Information Note on the Court’s case-law 214

January 2018

Cipolletta v. Italy - 38259/09

Judgment 11.1.2018 [Section I]

Article 6

Administrative proceedings

Article 6-1

Civil rights and obligations

Dispute

Reasonable time

Existence of dispute ( contestation ) in administrative liquidation proceedings from moment creditor requests inclusion of his claim on list of creditors: Article 6 applicable

Facts – The appli cant ran a business and claimed to be the creditor of a State-regulated company which was placed in “administrative liquidation” (a specific domestic procedure) under the administration of a liquidator.

In June 1985 the liquidator informed the applicant ab out the opening of the procedure and the verification of claims against the company. As the applicant’s claim had not been registered, in July 1985 he sent the liquidator a request to be listed as a creditor. In August 1985 the liquidator filed the list of claims, still without that of the applicant. In September 1986 the applicant lodged an objection to the list of claims.

In a judgment of April 1997 the District Court, having found that the applicant and the liquidator had signed an agreement recognising the existence of a claim, upheld the applicant’s objection and amended the list of claims accordingly.

In December 2010 t he liquidation procedure was still pending.

Law – Article 6 § 1

(a) Applicability – In the present case the Court had to adjudicate on the applicability of Article 6 of the Convention to the “administrative liquidation” procedure.

The Court saw fit to adopt a new approach, in order to harmonise its case-law as to the guarantees secured to creditors, whether in the context of an ordinary insolvency procedure or in that of the special procedure of “administrative liquidation”, and thu s regardless of the nature of the debtor.

The Court thus noted that, beyond any difference in domestic classification between the ordinary insolvency procedure and “administrative liquidation”, the creditors in both cases relied for the recovery of their d ebts on a third party who would verify the existence of the claims and make payments against the assets.

As regards insolvency procedures in general, the Court had always held that there was a dispute from the point where the creditor filed a claim.

As t o the “administrative liquidation” procedure, the Court noted that it was from the first notice by the liquidator concerning the verification of the insolvent company’s debts that a creditor could apply for a claim to be added to the list.

Looking at the actual impact of this step in the context of the impugned procedure, the Court took the view that a genuine and serious dispute as to a civil right would thus arise from the time when that application was filed by the creditor. In the present case, the cla im had been based on a bill of exchange. Article 6 § 1 was therefore applicable.

(b) Merits – While acknowledging the complexity of insolvency procedures, the length of the procedure in question, about twenty-five years and six months, had been excessive and did not meet the “reasonable time” requirement under Article 6 § 1 of the Convention.

Conclusion : violation (six votes to one).

The Court also found, by six votes to one, that there had been a violation of Article 13 on account of the lack of a domesti c remedy by which the applicant could have complained about the failure to have his case heard within a reasonable time.

Article 41: EUR 24,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also F.L. v. Italy , 25639/94 , Commission decision of 12 April 1996; and Gorou v. Greece (no. 2) [GC], 12686/03, 20 March 2009, Information Note 117 )

© Council of E urope/European Court of Human Rights This summary by the Registry does not bind the Court.

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