CYIL 2012

ĽUBOMÍR MAJERČÍK ȃ ANNA MATUŠINOVÁ ȃ HUBERT SMEKAL CYIL 3 ȍ2012Ȏ 5. The squeeze out and lengthy proceedings – issues unresolved for years The case of Minarik v the Czech Republic 18 represents the second set of repetitive cases. The general meeting of the company in which Ms Minarik was a minority shareholder adopted a resolution on the winding up of the company and the transfer of all its assets to the main shareholder. The applicant requested the Companies Register not to allow the entry in the register of the winding up of the company and the transfer of all its assets to the main shareholder until the legality of the resolution had been decided. However her requests failed before all the instances. The Court held that there had been a violation of Article 6 because she could not challenge the winding up resolution and the forced transfer of all her shares. On the other hand, the Court did not decide on the applicant’s complaint that her shares were expropriated, finding it premature. In October 2011 a Committee of three judges found a violation of Article 6 in three additional similar cases. The excessive length of proceedings, another recurring theme, was examined in the case of Golha v the Czech Republic. 19 Proceedings for the division of matrimonial property were initiated in 1988 and had not been completely finished until the Court’s judgment. The applicant had been pursuing compensatory proceedings seeking non-pecuniary damage arising from the length of the proceedings on the merits. However, within more than three and a half years he did not obtain sufficient redress. Compared to the previous years this judgment is very rare as the remedy for lengthy proceedings is usually effective, 20 helping to significantly reduce the backlog of Czech applications before the Court. 6. The Czech contribution to the ECtHR’s case-law? The case of Andrle v the Czech Republic 21 raised an unusual issue of the alleged discrimination of men. Mr. Andrle complained about the pension scheme whereby women and men who care for children are eligible for a pension at different ages. Notably, he asserted that he had been denied a pension at an age when a woman in his position would have been able to receive it. The rule was clearly based on the woman-homemaker/man-breadwinner stereotype and rooted in the specific historical circumstances of communist Czechoslovakia. The Court acknowledged that the demographic shifts and changes in perceptions of the roles of the sexes are gradual and in light of the wide margin of appreciation the State cannot be criticised for progressively modifying its pension system to reflect these changes. There had therefore been no violation of Article 14 (prohibition on discrimination) taken in conjunction with Article 1 of Protocol No. 1. 18 Minarik v the Czech Republic App no 46677/06 (ECHR, February 2011). 19 Golha v the Czech Republic App no 7051/06 (ECHR, May 2011). 20 Vokurka v the Czech Republic (dec.) App no 40552/02 ( ECHR, October 2007), cf. Antoni v the Czech Republic App no 18010/06 (ECHR, November 2010). 21 Andrle v the Czech Republic App no 6268/08 (ECHR, February 2011).

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