Legal summary

June 2023

Ferrara and Others v. Italy (dec.) - 2394/22, 16898/22, 17964/22 et al.

Decision 16.5.2023 [Section I]

Article 35

Article 35-3-a

Abuse of the right of application

Unjustified fragmentation of domestic enforcement proceedings of “Pinto” decisions and judgments, multiplying awards of legal fees to lawyer applicants and extending length of proceedings: inadmissible

Facts – The present applications arose from several sets of main proceedings which led to subsequent sets of length-of-proceedings cases under Law no. 89 of 2001 (“the Pinto Act”). Afterwards, proceedings were brought seeking the enforcement of the “Pinto” decisions or judgments, which in turn led to the granting of assignment orders - a type of enforcement order which a person who has been awarded a sum of money by judicial decision can request from the enforcement judge when a debtor does not spontaneously fulfil his or her duty to pay. In those assignment orders, the domestic courts directly awarded legal fees to the three lawyer applicants, as they were avvocati antistatari (lawyers who advanced legal fees for their clients and were directly awarded repayment by the courts) in the enforcement proceedings. The applicants complained under Article 6 § 1 and Article 1 of Protocol No. 1 of the non-enforcement of assignment orders awarding them legal fees.

Law – Article 35 § 3 (a) (abuse of the right of application):

(a) The applicants’ conduct in the domestic proceedings –

The applicants had repeatedly used two different schemes fragmenting the enforcement proceedings before the domestic courts of “Pinto” decisions or judgments.

The first scheme had entailed seeking the issuance of separate assignment orders depending on the number of individuals in whose favour the “Pinto” decision had been issued. The first and the second applicant had filed separate requests for such orders in respect of multiple individuals. They had represented one or more plaintiffs in the “Pinto” and in the enforcement proceedings. Further, in at least thirty-nine cases the first applicant had requested the issuance of two separate assignment orders in each case – one in his own favour as avvocato antistatario and one in the interest of his client – although it appeared that he had been aware that a request for one order had been sufficient.

The second scheme had entailed seeking the issuance of separate assignment orders depending on the number of sums awarded to the same creditor in a “Pinto” judgment. The second and third applicants, respectively as avvocato antistatario of plaintiffs in “Pinto” proceedings and as avvocato antistatario for the second applicant in the enforcement proceedings, had fragmented the enforcement proceedings in respect of Court of Cassation judgments even though those judgments had awarded only one creditor (i.e., the second applicant) two sums in legal fees to be paid by the same debtor.

When using either scheme, the requests for the issuance of assignment orders aimed at enforcing the same decisions and judgments had been filed at the same time.

The unnecessary fragmentation of enforcement proceedings increased the number of sets of proceedings, negatively affecting the organisation and the workload of domestic courts and inevitably extending the length of proceedings. Furthermore, it increased the costs of proceedings by multiplying awards of legal fees. In the absence of an explanation by the applicants why the fragmentation of such proceedings might have been necessary in the interests of the proper course of the proceedings or otherwise, the Court found that the applicants’ extensive recourse to separate parallel enforcement proceedings had not been grounded on any objective reason, other than to spuriously multiply awards of legal fees.

Moreover, domestic case-law clearly stated that the fragmentation of a claim also amounted to an abuse in cases involving a multitude of creditors, and irrespective of the kind of proceedings. Indeed, the domestic authorities had found that fragmentation of proceedings had been an abuse of procedure in respect of the first and second applicants.

Having examined the circumstances of the cases at hand, the Court found that the fragmentation of enforcement proceedings by requesting the delivery of separate assignment orders could not be seen as an efficient enforcement of the “Pinto” decisions and judgments and had not been justified by the need to protect the interests of the applicants’ clients or any of the rights set forth in the Convention or the Protocols thereto.

Bearing in mind all the above, the Court found that the applicants had misused domestic proceedings, which were a primary means of protecting human rights.

(b) The applicants’ conduct in the proceedings before the Court –

As to the conduct of the second and third applicants, the Court noted that those applicants had, at the same time and in their own interests, lodged separate identical applications based on the same facts complaining before the Court of the non‑enforcement of assignment orders aimed at enforcing the same “Pinto” decision or judgment. Not only had they failed to join the complaints regarding those orders in one application, but they had not even informed the Court of the existence of a link between the applications. They had also requested in each application a just satisfaction award for non-pecuniary damage and costs, including legal fees. Moreover, the second applicant had appointed the third applicant as avvocato antistatario in the enforcement proceedings with the purpose of requesting the issuance of assignment orders, which had doubled the number of individuals entitled to lodge applications before the Court. There had been no objectively justified reason for that.

Accordingly, both those applicants, employing the same technique as before the national courts and perpetuating before the Court their conduct at the national level, had unnecessarily lodged separate applications, spuriously and deliberately multiplying their requests for awards of just satisfaction, including costs, legal fees and expenses. That had been against the background of the Court’s caseload and the fact that a large number of applications raising serious human rights issues were currently pending. Such conduct demonstrated disregard for the Court’s relevant rules of procedure and a failure to display the required level of prudence and meaningful cooperation with the Court. Referring to Article 19 of the Convention, the Court noted that dealing with manifestly abusive conduct by applicants or their authorised representatives, which created unnecessary work for the Court, was incompatible with its proper functions under the Convention.

As to the first applicant’s conduct, the Court observed that he had lodged one application complaining of the non-enforcement of several assignment orders and had thus requested the Court to award him just satisfaction, legal fees and expenses only once. In the absence of an explanation on his part as to why the fragmentation of enforcement proceedings had been necessary in the domestic proceedings, the Court took the view that his application had been merely instrumental to the enforcement of assignment orders stemming from the multiplication of sets of domestic proceedings while, at the same time, he had sought an award of just satisfaction with respect to conduct that had been deemed an abuse of procedure in the domestic case-law. He had thus, similarly to the other applicants, aimed to take advantage of the system of protection of human rights under the Convention by asking the Court to find a violation of his rights that had stemmed from his own abusive conduct at the domestic level.

Lawyers had to show a high level of professional prudence and meaningful cooperation with the Court by refraining from bringing unmeritorious complaints and, once proceedings before the Court had been instituted, by abiding by all the relevant rules of procedure and professional ethics. Otherwise, an abusive or negligent application undermined the credibility of lawyers’ work in the eyes of the Court and, if done systematically, might even result in their being excluded from the proceedings (Rule 36 § 4 (c) and Rule 44D of the Rules of Court).

(c) Overall conclusion – The applicants had intentionally abused their right of individual petition. Their conduct had been manifestly contrary to the purpose of the right of individual application as provided for in the Convention and had impeded the proper functioning of the safeguard mechanisms established thereby.

Conclusion : inadmissible.

(See also Bekauri v. Georgia (preliminary objection), 14102/02, 10 April 2012, Legal Summary ; De Cristofaro v. Italy (dec.), 30464/07 et al., 10 July 2012; Miroļubovs and Others v. Latvia , 798/05, 15 September 2009, Legal Summary )

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

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