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European Court of Human Rights (First Section) – Judgment 11 January 2018 – Cipolletta v. Italy – Violation of Art. 6 (1) of the Convention – Excessive length (25 years) of “administrative liquidation” – Violation of Art. 13 – Lack of effective remedy under domestic law entailed breach of creditor’s rights

On 11 January 2018 the ECtHR issued a decision in the case Cipolletta v. Italy (application no. 38259/09), concluding that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights, and a violation of Article 13 (right to an effective remedy).

The Facts of the Case

The applicant, Aldo Cipolletta, is an Italian national who was born in 1928 and lives in Recanati (Italy). On 30 April 1985 the Macerata District Court declared insolvent a cooperative housing company of which Mr Cipolletta claimed to be a creditor. The company was placed in “administrative liquidation” under the management of a liquidator. In September 1986 Mr Cipolletta objected to the list of claims on the ground that his was not included. In a judgment of 17 April 1997, the Macerata District Court found that Mr Cipolletta and the liquidator had signed an agreement recognising the
existence of a claim of approximately EUR 129,114 and had amended the list of claims accordingly.

According to the information provided to the Court by Mr Cipolletta on 24 December 2010, the liquidation procedure was still pending on that date. Mr Cipolletta did not initiate a “Pinto procedure” on the ground that the Court of Cassation would have considered the so-called “Pinto Act” (Law enacted in 2001 introducing a remedy before the Italian courts to complain of excessively lengthy proceedings, for the purposes of
the Convention) inapplicable to “administrative liquidation” proceedings.

Relying on Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination), Mr Cipolletta alleged that the length of the “administrative liquidation” proceedings was in breach of the “reasonable time” principle. He also complained that the remedy under the “Pinto Act” was ineffective.

Decision of the Court

The Court noted that, beyond any difference in domestic classification between the ordinary insolvency procedure and “administrative liquidation”, as to the latter 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. The Court thus found that Article 6 § 1 was applicable in the present case, as a genuine and serious dispute as to a civil right would arise from the time when that application was filed by the creditor. The Court observed that, while the proceedings had admittedly been complex, involving in particular the review of the insolvent company’s activity and the processing and payment of each claim, the duration of over 25 years in the present case was not justified and did not meet the “reasonable time” requirement. The Court therefore concluded that there had been a violation of Article 6 § 1.

The Court also observed that, according to well-established domestic case law, the possibility of using the “Pinto” remedy was limited to the mere challenging of the insolvency declaration or opposition to the list of claims, thus excluding the proceedings conducted by the liquidator. For the purposes of exhausting domestic remedies, Mr Cipolletta was not therefore required to use the remedy available under the “Pinto Act”, which did not apply in the present case. The Court therefore found that there had been a violation of Article 13 on account of the lack of a remedy in domestic law by which Mr Cipolletta could assert his right to have his case heard within a reasonable time as guaranteed by Article 6 § 1.

Full text decision

Updated: January 14, 2018 — 12:43 pm

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