Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19496/92

by G.B.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 September 1991

by G.B. against Italy and registered on 7 February 1992 under file

No. 19496/92;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 18 May

1995 and the observations in reply submitted by the applicant on

11 August 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1916 and residing

in Livorno.

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 7 November 1986 the applicant's wife applied to the presiding

judge of the Livorno court in order to obtain an ex parte injunction

freezing ("sequestro conservativo") her husband's bank account and

portfolio (including stocks, shares and securities), in which she

claimed to own a fifty per cent share.

By decree of 7 November 1986, the President of the court allowed

the freezing of the applicant's bank account and portfolio, on the

grounds that the applicant's wife's claim appeared prima facie to be

well-founded (fumus boni iuris) and that there existed a periculum in

mora.

The freezing of the bank account took effect in Livorno on

11 November 1986; that of the portfolio took effect in Pisa on

14 November 1986.

The substantive proceedings were instituted by the applicant's

wife before the Livorno court by summons of 21 November 1986.

By judgment of 17 July 1990, the Livorno court held that the

applicant's wife was the legitimate owner of fifty per cent of the

money deposited in the frozen bank account and of the portfolio, and

therefore ratified the injunction.

The judgment was filed with the registry on 7 November 1990 and

was served on the applicant's wife on 7 January 1991.

By a writ served on 7 February 1991, the applicant lodged an

appeal before the Florence court of appeal against this judgment,

claiming that his wife did not have any property rights over either the

sums of money deposited in his bank account or over his portfolio.

By a decision delivered on 5 March 1993, filed with the registry

on 11 June 1993 and served on the applicant on 1 February 1994, the

Florence court of appeal dismissed the appeal on the grounds that it

had been lodged out of time, the relevant thirty days' time limit

having expired on 6 February 1991.

On 14 April 1994, the applicant lodged an appeal on points of law

against this judgment; the proceedings are currently pending before the

Court of cassation.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the civil proceedings concerning the freezing of

his bank account and portfolio.

He further maintains that the financial prejudice resulting from

the length of the said proceedings infringes Article 1 of Protocol

No. 1.

He finally alleges that the injunction itself constitutes a

violation of Article 1 of Protocol No. 1.

The applicant claims to be the sole legitimate owner both of the

sums of money deposited in his bank account and the portfolio and

therefore complains about the domestic courts' decision.

He further asserts that since his wife's claim related only to

fifty per cent of the money deposited in his bank account and of the

portfolio, the injunction should have been authorised only in relation

to half the money and the stocks, shares and securities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 September 1991 and

registered on 7 February 1992.

On 22 February 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure, as to the complaints about the

length of the proceedings and the financial prejudice resulting

therefrom.

The Government's written observations were submitted on 18 May

1995, after an extension of the time-limit fixed for that purpose. The

applicant replied on 11 August 1995.

THE LAW

1. The applicant complains about the length of the proceedings

concerning the freezing of his bank account and portfolio. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention, according to which:

"In the determination of his civil rights and obligations (...);

everyone is entitled to a (...) hearing within a reasonable time

by (...) a tribunal (...)."

The proceedings in question began on 7 November 1986, when the

applicant's wife applied for an ex parte injunction against the

applicant, and are currently pending before the Court of cassation;

therefore their overall length covers over nine years.

The Government maintain that the overall duration of the

proceedings cannot be regarded as being unreasonable, having regard in

particular to the failure of the applicant to apply for a speedy trial

before the Court of cassation.

The applicant contends that the duration of the proceedings is

in any event excessive, in particular in view of his age.

The Commission considers, in the light of the criteria

established by the case-law of the Convention on the question of

"reasonable time" (the complexity of the case, the applicant's conduct

and that of the competent authorities), and having regard to all the

information in its possession, that the complaint raises serious issues

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. This complaint cannot

therefore be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring this complaint inadmissible has been

established.

2. The applicant further alleges a violation of Article 1 of

Protocol No. 1 (P1-1), as a result both of the length of the

proceedings at issue and of the freezing of his bank account and

portfolio.

Article 1 of Protocol No. 1 (P1-1), in so far as relevant, reads:

"Every (...) person is entitled to the peaceful enjoyment of his

possessions."

a) In so far as the part of the complaint concerning the financial

burden resulting from the length of the proceedings is concerned, the

Commission refers to the case-law of the Commission (No. 25237/94,

Latella v. Italy, dec. 13.9.95, unpublished; No. 26432/95, Siface

v. Italy, dec. 24.10.95, unpublished) and considers that it cannot be

regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention and therefore requires an

examination on the merits.

b) In so far as the remainder of the complaint is concerned, the

Commission observes that it relates to two different aspects of the

freezing of the assets.

On the one hand, the applicant challenges the domestic courts'

decision that his wife is the legitimate owner of fifty per cent of the

frozen money and portfolio.

On the other hand, the applicant maintains that, since his wife's

claim related only to half of his money and portfolio, the freezing of

the other half was unnecessary and unlawful.

However, the Commission observes that the applicant has appealed

against the Livorno court judgment and that the relevant proceedings

are currently pending before the Court of cassation; it therefore

considers that the applicant cannot, at this stage, claim to be a

victim of the alleged violation.

It follows that this part of the complaint must be rejected as

being manifestly ill-founded pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints about the length of the proceedings and

about the financial burden resulting from such length;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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G.B. v. ITALY

G.B. v. ITALY

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