SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41412/98
by SPORTSWEAR COMPANY S.p.A.
against Italy
The European Court of Human Rights (Second Section) sitting on 20 April 1999 as a Chamber composed of
MrC. Rozakis, President,
MrM. Fischbach,
MrB. Conforti,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska, Judges,
withMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 November 1997 by SPORTSWEAR COMPANY S.p.A. against Italy and registered on 2 June 1998 under file no. 41412/98;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian limited company, having its registered office in Ravarino (Modena).
It is represented before the Court by Mr Gino Veroni, a lawyer practising in Carpi (Modena).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1997, the applicant company, acting as a creditor of limited company C., requested the Rome District Court to declare the latter insolvent and wind it up.
On an unspecified date, the investigating judge scheduled the first hearing for 2 April 1998.
In a judgment of 23 April 1998, the Rome District Court declared the limited company C. insolvent.
According to Section 67 § 2 of Royal Decree No. 267 of 16 March 1942 (hereinafter referred to as the "legge fallimentare"), the receiver appointed by the District Court may, subject to proof that the other party was aware that the debtor was insolvent, obtain the revocation of every payment of a debt and of every alienation of assets carried out by the debtor in the year which precedes the formal declaration of insolvency, by means of the so-called "azione revocatoria fallimentare".
COMPLAINT
Invoking Article 6 § 1 of the Convention, the applicant company complains about the decision of the investigating judge fixing the date of the first hearing at 2 April 1998.
PROCEDURE
The application was introduced on 4 November 1997 and registered on 2 June 1998.
On 10 September 1998, the European Commission of Human Rights decided to give notice of the application to the respondent Government, and invited them to submit their observations on its admissibility and merits.
The Government submitted their observations on 1 December 1998, to which the applicant company replied on 29 January 1999.
By virtue of Article 5 § 2 of Protocol No. 11 to the Convention, which entered into force on 1 November 1998, the application shall thereafter be examined by the European Court of Human Rights.
THE LAW
The applicant company complains about the decision of the investigating judge fixing the date of the first hearing at 2 April 1998. It invokes Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“ In the determination of his civil rights and obligations (...) everyone is entitled to a (...) hearing within a reasonable time by [a] tribunal (...).”
The applicant company observes that the first hearing was scheduled one year after it commenced proceedings before the District Court. Given the time-limit laid down in section 67 § 2 of the legge fallimentare, such a delay deprived it of any serious prospect of obtaining, through the receiver, the revocation of the payments and alienation of assets carried out by the debtor before the introduction of the request to have it declared insolvent.
The Government observe that the delay in fixing the hearing was due to the Rome District Court’s backlog. In any case, no payment or alienation carried out by the debtor could have been revoked in the present case, as the limited company C. had stopped payments in October 1996 and ceased trading in December 1996. Therefore, no pecuniary damage was sustained by the applicant company, which, moreover, failed to request that its case be dealt with promptly.
The applicant company notes that the Government should be considered responsible for the backlog of the domestic courts. As to the alleged absence of any payment or alienation to be revoked, the applicant company considers that the Government’s allegations on this point are unsubstantiated and that, in any case, such a fact cannot deprive it of its right to trial within a reasonable time.
The Court observes that the proceedings before the Rome District Court started on 7 April 1997 and ended on 23 April 1998. They thus lasted one year and sixteen days for one degree of jurisdiction. Even if the delay in fixing the date of the hearing could at first sight seem unduly long, the Court considers that the overall duration of the proceedings cannot be seen as contrary to the requirements of Article 6 § 1.
In so far as the facts complained of could raise a question of access to court by reason of the time-limit fixed in Article 67 § 2 of the legge fallimentare and the date of the first hearing, the Court observes that the applicant company has not shown that the debtor had made any payments which it wished to have revoked. Consequently, the applicant company did not raise before the Court any issues in relation to which the time-limit in the legge fallimentare would have prevented an examination by the court. In these circumstances, the Court finds that the applicant company has not suffered any hindrance in its right to bring its claims before a “tribunal” satisfying the requirements of Article 6 § 1 of the Convention.
It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, unanimously, the Court
DECLARES THE APPLICATION INADMISSIBLE.
Erik FriberghChristos Rozakis
Registrar President
Full & Egal Universal Law Academy