ONTRIBUTION TO THE DEBATE ON THE PRINCIPLE OF EQUALITY OF ARMS ; DOPRINOS RASPRAVI O NAČELU JEDNAKOSTI PROCESNIH SREDSTAVA

The principle of equality of arms requires that each party to the proceedingsshould have equal opportunity to present facts and support them with their evidencewithout of putting any party in a substantial disadvantage. (Case LB INTERFINANZAG against Croatian, judgment, 27.03.2008 ., application no. 29549/04.). In termsof the procedural balance between the parties, this principle constitutes one of theessential elements of the right to a fair trial. However, the question of equality of armsis again raised in Bankruptcy Act (Official Gazette, 71/15. hereinafter: BA). BA haskept solution in which the creditor is able to initiate bankruptcy proceedings if hemakes the existence of its claims likely possible and the existence of the reasons forbankruptcy. However, the legislator has retained the disputed solution in which theprobability of the existence of the creditor claim can be proven by non-final judicialor non-final administrative decisions.As there are different solutions in terms of the above mentioned assumptions, theauthors will focus on general statements based on comparative experiences, withoutdetail consideration of the numerous and specific comparative solutions. This paperdiscusses the practical, but also theoretical implications of positive legal solutionsspecifically analysing the law of the European Court of Human Rights (ECtHR) inproceedings according to Art. 6 (right to a fair trial) of the European Conventionfor the Protection of Human Rights and Fundamental Freedoms (ECHR), becausewe assume that these information play key role in the understanding of the issueconcerned. In addition, authors are trying to get the answer on the question will overallunsatisfied indicators of bankruptcy proceedings, which are the result of structuralproblems, need “stringent” procedural measures to resolve that situation. The subjectof the paper is also a nomotehnical dimension of this issue, because the same solutionwas in the old Bankruptcy Act (Official Gazette, 44/96, 29/99, 129/00, 123/03, 82/06,116/10, 25/12, ...