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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> CETERONI v. ITALY - 22461/93;22465/93 [1996] ECHR 53 (15 November 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/53.html
Cite as: [1996] ECHR 53
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In the case of Ceteroni v. Italy (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr C. Russo,
Mr S.K. Martens,
Mrs E. Palm,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 28 June and 21 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 55/1995/561/646-647. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The third number indicates the case's
position on the list of cases referred to the Court since its creation
and the last two numbers indicate its position on the list of the
corresponding originating applications to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by three Italian nationals,
Mr Umberto and Mr Gaetano Ceteroni and Mrs Anna Maria Ceteroni,
née Magri ("the applicants") on 15 June 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in two applications
(nos. 22461/93 and 22465/93) against the Italian Republic lodged with
the European Commission of Human Rights ("the Commission") under
Article 25 (art. 25) by the three Ceteronis on 2 December 1992.
The applicants' application to the Court referred to Article 48
of the Convention (art. 48) as amended by Protocol No. 9 (P9), which
has been ratified by Italy. The object of the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Articles 6
para. 1 and 8 of the Convention (art. 6-1, art. 8) and Article 2
para. 1 of Protocol No. 4 (P4-2-1).
2. On 27 September 1995 the Court's Screening Panel decided not
to decline consideration of the case and to submit it to the Court
(Article 48 para. 2 of the Convention) (art. 48-2).
3. The Chamber to be constituted included ex officio Mr C. Russo,
the elected judge of Italian nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21
para. 4 (b) of Rules of Court B). On 29 September 1995, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr S.K. Martens, Mrs E. Palm,
Mr A.N. Loizou, Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr J. Makarczyk and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Italian Government ("the Government"), the applicants' lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the applicants' memorial on 2 April 1996 and the
Government's memorial on 8 May 1996.
5. On 14 May 1996 the President gave the applicants' lawyer leave
to use the Italian language in the proceedings before the Court
(Rule 28 para. 3).
6. On 31 May 1996 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
27 June 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment
to the Diplomatic Legal Service,
Ministry of Foreign Affairs, co-Agent,
Mr V. Napoleoni, magistrato, on secondment
to the Ministry of Justice, Counsel;
(b) for the Commission
Mr B. Conforti, Delegate;
(c) for the applicants
Mr R. Vico, avvocato, Counsel,
Mr F. Uggetti, avvocato,
Ms C. Gardini, Advisers.
The Court heard addresses by Mr Conforti, Mr Vico, Mr Uggetti
and Mr Raimondi.
AS TO THE FACTS
I. Particular circumstances of the case
8. On 2 April 1982 the District Court of Fermo (Ascoli Piceno)
made an insolvency order in respect of the company set up by
Mr Umberto Ceteroni and his parents and also declared them personally
bankrupt.
9. On 8 and 15 June 1983 respectively Mr A. and the L.M. company,
claiming to be creditors of the bankrupts, instituted
separate proceedings before the Fermo bankruptcy judge
(giudice delegato) contesting the statement of liabilities drawn up
with a view to settling the company's debts. The judge set down
hearings to enter appearances on 26 October and 9 November 1983
respectively. On the latter date the liquidator applied to the judge
for leave to join the second proceedings. His application was allowed
on 3 February 1987.
10. The preparatory phases of the two cases continued until 15 and
29 October 1990. During the intervening period fifteen hearings were
held in one case and sixteen in the other; they were almost all
adjourned at the request of the parties or by the judge of his own
motion.
11. On a date that has not been specified the two sets of
proceedings were stayed sine die because the judge had been transferred
to another post. Proceedings were reopened on 25 March and
7 February 1994.
12. On 30 May 1994 the Fermo District Court struck the first case
out of its list because the parties had failed to appear. According
to information supplied by the applicants' lawyer, the plaintiff had
decided not to pursue his case.
As regards the second case, on 21 February 1994 the parties
communicated their final submissions and the judge set down the trial
hearing for 11 March 1994, on which date the Fermo District Court
allowed the L.M. company's application. The text of the judgment was
deposited at the registry on 7 April 1994.
II. Relevant domestic law
13. The relevant provisions of Royal Decree no. 267 of
16 March 1942 read as follows:
Section 26
"An appeal shall lie against the decisions of the bankruptcy
judge ... to the district court within three days of their
adoption, and may be lodged by the liquidator, by the
bankrupt, by the creditors' committee or by any other person
with an interest.
The district court shall deliberate in private session and
give a reasoned decision.
The appeal shall not have suspensive effect in relation to the
impugned decision."
Section 36
"An appeal shall lie against measures taken by the liquidator.
Such appeals may be lodged by the bankrupt, or any other
person with an interest, with the bankruptcy judge, who shall
give a reasoned decision.
An appeal against that decision must be lodged within
three days with the district court. That court shall give a
reasoned decision after hearing the liquidator and the
appellant."
