Information Note on the Court’s case-law 84

March 2006

Albanese v. Italy - 77924/01

Judgment 23.3.2006 [Section III]

Article 3 of Protocol No. 1

Vote

Suspension of a bankrupt’s electoral rights, attached automatically to the bankruptcy order: violation

Article 8

Article 8-1

Respect for private life

Personal disqualifications imposed on a bankrupt and attached automatically to the bankruptcy order: viola tion

Article 13

Effective remedy

Lack of effective remedy as regards personal disqualifications imposed on a bankrupt and attached automatically to the bankruptcy order: violation

Facts : In a judgment deposited with the registry on 26 June 1998, the applicant and the three companies in which he had been a partner were declared bankrupt; as a result, the applicant’s name was entered in the bankruptcy register. The complex bankruptcy proce edings which followed lasted until 25 October 2004, when the judge terminated the proceedings for final distribution of the assets.

Under the Italian legislation as it stood at the material time a declaration of personal bankruptcy entailed certain consequ ences for the person concerned, in particular the handing-over of all the person’s correspondence to the trustee in bankruptcy, a prohibition on leaving his or her place of residence without authorisation from the insolvency judge and suspension of the exe rcise of his or her electoral rights for the duration of the bankruptcy proceedings, subject to a limit of five years from the date of the bankruptcy order. The applicant could obtain discharge under certain conditions, in particular by providing proof of effective and consistent good conduct for at least five years following termination of the bankruptcy proceedings.

Law : Article 8 of the Convention (respect for correspondence), Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No. 4 (freedom of movement): Possible violations of these provisions were linked to the length of the proceedings, of which they were an indirect consequence. According to the Court’s settled case-law, actions based on the Pinto Act constituted a remedy o f which applicants should avail themselves under Article 35(1) of the Convention. The applicant would therefore have had an effective remedy if he had applied to the relevant appellate court under the Pinto Act in order to complain of the disqualifications arising out of his bankruptcy, on account of the length of the bankruptcy proceedings in particular: Inadmissible for failure to exhaust domestic remedies.

Article 3 of Protocol No. 1: This complaint was not manifestly ill-founded and was not inadmissible on any other grounds. It therefore had to be declared admissible.

With regard to the merits, the suspension of the bankrupt person’s electoral rights for the duration of the bankruptcy proceedings constituted clear interference with the exercise of his or her rights under Article 3 of Protocol No. 1. Such interference wa s prescribed by law. As to its aim, the Court pointed out that bankruptcy proceedings came within the ambit of civil rather than criminal law and therefore did not imply any deceit or fraud on the part of the bankrupt person. The aim of the restrictions on the person’s electoral rights was therefore essentially punitive. Hence, the measure served no purpose other than to belittle persons who had been declared bankrupt, reprimanding them simply for having been declared insolvent irrespective of whether they had committed an offence. It did not therefore pursue a legitimate aim for the purposes of Article 3 of Protocol No. 1.

Conclusion : violation (unanimously).

Article 8 (private life): This complaint was not manifestly ill-founded and was not inadmissible on any other grounds. It therefore had to be declared admissible.

As to the applicability of Article 8, the concept of “private life” encompassed the right of the individual to establish and develop relationships with other human beings, including in the pro fessional and commercial sphere. In the instant case the entry of the applicant’s name in the bankruptcy register entailed a series of personal disqualifications prescribed by law which undeniably fell within the scope of his “private life”, given that the y affected his ability to develop relationships with the outside world.

As to compatibility of the measures with Article 8, the disqualifications arising out of the applicant’s bankruptcy quite clearly constituted interference with his right to respect for his private life; that interference was in accordance with the law and pursued the legitimate aim of protecting the rights of others. As to whether it had been necessary, the Court observed that the disqualifications were not the result of a judicial deci sion but were the automatic consequence of entry in the bankruptcy register, and did not cease until such time as the person’s name was removed from the register. Removal from the register resulted from discharge, for which the bankrupt person could apply if he or she had shown proof of “effective and consistent good conduct” for at least five years after termination of the proceedings. The removal of restrictions on the bankrupt person therefore depended on an essentially moral judgment as to his or her wo rthiness. In view of the fact that entry in the bankruptcy register was automatic and that implementation of the resulting disqualifications was not examined or reviewed by the courts, and given the length of time before discharge could be obtained, the in terference with the applicant’s right to respect for his private life had not been “necessary in a democratic society” within the meaning of Article 8(2).

Conclusion : violation (unanimously).

Article 13: This provision required an effective domestic remedy to be available whereby the relevant national authority could hear an arguable complaint under the Convention and provide appropriate relief. In the instant case the part of the complaint relating to the personal disqualifications imposed on the applicant was not manifestly ill-founded and was not inadmissible on any other grounds. It therefore had to be declared admissible.

The applicant was therefore entitled to an effective domestic remedy within the meaning of Article 13. In the Court’s view, none of t he remedies provided for by the bankruptcy legislation was such as to enable the applicant to complain of the existence or extension of the disqualifications arising out of his bankruptcy.

Conclusion : violation (unanimously).

The Court rejected the applica nt’s claim in respect of pecuniary damage and considered that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage. It made an award on an equitable basis for costs and expenses.

© Council of Europe/Europe an Court of Human Rights This summary by the Registry does not bind the Court.

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