BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

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

[New search] [Contents list] [Help]


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



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/eu/cases/ECHR/1996/53.html