FOURTH SECTION

DECISION

Application no. 42632/98 by Umberto ORTOLANI against Italy

The European Court of Human Rights (Fourth Section) , sitting on 5 November 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr V. Zagrebelsky , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 April 1998.

Having regard to the observations submitted by the respondent Government.

Having deliberated, decides as follows:

THE FACTS

The applicant, Umberto Ortolani, is a Brazilian national, who was born in Rome and lived in Brazil . He was represented before the Court by Mr M. Savoldi, a lawyer practising in Milan. In 2002, after the death of the applicant and of Mr M. Savoldi, the applicant’s heirs were represented by Ms M. P. Canino, a lawyer practising in Rome.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a lawyer and a banker by profession.

On 17 March 1981, after a search was carried out of a company’s premises, the Milan Judge for Preliminary Investigations ordered the seizure of a list of 953 names of people who were allegedly members of the Masonic lodge called “Propaganda - P2”- a secret association prohibited by the Italian Constitution. The applicant’s name was included in that list.

Subsequently, the list was submitted to the former Italian Prime Minister with a view to adopting appropriate measures against civil servants - e.g. judges, officials, etc. -  whose names were mentioned therein.

On 7 May 1981 a committee of inquiry was appointed to ascertain whether Propaganda P2 was a secret association prohibited as such by the Constitution.

At its session of 19 May 1981, Parliament found it appropriate for the list to be published.

On 20 May 1981 the Milan judicial authorities informed the former Prime Minister that there were no judicial reasons to prevent the disclosure of the names on the list.

In the light of Parliament’s opinion, on 10 June 1981 the former Prime Minister sent the list for publication in the press. The applicant’s name was thus disclosed.

On 24 March 1983 the applicant served a writ on the former Prime Minister claiming damages for having disclosed his name as being a member of Propaganda P2, thus infringing his right to privacy, reputation and honour.

By a decision of 12 April 1990 the Rome Court stated, inter alia , that the former Prime Minister could not be held liable as the publication of the list was aimed at protecting the Italian institutions, public order and the security of the State. The applicant’s claim was accordingly dismissed.

On 7 January 1991 the applicant challenged that decision before the Court of Appeal of Rome. By a decision of 23 May 1994, the court dismissed the applicant’s appeal.

The applicant lodged an appeal on points of law with the Court of Cassation , pointing out that the judicial authorities had not ruled on the alleged violation of the right to privacy as guaranteed by the Constitution and Law No. 848/1955, which implemented the European Convention of Human Rights. The Court of Cassation did not rule on that specific matter. The court’s finding was that the constituent elements of liability had not been made out in respect of the former Prime Minister. In particular, the latter was found to have acted with a view to protecting the public interest, and therefore diligently. The Court of Appeal’s decision was therefore upheld by a decision of 16 April 1997. The latter decision was filed with the registry on 26 October 1997 and the applicant was informed of the deposit on 27 October 1997.

B. Relevant domestic law

Article 18 of the Italian Constitution provides as follows :

“Freedom of association is guaranteed as long as the association does not pursue a purpose that criminal law prohibits with regard to individuals.

Secret associations and those associations which pursue, even indirectly, political goals through organisations of a military nature, are prohibited.”

COMPLAINTS

Invoking Article 8 of the Convention, the applicant complains that the publication of the above-mentioned list of names amounted to a violation of his right to respect for his private life.

He further complains, under Article 13, that the failure of the judicial authorities to rule on his allegation that his right to privacy had been infringed amounted to a violation of the right to an effective remedy.

The applicant finally complains of the length of the proceedings concerning damages and alleges a violation of Article 6 § 1 of the Convention.

THE LAW

By a letter of 9 May 2002, the lawyer acting on behalf of the applicant’s family informed the Registry of the death of Mr Umberto Ortolani and indicated that the applicant’s heirs did not intend to maintain the application before the Court.

In the light of the above, the Court considers, in accordance with Article 37 § 1 c) of the Convention, that it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the Court proposes to strike the application out of its list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza Registrar President