Zbornik, Vol. 34 No. 1, 2013.
Pregledni rad
THE ROLE OF PRE-BANKRUPTCY COUNCIL IN THE PRE-BANKRUPTCY SETTLEMENT PROCEDURE FROM THE PERSPECTIVE OF ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
Sanja Grbić
; Pravni fakultet Sveučilišta u Rijeci
Dejan Bodul
; Pravni fakultet Sveučilišta u Rijeci
Ante Vuković
; Stečajni upravitelj, Split
Sažetak
The Croatian Financial Agency (hereinafter: FINA) constitutes the key element in a number of important state projects. For instance, it participated in 2002 in the pension reform; 2002 in the payment system reform; 2003 in the sale of assets of the debtor as a whole; 2005 within the HITRO.HR reform; 2006 in the reform of Records of the Courts and Notarial insurance; 2007 in support of e-documents; 2010 within the system of Registry employees in the public sector; 2011 in the reform of the procedure for enforcement of the monetary funds and 2012 in the reform of the procedure for pre-bankruptcy settlement, to name but a few. The authors focus on questions concerning FINA’s role within the pre-bankruptcy settlement, especially having in mind that the bodies in the proceeding of pre-bankruptcy settlements are the Pre-Bankruptcy Council and the trustee of the pre-bankruptcy settlement. The proceeding is conducted in FINA’s regional centre where the Pre-Bankruptcy Council is appointed. The latter consists of two members and the President of the Council who deliver the decision in the proceeding and are appointed by the Minister of Finance. The role of the Pre-Bankruptcy Council in the pre-bankruptcy settlement procedure is a formal one, since it does not decide whether the settlement will be concluded at the end, nor does it decide on mutual rights and obligations of the parties to the proceeding. The Legislative Council's role is to run the proceeding, assure that proceeding is within the legal framework and to guide the parties to come to an agreement in order to regulate the mutual rights and obligations. The Pre-Bankruptcy Council’s role is more a role of an arbitrator or conciliator between the parties. Nevertheless, in view of the fact that the Republic of Croatia, as a party to the pre-bankruptcy settlement accounts for the largest creditor, the authors bring the objectivity and impartiality of the persons who are members of the Pre-Bankruptcy Council into question. Moreover, members of the Council are appointed by one of the parties to the proceeding, that is, often the creditor with highest rights on debtor’s property. These assumptions are even more important considering the role of the Pre-Bankruptcy Council as party in the pre-bankruptcy settlement through the lens of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
This paper consists of two parts. The first part analyzes the issue of legal status of Pre-Bankruptcy Council in the pre-bankruptcy settlement. The second part is based on an analysis of the terms "independent and impartial tribunal" as set out in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and explains the case law of the European Court of Human Rights, bearing in mind that those terms have autonomous meaning. With this in mind, the main goal is to establish whether the Pre-Bankruptcy Council is a tribunal under the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and if so, can it be called independent and impartial.
Ključne riječi
Pre-Bankruptcy Council; pre-bankruptcy settlement; independent and impartial tribunal; Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
Hrčak ID:
116298
URI
Datum izdavanja:
12.4.2013.
Posjeta: 2.322 *