Section 48
"Correspondence addressed to the bankrupt must be passed to
the liquidator, who shall be empowered to retain
correspondence concerning property interests. The liquidator
has a duty of confidentiality as regards the content of the
correspondence that does not relate to such interests."
Section 49
"The bankrupt may not leave his place of residence without the
authorisation of the bankruptcy judge and must report to that
judge, to the liquidator and to the creditors' committee each
time that he is duly summoned, except where he is unable to
appear on legitimate grounds and the judge gives him leave to
send a representative.
If the bankrupt fails to comply with a summons, the judge may
order that he be brought by the police."
PROCEEDINGS BEFORE THE COMMISSION
14. The applicants applied to the Commission on 2 December 1992.
They relied on Articles 6 para. 1 and 8 of the Convention (art. 6-1,
art. 8) and Article 2 para. 1 of Protocol No. 4 (P4-2-1), complaining
of the length of two sets of civil proceedings, an interference with
their right to respect for their correspondence and with their right
to liberty of movement within the territory of their State and freedom
to chose their place of residence there.
15. The Commission declared the applications (nos. 22461/93 and
22465/93) admissible on 17 October 1994. In its report of
22 February 1995 (Article 31) (art. 31), it expressed the unanimous
opinion that there had been a violation of Article 6 para. 1
(art. 6-1), and that it was not necessary to determine whether there
had been breaches of Article 8 of the Convention (art. 8) or of
Article 2 para. 1 of Protocol No. 4 (P4-2-1). The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
16. At the hearing the Government requested the Court, by way of
primary submission, to find the application inadmissible for failure
to exhaust domestic remedies and, in the alternative, to hold that
there had been no violation of the Convention or of Protocol No. 4
(P4).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
17. The applicants complained of the length of two sets of
civil proceedings and relied on Article 6 para. 1 of the Convention
(art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
A. The Government's preliminary objection
18. The Government raised an objection to the admissibility of the
applicants' complaint on the ground that they had failed to exhaust the
domestic remedies. Their objection was formulated in two limbs.
In the first limb the Government maintained that under
section 36 of Royal Decree no. 267 of 16 March 1942
("the royal decree") there existed a possibility, even for the
bankrupt, to complain to the bankruptcy judge, not only in respect of
the measures taken by the liquidator but also on account of the
latter's inactivity. The applicants could therefore have asked the
bankruptcy judge to take a more active part in the two sets of
proceedings and to do his utmost to accelerate them.
Under the second limb the Government contended that the
applicants could also have demanded - by virtue of the same provision -
that the bankruptcy judge terminate the bankruptcy proceedings without
waiting for the outcome of the two sets of proceedings contesting the
statement of liabilities. In that event the judge could have, and
would have had to, set aside, when determining the final distribution
of the assets deriving from the sale of goods, a specified sum intended
to meet, if necessary, the debts claimed by the plaintiff creditors.
These remedies were, the Government argued, available,
effective and extremely rapid, as the bankruptcy judge could decide the
matter in a few weeks by a simple reasoned decision and an appeal lay
against his decisions to the district court.
19. As to the first limb of the objection, the Court notes that
under the arrangements set up by the royal decree, the
bankruptcy judge, who exercises general supervision over the bankruptcy
and the activities of the liquidator, is at the same time responsible
for preparing proceedings brought by creditors opposing the
liquidator's decisions for trial. It is in exercising that function
that he authorises the liquidator to join proceedings concerning
objections to the statement of liabilities and he should intervene,
even of his own motion, where the liquidator acts too slowly.
In addition, although the case-law cited by the Government at
the hearing shows that in some cases the bankruptcy judge can have the
liquidator replaced or require him to submit his report on the
management of the bankrupt's assets, there is considerable divergence
of opinion in legal writing on this point. The Court observes that,
while it is not its task to resolve this question, which is a matter
for the Italian legislature, the remedy invoked by the Government
cannot be regarded as effective. In these circumstances the applicants
were under no obligation to avail themselves of it. The objection is
therefore unfounded in this respect.
The second limb was not put forward before the Commission and
the Government are therefore estopped from relying on it.
B. Merits of the complaint
20. It remains to determine whether a reasonable time was exceeded.
The Commission and the applicants considered that it had been, whereas
the Government did not.
21. The Court observes that the periods to be taken into
consideration began on 8 and 15 June 1983 when applications were lodged
with the Fermo bankruptcy judge by Mr A. and the L.M. company. They
ended on 30 May and 7 April 1994, respectively when the first
proceedings were struck out of the list and when the
Fermo District Court's judgment was deposited with the registry in the
second set of proceedings (see paragraphs 8 and 12 above), a total of
almost eleven years in the first proceedings and ten years and
ten months in the second.
