Bankruptcy Law

Under Article 6(1) ECHR, everyone is entitled to have his case heard within a reasonable time, the reasonableness of the length of the procedure having to be assessed in the light of the circumstances of the case, in particular the complexity of the case, the attitude of the competent authorities and that of the debtor . These treaty provisions, which are naturally applicable to the insolvency pro …

Reasonable time for the procedure

Under Article 6(1) ECHR, everyone is entitled to have his case heard within a reasonable time, the reasonableness of the length of the procedure having to be assessed in the light of the circumstances of the case, in particular the complexity of the case, the attitude of the competent authorities and that of the debtor . These treaty provisions, which are naturally applicable to the insolvency procedures, require the State to guarantee the debtor the right to obtain a final decision in his court-supervised liquidation procedure within a reasonable time . A court-supervised liquidation procedure that has been in progress for almost fifteen years must be terminated, as its duration and property-related effects violate the provisions of Article 6(1) ECHR . The State also failed in its obligation to guarantee the debtor the right to obtain a final decision on his receivership procedure within a reasonable timeframe when the procedure lasted almost sixteen years and nine months, with a period of inactivity of ten years, even though the case did not present any particular difficulties and the debtor's conduct did not contribute to lengthening the duration of the procedure . On the other hand, the debtor is not entitled to request that the procedure be terminated for breach of these provisions, since the extension of the duration of the procedure is partly due to his own actions, in particular because of the remedies available to him .

Where there is a realizable asset capable of satisfying creditors in whole or in part, the debtor's right to be judged within a reasonable time is not sufficient to justify the termination of the court-supervised liquidation, especially where attempts to estimate the value by an expert have been complicated by the latter's resistance . In the case of property to be realized, the violation of the debtor's right to be judged within a reasonable time, and the resulting violation of his right to administer and dispose of his property, is not sanctioned by the closure of the receivership procedure, but opens the door to the action for damages provided for in Article L. 141-1 of the Judicial Organization Code (Code de l'organisation judiciaire), which he can exercise under his own rights . In the context of such an action, the debtor's passivity, having taken no steps towards the closure of the procedure, justifies a reduction by half of the compensation for his harm, even in the event of a serious malfunction of the judicial service, characterized by a period of inaction of more than ten years between the last realization of assets and a new request for authorization to sell a property by private treaty . On the other hand, if the court-supervised liquidation procedure lasts more than twenty years, combined with the debtor's inability to bring an action for damages, this concerns his rights under Articles 6(1) and 13 ECHR, and entitles him to compensation . For the action to succeed, however, it is necessary to demonstrate the existence of harm resulting from the liquidator's inaction, even if prolonged .

CA Besançon, 18 November 2009, LawLex202300004381JBJ (LJ).

CEDH, 17 January 2002, LawLex202100002748JBJ (LJ).

CA Caen, 4 November 2010, LawLex202300006864JBJ (LJ).

CA Nancy, 16 December 2020, LawLex202300004483JBJ (LJ).

Cass. com., 14 November 2019, LawLex202300004309JBJ (LJ); CA Bourges, 22 August 2013, LawLex202300004481JBJ (LJ).

Cass. com. 24 March 2015, LawLex202300004380JBJ (LJ); 16 December 2014, LawLex202100001600JBJ (LJ), holding that a total duration of thirty-three years of the procedure does not justify its closure, but, where appropriate, the award of damages to the debtor, where there are realizable real estate assets.

CEDH, 5 June 2014, LawLex202300007523JBJ (LJ).

Cass. com. 30 January 2007, LawLex202300006876JBJ (LJ), holding that the fact of having allowed seven years to elapse without requesting closure does not engage the liquidator's liability in the absence of proof of any resulting harm to the debtor.

Bankruptcy Law

942. Reasonable time for the procedure

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942. Reasonable time for the procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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