issued by the Registrar of the Court

ECHR 270 (2013)

24.09.2013

The Italian authorities should have enabled the creditors

of an insolvent local authority to recover the money owed to them in full

In today’s Chamber judgments in the cases of De Luca v. Italy (application no. 43870/04) and

Pennino v. Italy (application no. 43892/04), which are not final¹, the European Court of Human

Rights held, unanimously, that there had been:

a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on

Human Rights, and

a violation of Article 6 § 1 (right of access to a court) of the Convention.

The two cases concerned the impossibility for the applicants to have a final judgment enforced in

order to recover money owed to them by a municipal authority which had become insolvent.

The Court rejected the Government’s argument that the exceptional circumstance of the

municipality’s insolvency justified the fact that it had not been possible to honour the debts in full.

As a State body a local authority could not use financial difficulties as an excuse not to honour its

obligations as acknowledged by a final judgment. Furthermore, considering that the applicants had

not been able to have the final judgment enforced since it was delivered in 2003, the Court found

that they had been deprived of their right of access to a court for an excessive length of time.

Principal facts

The applicants, Giovanni De Luca and Ciro Pennino, are Italian nationals who were born in 1927 and

1935 respectively and live in Benevento (Italy). In December 1993 the municipality of Benevento

declared itself insolvent in conformity with a legislative decree passed in 1989. A month later an

extraordinary liquidation committee (the OSL) was entrusted with the management of its finances.

Due to amendments made to the 1989 decree by another legislative decree in 2000, no enforcement

proceedings could be brought in respect of the debts on the list drawn up by the OSL. Nor, at the

time in question, could the insolvent local authority be required to pay statutory interest on its debts

or compensation to offset inflation. A law passed in 2004 extended this rule to claims which, like

those of Mr De Luca and Mr Pennino, had been acknowledged by a judicial decision subsequent to

the declaration of insolvency.

In the meantime, in 1992 and 1987 respectively, Mr De Luca and Mr Pennino had brought claims for

damages against the municipality. In July 2002 and November 2003 the municipality was ordered to

pay them damages in the approximate amount of 17,000 and 6,000 euros respectively. In June 2005,

having deliberated, the OSL acknowledged that the municipality owed Mr De Luca approximately

40,000 euros and Mr Pennino approximately 24 000 euros. In July 2003 Mr Pennino sought the

attachment of property belonging to the municipality of Benevento, but the municipality objected.

He then brought proceedings to enforce the judgment of 2002 but his case was declared

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

inadmissible in 2004. In 2006 the OSL offered the applicants a friendly settlement in the amount of

80 % the sums owed. Both applicants declined the offer.

Complaints, procedure and composition of the Court

Relying on Article 1 of Protocol No. 1 (protection of property), Mr De Luca and Mr Pennino

complained that it had been impossible for them to secure the enforcement of judgments ordering

the municipality to pay them damages. Under Articles 6 § 1 (right of access to a court) and 13 (right

to an effective remedy), they also complained that there had been no remedy by which they could

have had the judgments concerned enforced. Lastly, they complained that the management of the

bankrupt municipality’s finances had been entrusted to an administrative body and that they had

had no means of requesting any oversight of the OSL’s work and the reorganisation proceedings.

The applications were lodged with the European Court of Human Rights on 10 December 2004 in the

case of De Luca v. Italy, and on 20 November 2004 in the case of Pennino v. Italy.

Judgment was given by a Chamber of seven judges, composed as follows:

Danutė Jočienė (Lithuania), President,

Guido Raimondi (Italy),

Peer Lorenzen (Denmark),

Dragoljub Popović (Serbia),

Işıl Karakaş (Turkey),

Nebojša Vučinić (Montenegro),

Paulo Pinto de Albuquerque (Portugal),

and also Stanley Naismith, Section Registrar.

Decision of the Court

Article 1 of Protocol No. 1

The Court reiterated that a “claim” could constitute a “possession” within the meaning of Article 1 of

Protocol No. 1 if it was sufficiently established to be enforceable, which it was in this case. However,

following the declaration of insolvency of the municipality of Benevento and the entry into force of

the legislative decree of 2000 and the law of 2004, it had been impossible for Mr De Luca and

Mr Pennino to bring enforcement proceedings against the municipality, which had failed to honour

its debts, in breach of their right to the peaceful enjoyment of their possessions. Furthermore, in

failing to enforce the Benevento court’s judgment the domestic authorities had prevented the

applicants from receiving money they could reasonably have expected to receive.

In addition, even assuming that the applicants had accepted the friendly settlement offered by the

OSL, they would still have lost 20% of the sums owed to them, and been obliged to forgo statutory

interest and the sum awarded to them to offset inflation. The Court rejected the Government’s

argument that the exceptional circumstance of the municipality’s insolvency justified the fact that

the debts had not been honoured in full and that the offer to pay them 80% of the sums owed

demonstrated the authorities’ concern to guarantee that all creditors were treated equally in

recovering their debts. As a State body a local authority could not use financial difficulties as an

excuse not to honour its obligations arising from a final judgment against it.

The Court accordingly found a violation of Article 1 of Protocol No. 1.

Article 6 § 1

The Court reiterated that the right of access to a court guaranteed by Article 6 § 1 of the Convention

would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial

decision to remain inoperative to the detriment of one party, and that implementation of a

judgment must therefore be regarded as an integral part of the “trial” for the purposes of Article 6.

In the present case the restriction of the applicant’s right of access to a court following the entry into

force of the legislative decree of 2000 and the law of 2004 had pursued the legitimate aim of

ensuring equal treatment of creditors. However, the ban on enforcement proceedings against the

municipality was to remain in force until the accounts submitted by the OSL were approved, in a

procedure the length of which was fully beyond the applicants’ control. Indeed, while the

municipality had declared itself insolvent in 1993, the Court had not yet been informed that any such

accounts had been approved. Although their claim had been acknowledged by a judgment

pronounced in November 2003, Mr De Luca and Mr Pennino had thus been deprived of their right of

access to a court for an excessively long time. That being so, the interference with the applicants’

right of access to a court was disproportionate.

The Court accordingly held that there had been a violation of Article 6 § 1.

Article 13

Regard being had to its findings in respect of Article 1 of Protocol No. 1 and Article 6 § 1, the Court

considered that there was no need for it to examine whether there had been a violation of Article 13

in this case.

Just satisfaction (Article 41)

The Court held that Italy was to pay a total of EUR 50,000 to Mr De Luca and EUR 30,000 to

Mr Pennino in respect of pecuniary and non-pecuniary damage, and EUR 5,000 to each applicant for

costs and expenses.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.