Interim Resolution CM/ResDH(2007)27
Bankruptcy proceedings in Italy:
Progress achieved and problems remaining in the execution of the judgments
of the European Court of Human Rights
(Adopted by the Committee of Ministers on 4 April 2007,
at the 992nd meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee shall supervise the execution of the final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Considering the judgments listed in Appendix II, in which the Court found that the restrictions imposed on individuals' rights and freedoms in the context of bankruptcy proceedings violated various provisions of the Convention, in particular:
- the right to respect for correspondence (violations of Article 8);
- the right of freedom of movement (violations of Article 2 of Protocol No. 4);
- the right to the peaceful enjoyment of one's possessions (violations of Article 1 of Protocol No. 1); and
- the right to an effective remedy in respect these violations (violations of Article 13);
- the right of access to a court (violation of Article 6, paragraph 1);
Recalling the Court's finding that the need for these restrictions, which were not open to criticism in themselves diminishes with the passage of time so that the excessive length of bankruptcy proceedings upsets the balance between the individual interest of the bankrupt and the general interest of the creditors;
Recalling further that Court considered that the imposition of certain personal disqualifications resulting from the public registration of bankrupts was not necessary in a democratic society and ran counter to the respect of the right to private life (violations of Article 8);
Underlining states' obligation under the terms of Article 46, paragraph 1, of the Convention, to comply with the Court's judgments by adopting individual measures designed to put an end to the violations found, and to erase their consequences to ensure as far as possible restitutio in integrum, as well as general measures to prevent similar violations in the future;
Noting that many of the restrictions at issue originated from Royal Decree No. 267 of 16 March 1942 which imposed on declared bankrupts the supervision of their correspondence, the prohibition on leaving their place of residence without judicial authorisation as well as certain personal disqualifications and banned them from administering their property and from going to law with regard to such property;
Noting further that Decree No. 223 of 20 March 1967 by the President of the Republic, as amended by Law No. 15 of 16 January 1992 provided the suspension of bankrupts' electoral rights for five years following the declaration of their bankruptcy;
Noting however that the most intractable cause of the violations remains the structural problem of the excessive length of judicial proceedings in Italy;
Welcoming the reform brought in on 9 January 2006 by Legislative Decree No. 5/2006 which introduced new rules, lifting most of the restrictions previously imposed in bankruptcy proceedings, thus making good a number of the violations found by the Court (for more details, see Appendix I);
Noting with satisfaction that the restrictions on bankrupts have thus been lifted with immediate effect in all proceedings still pending, that the rules governing complaints against acts of liquidators and magistrates in bankruptcy matters have been effectively changed and that the suspension of their electoral rights and the personal disqualifications have also been lifted;
Noting that the reform also introduced measures to accelerate bankruptcy proceedings, the efficacy of which will be examined in the context of the general problem of the excessive length of proceedings;
Recalling in this respect that the general problem of the length of judicial proceedings continues to exist in Italy and also affects bankruptcy proceedings, leading in addition to violations of the requirement of reasonable time and other related violations( right to the peaceful enjoyment of possessions and right of access to a court);
Emphasising that the problem of the excessive duration of judicial proceedings, by dint of its persistency and scope, represents a concrete danger for the respect of the Rule of Law in Italy (see Interim Resolution ResDH(2005)114) and that Italy still has to comply with its obligation under the Convention to solve this structural problem which has given rise to so many, varied violations of the Convention since the 1980s;
Recalling that, in its last Interim Resolution on the subject, ResDH(2007)2, the Committee of Ministers invited the Italian authorities to undertake interdisciplinary action involving all the major judicial actors and co-ordinated at the highest political level, to draw up a new, effective strategy to overcome this structural problem;
Also recalling its decision to resume consideration of the progress achieved setting up this strategy before 1 November 2008 and welcoming the Italian authorities' intention of co-operating closely and regularly with the Council of Europe Secretariat in this respect,
Noting with concern where individual measures are concerned all proceedings have been closed except for those in the case of S.C., V.P., F.C. and E.C which are still pending after 14 years, which means that certain effects of the violation of Article 1 Protocol No. 1 found by the Court remain,
INVITES the authorities to bring an end as soon as possible to the 14-year-old proceedings in the case of S.C., V.P., F.C. and E.C and to erase thus all remaining effects of the violations found by the European Court;
WELCOMES the 2006 reform of bankruptcy proceedings and its immediate effect in erasing many restrictions of rights and freedoms criticised in the Court's judgments;
DECIDES examine these cases in conjunction with those related to the more general problem of the excessive duration of judicial proceedings and to resume examination of the measures required in the context of its next examination of that problem which is scheduled for before 1 November 2008;
CALLS ON the Italian authorities and the Secretariat to keep it regularly informed of progress achieved in setting up the new national strategy to overcome the general problem of the duration of judicial proceedings in Italy as well as the effects of the reform on the acceleration of bankruptcy proceedings.
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Appendix I to Interim Resolution CM/ResDH(2007)27
Information provided by the Government on measures adopted to erase the consequences of the violations found by the Court and to prevent new, similar violations
Individual measures
Following the reform of 2006 (see General measures below) the restrictions on correspondence and freedom of movement as well as the disqualifications and the suspension of electoral rights have been lifted with immediate effect. In addition, means of complaint against acts and omissions by liquidators and judges have been improved. No further measure is necessary in respect of these restrictions with regard to any of the cases at issue.
