MANISCALCO v. ITALY
Inadmissible
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
1. The applicant, Mrs Maria Carmela Maniscalco, is an Italian national, who was born in 1952 and lives in Reggio Emilia. She was represented before the Court by Mr L. Golino, a lawyer practising in Rome. 2. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, and their Co-agent Mr G. Mauro Pellegrini. 3. The facts of the case are disputed by the parties and may be summarised as follows on the basis of the information available to the Court, without prejudice to the merits of the case. 4. The applicant worked as a director in a subsidiary company of UNICREDIT Bank, until the date she resigned pending disciplinary proceedings brought against her following claims made by the bank in respect of misappropriation of funds by her. The bank also instituted proceedings against the applicant claiming damages and requested precautionary measures (namely, a conservatory seizure - to be distinguished from a precautionary seizure for the purposes of Italian legislation), particularly in connection with transfers to a certain Mr S. 5. Following her resignation the applicant was owed (by UNICREDIT bank) work-related credits including, amongst other things, salary arrears and TFR (spettanza di fine rapporto), a lump sum awarded in compensation at the end of an employment relationship. 6. On 9 October 2009, upon an ex parte request of the bank, the labour judge within the Bologna tribunal (Il Giudice del Lavoro), considered that there existed both a “presumption of sufficient legal basis” (fumus boni iuris) and a “danger in delay” (periculum in mora): the applicant having resigned from her work, could easily dispose of or hide her possessions. It therefore ordered the conservatory seizure (sequestro conservativo) of the applicant’s assets up to a value of EUR 5 million (amounting to the damage claimed by the bank), which reflected any prejudice in connection with transfers made to Mr S. The court fixed a date to hear the parties, namely 23 October 2009, and fixed the deadline for notification of the order at 16 October 2009 (notification occurred on 15 October 2009). 7. According to the enforcement act of the conservatory seizure, dated 15 October 2009, the judicial officer executing the order attached, “within the limits of the law, the sums owed by Unicredit to Mrs Maniscalco, under any title including those connected with the termination of her employment, as well as any deposits, shares, obligations or investment funds, that is any movables up to the amount in respect of which she appears to be a debtor, that is EUR 5 million.” 8. On 23 October 2009 the applicant challenged the labour judge’s decision of 9 October 2009. However, the order was confirmed on 9 December 2009. The court considered in detail the results obtained from the investigation to that date, namely that most suspicious dealings (transfer of funds) had been signed by the applicant. Nevertheless, the court noted that the applicant had not transferred any funds to herself, but to third parties, particularly Mr S. It considered that the bank’s contention that such funds had been transferred on the applicant’s own initiative was ill-founded. Nevertheless, it was clear that the applicant had misappropriated funds contrary to internal bank rules, abusing her power as director of the bank branch. It followed that there was a real risk that the bank would lose such money, and therefore the requisite of fumus boni iuris persisted together with that of periculum in mora. 9. The court also considered that it could not accept the applicant’s request to hear Mr S. (whose relation with the applicant was also of relevance, but that was not a matter to be assessed at that stage). It considered that although Mr S. was the beneficiary of the misappropriated funds, he had an interest in being a party to the proceedings, but he had not been summoned to intervene by any of the parties. Under Italian law a person who has an interest in being a party to the proceedings cannot be heard as a witness. 10. The applicant further challenged the measure on 22 December 2009, asking the court, inter alia, to revoke the conservatory seizure order, in so far as the requisites under Article 671 of the Code of Civil Procedure [COCP] had not been fulfilled, and in the absence of such revocation to limit the conservatory seizure order, in respect of her TFR to the amounts which might be attached according to Article 545 of the COCP. 11. After having heard the parties at a hearing on 10 February 2010, the labour court dismissed the applicant’s challenge by a decision of 19 February 2010 filed in the relevant registry on 24 February 2010. It noted that the applicant had failed to disprove the findings referring to her involvement. Neither did the court accept her contention that only 20% of her TFR could be attached. It rejected the applicant’s argument that in view of Article 545 of the COCP and Article 1246 of the Civil Code (“CC”), it was not possible to attach more than a fifth of her TFR, in the context of the legal relationship between the employer and the employee. The court held that it was so possible in accordance with constant case-law arising from a number of judgments (inter pluribus, the following Court of Cassation judgments: nos. 6214/2004; 9904/2003; 3564/1999; 6387/1997; 6033/1997; 12905/19954873/1995; 10447/1991; 1245/1987), and it had not been disproved by the one, one-off, case cited by the applicant (judgment of the Court of Cassation no. 10629/2006), which was more recent. 12. The attachment of her assets remained in place. 13. On 29 July 2010 the Brescia Tribunal (competent for the enforcement proceedings in the case) upheld the applicant’s plea concerning the limitations on the attachment of her pension fund. The court noted that the fund had been funded partly through voluntary contributions by the employee of part of her salaries (which had to be considered as a voluntary transfer), partly through the TFR, and partly through the obligatory contributions of the employer. Thus, the part of the fund which referred to the sums voluntarily transferred by the applicant could be attached in its entirety but the other two parts which were made up of salaries and pension contributions could only be attached up to a limit of 20%. In practice, this decision unblocked some of the fund and reduced the attachment of the applicant’s pension fund to the global amount of approximately EUR 20,000. 