ONTRIBUTION TO THE DEBATE ON THE PRINCIPLE OF EQUALITY OF ARMS
DOI:
https://doi.org/10.30925/38.1.11Keywords:
bankruptcy; the institution of proceedings; creditor; the likelihood of a claim; proofAbstract
The principle of equality of arms requires that each party to the proceedings
should have equal opportunity to present facts and support them with their evidence
without of putting any party in a substantial disadvantage. (Case LB INTERFINANZ
AG against Croatian, judgment, 27.03.2008 ., application no. 29549/04.). In terms
of the procedural balance between the parties, this principle constitutes one of the
essential elements of the right to a fair trial. However, the question of equality of arms
is again raised in Bankruptcy Act (Official Gazette, 71/15. hereinafter: BA). BA has
kept solution in which the creditor is able to initiate bankruptcy proceedings if he
makes the existence of its claims likely possible and the existence of the reasons for
bankruptcy. However, the legislator has retained the disputed solution in which the
probability of the existence of the creditor claim can be proven by non-final judicial
or non-final administrative decisions.
As there are different solutions in terms of the above mentioned assumptions, the
authors will focus on general statements based on comparative experiences, without
detail consideration of the numerous and specific comparative solutions. This paper
discusses the practical, but also theoretical implications of positive legal solutions
specifically analysing the law of the European Court of Human Rights (ECtHR) in
proceedings according to Art. 6 (right to a fair trial) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR), because
we assume that these information play key role in the understanding of the issue
concerned. In addition, authors are trying to get the answer on the question will overall
unsatisfied indicators of bankruptcy proceedings, which are the result of structural
problems, need “stringent” procedural measures to resolve that situation. The subject
of the paper is also a nomotehnical dimension of this issue, because the same solution
was in the old Bankruptcy Act (Official Gazette, 44/96, 29/99, 129/00, 123/03, 82/06,
116/10, 25/12, and 45/13.) which suspended the Constitutional Court.
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