CEDH · PRESS;GENERAL;ENG — 17 juillet 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s485C010F { margin-left:13.52pt; padding-left:7.48pt; font-family:serif } .s560DCDD3 { margin-left:10.52pt; padding-left:7.48pt; font-family:serif } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .sD3427EA2 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s23A41E03 { width:36pt; display:inline-block }   EUROPEAN COURT OF HUMAN RIGHTS [Note1]     396   17.7.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS IN THE CASES OF LUORDO v. ITALY and BOTTARO v. ITALY   The European Court of Human Rights has today notified in writing its judgments [1] in the cases of Luordo v. Italy (application no. 32190/96) and Bottaro v. Italy (no. 56298/00). The Court held unanimously in both cases   that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights); that there had been a violation of Article 8 (right to respect for correspondence) of the Convention; and that there had been a violation of Article 2 of Protocol No. 4 (freedom of movement) to the Convention.   In the case of Luordo v. Italy the Court also held unanimously that there had been a violation of Article 6 § 1 (right of access to a court) of the Convention.   In the case of Bottaro v. Italy the Court also held unanimously that there had been a violation of Article 13 (right to an effective remedy) of the Convention.   Under Article 41 of the Convention (just satisfaction), the Court awarded Mr Luordo 31,000 euros (EUR) and Mr Bottaro EUR 27,000 for non-pecuniary damage. The Court also awarded Mr Bottaro EUR 3,000 for costs and expenses.   (The judgments are in French only.)   1.     Principal facts   The applicants, Giuseppe Luordo and Giuseppe Bottaro, are Italian nationals who were born in 1928 and 1934 respectively. Mr Luordo lives in Druento and Mr Bottaro in Bergamo.   Luordo v. Italy In 1982 the Asti District Court ordered the compulsory winding-up of Mr Luordo’s wife’s company. In   November 1984 it declared Mr Luordo, who was a partner in the business, bankrupt. After the applicant’s house had been sold at auction in April 1996 the judge appointed to supervise his affairs decided that Mr Luordo had sufficient means to pay his creditors and discharged him from bankruptcy on 17 July 1999.   Bottaro v. Italy On 13 November 1990 the Bergamo District Court declared the applicant bankrupt. In November 1996 the judge appointed to supervise his affairs authorised the sale at auction of Mr Bottaro’s immovable property. Mr Bottaro has not yet been discharged from bankruptcy.   2.     Procedure and composition of the Court   Mr Luordo’s application was lodged with the European Commission of Human Rights on 28   March 1996 and Mr Bottaro’s on 18   February 1998. Both applications were transmitted to the Court on 1 November 1998. They were declared partly admissible on 23 May 2002.   The judgments were given by a Chamber of 7 judges, composed as follows:   Christos Rozakis (Greek), President , Peer Lorenzen (Danish), Giovanni Bonello (Maltese), Françoise Tulkens (Belgian), Nina Vajić (Croatian), Egil Levits (Latvian), judges , Guido Raimondi (Italian), ad hoc judge , and also Søren Nielsen , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants alleged a violation of Article 1 of Protocol No. 1 to the Convention in that the bankruptcy orders had deprived them of all their possessions. They further complained that, after they had been declared bankrupt, all the correspondence sent to them had been handed over to the trustees in bankruptcy, contrary to Article 8. Relying on Article 2 of Protocol No.   4, the applicants complained of the restriction prohibiting bankrupts from leaving their place of residence. In addition, Mr Bottaro contended that the lack of a remedy whereby he could have complained of the protracted interception of his correspondence was contrary to Article 13. Lastly, relying on Article 6 § 1, Mr Luordo asserted that as a bankrupt he had been prevented from bringing judicial proceedings to protect his interests.   Decision of the Court   Article 1 of Protocol No. 1 to the Convention   The Court noted that it was not in dispute between the parties that there had been interference with the applicants’ right to property. Following the judgments in which they had been declared bankrupt the applicants had been deprived, not of their property, but of the possibility of administering and disposing of their possessions, which were under the control of the trustees in bankruptcy. The interference in question had been intended to ensure payment of the bankrupts’ creditors, and had therefore had the legitimate aim of protecting the rights of others.   The Court noted that the restriction on the applicants’ right to the peaceful enjoyment of their possessions was not open to criticism in itself, regard being had to the legitimate aim pursued and to the margin of appreciation left to States. However, there was a risk that such a system might impose an excessive burden on the applicants as regards the possibility of disposing of their possessions, particularly in view of the length of proceedings which had lasted 14 years and 8 months in the Luordo case and 12 years and 6 months in the Bottaro case. In that connection the Court did not accept the Government’s argument that the length of the proceedings in the Luordo case had been due to the attempts to sell the applicant’s house at auction and to his conduct.   The restriction on the applicants’ right to the peaceful enjoyment of their possessions had not been justified throughout the proceedings, since although in principle deprivation of the right to administer and dispose of possessions was a necessary measure in order to achieve the aim pursued, the need for it diminished with the passage of time. In the Court’s view, the length of the proceedings had therefore upset the balance to be maintained between the general interest in payment of a bankrupt’s creditors and the applicants’ individual interest in peaceful enjoyment of their possessions. The interference with the applicants’ rights had therefore been disproportionate to the objective pursued. The Court accordingly held in both cases that there had been a violation of the Convention in that respect.   