Resolution CM/ResDH(2010)200[1]
Execution of the judgments of the European Court of Human Rights
Melegari, Morselli, Falzarano and Balletta, Esposito & Della Vecchia 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 several 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 setting of limits to their personal capacity and absence of a remedy to complain of those limits (violations of Article 3 of Protocol No. 1, Articles 8 and 13) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its 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 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(2010)200
Information on the measures taken to comply with the judgments in the cases of
Melegari, Morselli, Falzarano and Balletta, Esposito & Della Vecchia against Italy
Introductory case summary
These cases concern restrictions of various rights of the applicants, ordered in the framework of the bankruptcy proceedings against them and in particular:
- limits on their personal capacity: 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 (advocate, notary, commercial adviser). They were unable to obtain rehabilitation and thus put an end to 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 Article 8). Furthermore, concerning this violation, the European Court held that the applicants disposed of no effective remedy (violation of Article 13, in all cases except in the case Morselli);
- suspension of the electoral rights of the applicants for five years counting from the declaration of bankruptcy: the European Court found that this measure, which was applicable to bankrupts even in the absence of deceit or fraud on the sole basis of their insolvency, resulted in the marginalisation of the applicants and had the appearance of a moral sanction. This measure, provided by presidential decree No. 223 of 20/03/1967 and modified by Law No. 15 of 16/01/1992, did not in the Court’s view pursue any legitimate aim (violation of Article 3 of Protocol No. 1, in the case Melegari)
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Date of judgment
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Paid on
Melegari
17712/03
judgment of 13 November 2007
-
3 000,00 EUR
2 000,00 EUR
5 000,00 EUR
15/12/2008
Morselli
22697/04
judgment of 17 July 2007
-
-
2 000,00 EUR
2 000,00 EUR
04/04/2008
Falzarano and Balletta
6683/03
judgment of 13 November 2007
-
-
2 000,00 EUR
2 000,00 EUR
12/06/2008
Esposito
35771/03
judgment of 27 November 2007
-
-
2 000,00 EUR
2 000,00 EUR
19/12/2008
Della Vecchia
26570/04
judgment of 03 July 2007
-
-
2 000,00 EUR
2 000,00 EUR
26/05/2008
The just satisfaction has been paid in conditions apparently to be accepted by the applicants.
b) Individual measures
No individual measure is necessary as the restrictions on the applicants were lifted by the reform of bankruptcy law of 2006.
II.General measures
Legislative Decree No. 5/2006, adopted in January 2006 resolved the questions raised in the Court’s judgments in these cases. Article 152 of this decree has repealed the provisions concerning the suspension of electoral rights and Article 47 has removed the restriction on personal capacity (for further details see Final Resolution CM/ResDH(2008)45, adopted by the Committee of Ministers in the cases of Albanese, Campagnano and Vitiello against Italy, on 25 June 2008).
III.Conclusions of the respondent state
The government considers that no individual measures are necessary in these cases apart from the payment of the just satisfaction awarded by the European Court, that the general measures adopted will prevent 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 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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