In the only pending case, that of S.C., V.P., F.C. and E.C., the length of the proceedings is not solely the fault of the authorities but also due to the conduct of the applicants which has obliged the liquidator to take measures to recover certain property fraudulently misappropriated from the property due to the creditors. However, the competent authorities are fully aware of the pressing need to accelerate these proceedings as far as possible.
General measures
1) Legislative measures adopted in 2006: Italy has reformed its bankruptcy law through Legislative Decree No. 5/2006, of 9 January 2006, which brought about a number of modifications to remedy the violations found, in particular:
- Respect for correspondence: (Article 48 of the Decree):
The bankrupt now receives all his correspondence and is obliged to transmit to the liquidator only communications concerning the bankruptcy proceedings, whereas beforehand all letters were diverted directly to the liquidator;
- Freedom of movement: (Article 49):
The only obligation remaining now the bankrupt is to inform the competent authorities of any change of residence, whereas formerly he could not leave his residence without authorisation;
- Personal disqualifications (Article 47):
The public bankruptcy register has been abolished.
- Suspension of electoral rights (Article 152):
The relevant provisions have been repealed.
- Complaints against the acts or omissions of liquidators and magistrates (Article 26 and 36 of the Decree):
This new rule, which abolished preventive supervision of correspondence, should also resolve the problem found by the Court concerning remedies. In any event, the new reform has improved remedies in that decisions must be given rapidly and in that omissions by the liquidator may be challenged.
- Right to a trial within a reasonable time:
According to information already provided by the government in the course of consideration of the cases of length of judicial proceedings, the recent reform of bankruptcy law has modified many specific rule governing bankruptcy to avoid opening proceedings where possible or otherwise to accelerate them by simplifying them and introducing deadlines and more efficient mechanisms.
2) Publication of the European Court's judgments: The judgments in Luordo and Bottaro have been published in Italian in the Ministry of Justice's Bulletin, No. 1 of 15 January 2004 and have been brought to the attention of the competent authorities. Certain judgments in this group of cases have been published on Italian legal websites (see: ).
3) Questions still outstanding: Property rights, right to a court, excessive length of proceedings
For the duration of bankruptcy proceedings, the liquidator administers the property and is responsible before the courts for all questions relating to it. The reform did not cover this aspect because it is inherent in the very aim of the bankruptcy procedure. In this respect, the European Court underlined that such interference in the administration and representation of property was not to be called into question in itself but only insofar as they lasted too long. The origin of the violation is thus to be found in the excessive length of bankruptcy proceedings.
The government is thus of the view that the general measures which remain to be taken for compliance with the judgments in these case are closely linked with those to be envisaged to overcome the general problem of the excessive length of judicial proceedings. The adoption of such measure, including setting up the new national strategy, will remain under the supervision of the Committee of Ministers in the framework of its role pursuant to Article 46, paragraph 2, of the convention (see Interim Resolution ResDH(2007)2).
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Appendix II to Interim Resolution CM/ResDH(2007)27
List of cases
32190/96Luordo, judgment of 17/07/03, final on 17/10/03
56298/00Bottaro, judgment of 17/07/03, final on 17/10/03
47778/99Bassani, judgment of 11/12/03, final on 11/03/04
25513/02Bova, judgment of 24/05/2006, final on 11/12/2006
17175/02Calicchio and Urriolabeitia, judgment of 29/06/2006, final on 11/12/2006
21757/02Campello, judgment of 06/07/2006, final on 06/10/2006
3649/02Chiumiento, judgment of 29/06/2006, final on 11/12/2006
6597/03Ciaramella Pietro, judgment of 06/07/2006, final on 11/12/2006
10644/02Collarile, judgment of 08/06/2006, final on 08/09/2006
77986/01Forte, judgment of 10/11/2005, final on 10/02/2006
3643/02Francesca Carmine, judgment of 24/05/2006, final on 11/12/2006
3647/02Francesca Cosimo, judgment of 24/05/2006, final on 11/12/2006
55984/00Goffi, judgment of 24/03/2005, final on 06/07/2005
3653/02La Frazia, judgment of 29/06/2006, final on 11/12/2006
3656/02Marrone, judgment of 24/05/2006, final on 11/12/2006
42053/02Matteoni, judgment of 08/06/2006, final on 08/09/2006
7774/02Minicozzi, judgment of 24/05/2006, final on 11/12/2006
10399/02Moretti Francesco, judgment of 24/05/2006, final on 11/12/2006
7503/02Neroni, judgment of 20/04/2004, final on 10/11/2004
21120/02Pantuso, judgment of 24/05/2006, final on 11/12/2006
39884/98Parisi and 3 others, judgment of 05/02/04, final on 05/05/04
20662/02Pernici, judgment of 24/05/2006, final on 11/12/2006
44521/98Peroni, judgment of 06/11/03, final on 06/02/04
52985/99S.C., V.P., F.C. and E.C., judgment of 6/11/03, final on 6/02/04
3641/02Taiani Pio and Ermelinda, judgment of 20/07/2006, final on 20/10/2006
3638/02Taiani Vincenzo, judgment of 13/07/2006, final on 13/10/2006
51703/99Vadalà, judgment of 20/04/2004, final on 20/07/2004
29871/02Vertucci, judgment of 29/06/2006, final on 11/12/2006
27394/02Ziccardi, judgment of 08/06/2006, final on 08/09/2006
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