The ECHR judgment of 11 January 2018 in the case of Cipoletta v. Italy (application No. 38259/09).
In 2009, the applicant was assisted in the preparation of the application. The application was subsequently communicated in Italy.
In the case, the applicant's complaint on the existence of a dispute (objection) within the administrative liquidation procedure of a legal entity was successfully considered from the moment when the creditor demands to include his claims to the company-bankrupt in the list of creditors. The case involved a violation of the requirements of article 6, paragraph 1, and article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was the head of the company. He claimed that he was a creditor of another company with state capital participation, against which a procedure of compulsory "administrative liquidation" (a special domestic procedure different from bankruptcy <1>) was started under the leadership of the liquidator. See, for example, the Act of Italy of March 16, 1942, No. 267, "Rules of bankruptcy procedure, procedure for preventive claims, administrative procedure for bankruptcy" (Disciplina del Fallimento, del concordato preventive, dell'amministrazione controllata e della liquidazione coatta amministrativa).
In June 1985, the liquidator informed the applicant about the commencement of the liquidation procedure and drawing up a list of the company's debts. Since the applicant's claim was not registered, in July 1985 he sent the liquidator a request to include him in the list of creditors. In August 1985, the liquidator compiled a list of the company's debt obligations, not including the applicant's claims. In September 1986 the applicant filed objections to the said list.
By a decision of April 1997, the tribunal, having established that the applicant and the liquidator had signed an agreement on the applicant's claims to the company being liquidated, supported the applicant's objection and accordingly changed the list of creditors.
In December 2010, the administrative liquidation of the company in question was still ongoing.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. (a) Admissibility of the complaint. In the present case, the Court had to decide on the applicability of the provisions of Article 6 of the Convention to the procedure of "administrative liquidation".
The Court considered it necessary to apply a new approach to streamline its case-law on guarantees to creditors, regardless of whether they are provided in the normal bankruptcy procedure or a special procedure for "administrative liquidation", and thus regardless of the legal status of the debtor.
The Court noted that, apart from any difference in the domestic classification between ordinary bankruptcy and "administrative liquidation", the creditors referred to the recovery of their debts from a third party that had to confirm the existence of a debt and make payments from their assets.
With regard to the bankruptcy procedure in general, the Court has always indicated that the dispute exists from the moment the creditor lodges a complaint.
With regard to the procedure for "administrative liquidation", the Court noted that the creditor could request that its claims be included in the list of debts of the liquidated company from the time the liquidator first notified of the verification of the debts of the company subject to liquidation.
Analyzing the specific consequences of this measure in the context of the procedure under consideration, the Court concludes that this genuine dispute about civil law arises from the moment the application is lodged by the creditor. In the present case, the claim was based on a bill of exchange. Accordingly, Article 6 § 1 of the Convention is applicable to the present case.
(b) Merits. While recognizing the complexity of the bankruptcy procedure, the Court considers that the total length of the procedure in question, approximately 25 years and six months, was excessive and did not meet the "reasonable time" requirement of Article 6 § 1 of the Convention.
In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted by six votes "for" at one - "against").
The Court also found that there had been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy by which the applicant could appeal against the lack of consideration of his case within a reasonable time (six votes in favor ).
In application of Article 41 of the Convention, the Court awarded the applicant EUR 24,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.