Article 8 of the Convention   The Court noted that there had been interference with the applicants’ right to respect for their correspondence and that the interference had been prescribed by the Bankruptcy Act. Its aim had been to secure information about the bankrupt’s estate so that he could not remove assets from his creditors’ reach. It had therefore pursued the legitimate aim of protecting the rights of others.   The Court noted that setting up a system of interception of the applicants’ correspondence was not open to criticism in itself. However, there was a risk that this might impose an excessive burden on them, particularly in view of the length of proceedings which, in the first of the cases concerned, had lasted over 14 years and, in the second, over 12 years.   The restriction on the applicants’ right to respect for their correspondence had not been justified throughout the proceedings, since although in principle interception was a necessary measure in order to achieve the aim pursued, the need for it diminished with the passage of time. In the Court’s view, the length of the proceedings had therefore upset the balance to be maintained between the general interest in payment of a bankrupt’s creditors and the applicant’s individual interest in respect for their correspondence. The interference with the applicants’ rights had therefore been disproportionate to the objective pursued. The Court accordingly held in both cases that there had been a violation of the Convention in that respect.   Article 2 of Protocol No. 4 to the Convention   The Court noted that there had been interference with the right to freedom of movement and that the interference had been prescribed by the Bankruptcy Act. Its aim had been to ensure that the bankrupt could be reached with a view to assisting in the settlement of his affairs. It had therefore pursued the aim of protecting the rights of others, namely the creditors.   The Court considered that the restriction on the freedom of movement was not open to criticism in itself. However, there was a risk that such a system might impose an excessive burden on the applicants, particularly in view of the length of proceedings which, in the first of the cases concerned, had lasted over 14 years and, in the second, over 12 years.   The restriction on the applicants’ freedom of movement had not been justified throughout the proceedings, since although in principle forbidding a bankrupt to move away from his place of residence was a necessary measure in order to achieve the aim pursued, the need for it diminished with the passage of time. Even though there was nothing in the files to show that the applicants had wished to leave their place of residence or that they had been refused permission, in the Court’s view the length of the proceedings had upset the balance to be maintained between the general interest in payment of a bankrupt’s creditors and the applicants’ individual interest in freedom of movement. The interference with the applicants’ freedom had therefore been disproportionate to the objective pursued. The Court accordingly held in both cases that there had been a violation of the Convention in that respect.   Article 6 § 1 of the Convention, relied on in the Luordo v. Italy case   The Court considered that this complaint was to be examined from the standpoint of the right of access to a court. It noted that from the time of the bankruptcy order it fell to the trustee in bankruptcy to represent the bankrupt in the courts in matters relating to his financial rights; the limitation on the right to bring judicial proceedings was intended to protect the rights of others, namely the bankrupt’s creditors.   Such a restriction on the right of access to a court was not open to criticism in itself. However, there was a risk that such a system might impose an excessive burden on the applicant, particularly in view of the length of proceedings which, in the present case, had lasted 14 years and 8 months. The Court considered that this restriction had not been justified throughout the proceedings, since although in principle limitation of the right to bring judicial proceedings was a necessary measure in order to achieve the aim pursued, the need for it diminished with the passage of time. In the Court’s view, the length of the proceedings had therefore upset the balance to be maintained between the general interest in payment of a bankrupt’s creditors and the applicant’s individual interest in access to a court. The interference with the applicant’s right had therefore been disproportionate to the objective pursued. The Court accordingly held that there had been a violation of the Convention in that respect.   Article 13 of the Convention, relied on in the Bottaro v. Italy case   Having regard to the conclusion it had reached with regard to Article 8, the Court considered that the applicant’s complaint had been arguable for the purposes of Article 13 and that Mr   Bottaro had therefore been entitled to an effective remedy within the meaning of that provision.   It noted that sections 26 and 36 of the Bankruptcy Act made provision for two types of appeal whereby a bankrupt could complain of the decisions of the judge appointed to supervise his affairs or the steps taken by the trustee in bankruptcy. However, neither of these appeals was capable of providing a remedy for the protracted restriction on enjoyment of the right to respect for correspondence relied on by the applicant. The Court accordingly held that there had been a violation of the Convention in that respect.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court. [Note1]   Press release for individual judgments . 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