Resolution CM/ResDH(2009)24[1]
Execution of the judgments of the European Court of Human Rights
Bova and 12 others cases against Italy
(see details in Appendix)
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 supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern violations of applicants’ rights throughout proceedings to establish their bankruptcy and/or after the closure of bankruptcy proceedings, such as the suspension of their electoral rights, the imposition of limitations on their personal capacity, the impossibility of obtaining rehabilitation and the lifting of restrictions until five years after the closure of the bankruptcy proceedings as well as absence of a remedy to complain of those limitations (violations of Articles 8 and 13 and of Article 3 of Protocol No.1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Italy’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing, similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2009)24
Information about the measures taken to comply with the judgments
in the cases of Bova and 12 other cases against Italy
Introductory case summary
These cases concern restrictions on the personal capacity of the applicants, ordered in bankruptcy proceedings against them.
As a result of being automatically registered as bankrupt, the applicants were barred from a number of professional activities (managing agent of a property, stockbroker, auditor, arbitrator, administrator or liquidator of commercial companies) as well as from the rolls of certain professions (for instance, advocate, notary and commercial adviser). Their electoral rights were also suspended, the European Court finding this measure, which was applicable to bankrupts even in the absence of deceit or fraud on the sole basis of their insolvency, to result in the marginalisation of the applicants and to have the appearance of a moral sanction. They could not obtain rehabilitation and the lifting of these restrictions until five years after the closure of the bankruptcy proceedings.
The European Court considered that this interference, based on Article 50 of the Bankruptcy Act, was not necessary in a democratic society (violation of Articles 8 and 3 of Protocol No.1). Furthermore, the European Court held that the applicants disposed of no effective remedy in this context (violation of Article 13).
I.Payments and individual measures
a) Details of payments
Name and application number
Date of judgment
Final on
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Paid on
BOVA
25513/02
24/05/2006
11/12/2006
-
1 500 EUR
2 000 EUR
07/11/2006
CAMPELLO
21757/02
06/07/2006
06/10/2006
-
7 000 EUR
2 000 EUR
12/12/2006
COLLARILE
10644/02
08/06/2006
08/09/2006
-
-
3 000 EUR
11/12/2006
CARMINE Francesca
3643/02
24/05/2006
11/12/2006
-
-
2 000 EUR
08/11/2006
COSIMO Francesca
3647/02
24/05/2006
11/12/2006
-
-
2 000 EUR
08/11/2006
MARRONE
3656/02
24/05/2006
11/12/2006
-
-
2 000 EUR
09/11/2006
MINICOZZI
7774/02
24/05/2006
11/12/2006
-
-
2 000 EUR
08/11/2006
MORETTI Francesco
10399/02
24/05/2006
11/12/2006
-
-
2 000 EUR
08/11/2006
PANTUSO
21120/02
24/05/2006
11/12/2006
-
1 500 EUR
2 000 EUR
07/11/2006
PERNICI
20662/02
24/05/2006
11/12/2006
-
-
2 000 EUR
08/11/2006
TAIANI Pio and Ermelinda
3641/02
20/07/2006
20/10/2006
-
3 000 EUR
2 000 EUR
20/01/2007
TAIANI Vincenzo
3638/02
13/07/2006
13/10/2006
-
1 500 EUR
2 000 EUR
08/01/2007
ZICCARDI
27394/02
08/06/2006
08/09/2006
-
6 000 EUR
2 000 EUR
11/12/2006
b) Individual measures
No further individual measures are necessary, the restrictions imposed having been lifted by Legislative Decree No. 5/2006 (see below).
II.General measures
Legislative Decree No. 5/2006, adopted in January 2006, resolved the questions raised in the European Court’s judgments in these cases. The decree brought about a number of modifications to remedy the violations found, in particular:
[...]
- 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 acts or omissions of liquidators and magistrates (Article 26 and 36 of the Decree): The 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 rules governing bankruptcy to avoid opening proceedings where possible or otherwise to accelerate them by simplifying them and introducing deadlines and more efficient mechanisms.
For further details see 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).
III.Conclusions of the respondent state
The government considers that the measures taken will prevent new, similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies
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