14. This decision was notified on 3 September 2010 and on 8 September 2010 the applicant requested the liquidation of the relevant amount. Such funds were only released six months later, namely on 8 March 2011. 15. In the meantime the labour judge within the Bologna tribunal in the main proceedings had requested the parties to go through mediation with the aim of reaching a settlement. The latter not having been successful, the proceedings were continued and the rest of the assets remained attached. 16. On 13 June 2013 the labour judge within the Bologna tribunal issued a first-instance judgment on the merits of the case, which was filed in the registry on 15 October 2013. It found that the applicant had not been responsible for any misconduct in the transfer of funds to Mr S. Thus, the precautionary interim measure connected with this matter had no longer any useful effect. It further found both the applicant and the bank responsible for damage caused in connection with other matters and ordered the applicant to pay half of the damage incurred, namely EUR 1,626,429. 17. Pending the appeal proceedings, the applicant proceeded to donate part of her immovable property to her children. In June 2014 UNICREDIT bank lodged an application before the domestic court challenging such a donation. 18. The applicant claimed that following the interim measure of 9 October 2009 all her assets were attached. However, no documentation has been submitted to this Court specifying which movable and/or immovable assets had in fact been attached. From vague documentation, namely a mortgage history search on the basis of names (ispezione ipotecaria per dati anagrafici) issued by the land registry, it would appear that an unspecified apartment registered in the applicant’s name was affected by the order of 9 October 2009. The application to the courts lodged by UNICREDIT bank, dated June 2014 (see paragraph 17 above), also makes reference to an enforcement act of the conservatory seizure of 14 October 2009 by which three immovable properties co-owned by the applicant were attached – however, the original enforcement act has not been provided. 19. The Government contested the applicant’s allegations, claiming that she had not substantiated that all her assets had been frozen. According to the Government it was not for them to prove what had not been attached. They conceded, however, that on the basis of the enforcement of the order of 9 October 2009 approximately EUR 75,000 consisting of the applicant’s pension fund had originally been attached. Despite certain documentation, the Government appeared to doubt whether an apartment, where the applicant lived with her family, and of which she owned 50%, had been attached. Even if that were so, the apartment at issue was subject to a mortgage in connection with a loan and thus could in any case not be sold. 20. The relevant articles of the COCP, in so far as relevant, read as follows: “Sums such as salaries, allowances or benefits, including termination of employment sums (TFR), owed by private individuals to their employees, may be seized to the extent allowed by a tribunal or judge. Only one fifth of such sums may be seized for the purposes of taxes owed to the state, province or commune, and in the same measure for any other credit. Seizure in respect of more than one of the abovementioned purposes jointly cannot exceed half the mentioned sums. Without prejudice to any other limitation expressly provided for in specialized legal provisions.” “Once seized the debtor becomes the custodian of the items seized as well as any accessories [...]” “Having heard the parties and omitting any formality which is not essential for an adversarial procedure, the judge proceeds to examine the requirements necessary for the purposes of the requested measure, before accepting or rejecting the request by means of an order. If notification to the defendant may prejudice the coming to be of the measure, the judge may proceed by means of a reasoned decision or if necessary summary reasons. In such a case, by means of the same decision the judge shall fix a date to hear the parties, not later than fifteen days later, and award the applicant a peremptory time period of a maximum of eight days within which to carry out the notification of the application and the decision. At the hearing the judge may, by means of an order, confirm, modify or revoke the measures ordered in the decision.” “On the request of the creditor who has a well-founded fear of losing any guarantee over his claim, the judge may authorise a conservatory seizure of movable or immovable property belonging to the debtor, or of any sums due to the creditor, within the limits allowed by the law for such seizures.” “A conservatory seizure over immovable property is enforced by registering the measure ordered at the relevant land registry (l’ufficio del conservatore dei registri immobiliari del luogo in cui i beni sono situati). Article 559 applies in respect of the custody of the immovable property.” 21. Article 1246 of the Civil Code provides for exceptions to what assets can be set-off, and includes under sub-article 3 “assets which cannot be seized”. 22. Other relevant articles of the CC read as follows: “A creditor may request a conservatory seizure over the debtor’s assets in accordance with the rules of the code of civil procedure. Such a seizure may also be requested in respect of a third party acquirer of the debtor’s assets, in so far as an appropriate action to declare the ineffectiveness of the transfer has been lodged.” “Transfers or any other acts concerning the affected assets may not prejudice the creditor requesting the measure, as provided in the rules for seizure (pignoramento).”