Resolution CM/ResDH(2008)75[1]
Execution of the judgments of the European Court of Human Rights
Abbatiello, Federici, Maugeri, Scassera against Italy
(Application No. 39638/04, judgment of 20 September 2007, final on 20 December 2007 –
Application No. 13404/04, judgment of 13 November 2007, final on 13 February 2008 -
Application No. 13611/04, judgment of 31 July 2007, final on 31 October 2007 –
Application No. 43458/04, judgment of 20 September 2007, final on 20 December 2007)
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 implementation 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) (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;
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(2008)75
Information about the measures taken to comply with the judgments
in the cases of Abbatiello, Federici, Maugeri, Scassera 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). 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 Article 8). Furthermore, the European Court held that the applicants disposed of no effective remedy in this context (violation of Article 13).
I.Individual measures
The Court did not award the applicants just satisfaction. No further individual measure is necessary, the restrictions imposed having been lifted by the 2006 reform (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. Indeed, the decree 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 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies
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