How many persons have been held liable under this veil of the lifting of the corporate fur for debts of struck-off companies when the FOCA law was in force regarding this issue? My second question to the government would return to an issue that was raised during the deliberation by the applicant's representative, and this is the retroactive application of the FOCA law. If you could elaborate on that question, I would be very curious whether it was retroactive or not. Thank you very much.
Judge (Paul Lemmens): Thank you very much. I would like to ask two questions, one primarily to the applicant. The applicant has argued extensively about the fact that he was not informed of the hearing relating to the strike of proceedings, nor about the decision that had been taken by the court. My question is, what would have been the possibility for the applicant to argue before the court or on appeal? And that has something to do with the text of Article 25 of the FOCA. Is there any possibility for the court, or was there any possibility for the court to come to an other decision, taking into account that for 12 consecutive months, there had not been any payments by the company? That's the first question. The second one relates somewhat to what the government said at the very end of its argument. We know what the situation is of the applicant, but there were also other shareholders who have also been held personally liable in the proceedings against the railway company. Was it possible, is it possible for the applicant to turn to the fellow shareholders or to their heirs and obtain some part from them, the part of what he had to pay to the railway company? And if so, how would then the individual responsibility of each of the shareholders be determined in the proceedings between them? Thank you.