22. The reasonableness of the length of proceedings must be
assessed in the light of the circumstances of the case and having
regard to the criteria laid down in the Court's case-law, in particular
the complexity of the case, the applicant's conduct and that of the
relevant authorities (see, among many other authorities,
mutatis mutandis, the Ausiello v. Italy judgment of 21 May 1996,
Reports of Judgments and Decisions 1996-III, p. 722, para. 19).
23. The Government pointed to the applicants' conduct. They had
never applied to the bankruptcy judge to challenge the liquidator's
alleged inactivity. In addition the delay of which they complained had
been the result of the numerous requests for adjournments made by the
parties to the proceedings.
24. Like the applicants and the Commission, the Court notes in the
first place that the liquidator was authorised to join the proceedings
brought by the L.M. company on 3 February 1987, more than three years
after his application to that effect was lodged with the judge
responsible for preparing the case (see paragraph 9 above). In
addition the transfer of the latter, who also exercised the functions
of bankruptcy judge, entailed a stay of more than three years in the
preparation for trial of both cases (see paragraph 11 above).
Consequently, the Court takes the view that any attempt by the
applicants to expedite the proceedings would have been bound to fail.
The judge had, moreover, never refused the applications for adjournment
made by the liquidator and the plaintiffs (Mr A. and the L.M. company).
A "reasonable time" was accordingly exceeded and there has
therefore been a violation of Article 6 para. 1 of the Convention
(art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 2
OF PROTOCOL NO. 4 (art. 8, P4-2)
25. The applicants complained that the unjustified prolonging of
the bankruptcy proceedings had interfered with their right to respect
for their correspondence (Article 8 of the Convention) (art. 8) and
their right to liberty of movement within their State (Article 2 of
Protocol No. 4) (P4-2).
26. The Government contested this submission. They considered that
these complaints could not raise any separate issue from that of the
length of the proceedings as they were the direct or indirect
consequence of that state of affairs.
27. Having regard to the circumstances of the case and the finding
in paragraph 24 above, the Court, like the Commission, does not
consider it necessary also to determine these complaints (see, among
other authorities, mutatis mutandis, the Santilli v. Italy judgment of
19 February 1991, Series A no. 194-D, p. 62, para. 22).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
28. According to Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
29. Citing the prejudice to their clients deriving from the
proceedings brought to contest the statement of liabilities and the
delay in terminating the bankruptcy proceedings, the applicants'
lawyers claimed 1,000,000,000 Italian lire (ITL) for
Mr Umberto Ceteroni and ITL 500,000,000 each for Mr Gaetano Ceteroni
and Mrs Anna Maria Ceteroni. They referred to the difficulties
encountered by the applicants, particularly the first applicant, who
had been 30 years old at the time of the bankruptcy declaration and who
had not been able to secure rapidly the discharge necessary for him to
pursue freely his professional activities.
30. The Government took the view that in the light of the
applicants' conduct during the proceedings whose length they complained
of and in the absence of any evidence to substantiate the claim of
pecuniary damage, a finding of a violation of Article 6 (art. 6), if
the Court were to reach that conclusion, would constitute sufficient
just satisfaction in respect of non-pecuniary damage. The Delegate of
the Commission left this matter to the discretion of the Court.
31. The Court finds that the applicants have not established any
pecuniary damage. However, they undoubtedly suffered non-pecuniary
damage for which the mere finding of a violation does not constitute
sufficient reparation. The Court accordingly awards
Mr Umberto Ceteroni ITL 50,000,000 and Mr Gaetano Ceteroni and
Mrs Anna Maria Ceteroni ITL 25,000,000 each.
B. Costs and expenses
32. The applicants sought the reimbursement of the costs and
expenses incurred before the Convention institutions. They estimated
this amount at ITL 89,640,100, plus 2% for the lawyers' insurance fund
and 19% for value-added tax.
33. The Government and the Delegate of the Commission left this
matter to be determined by the Court, which, having regard to the
evidence available to it and to its case-law in this field, awards the
applicants together ITL 20,000,000 under this head.
C. Default interest
34. According to the information available to the Court, the
statutory rate of interest applicable in Italy at the date of adoption
of the present judgment is 10% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1);
3. Holds that it is not necessary to consider whether there has
been a violation of Article 8 of the Convention or of
Article 2 of Protocol No. 4 (art. 8, P4-2);
4. Holds that the respondent State is to pay, within
three months, 50,000,000 (fifty million) Italian lire to
Mr Umberto Ceteroni and 25,000,000 (twenty-five million) lire
each to Mr Gaetano Ceteroni and Mrs Anna Maria Ceteroni for
non-pecuniary damage and, to the three applicants together,
20,000,000 (twenty million) lire for costs and expenses,
simple interest at an annual rate of 10% being payable on
these amounts from the expiry of the above-mentioned
three months until settlement;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 15 November 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar