CASE OF LUORDO v. ITALY
Violation of P1-1;Violation of Art. 8;Violation of Art. 6-1;Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis
9. The applicant was born in 1928 and lives in Druento (Turin). 10. In 1982 the Asti District Court made an order for the compulsory winding up of a commercial partnership formed by the applicant's wife in 1980. 11. On 16 November 1984 the same court made an order declaring the applicant personally bankrupt on the ground that he was a de facto partner. 12. On an unspecified date the trustee in bankruptcy filed a list of the bankrupt estate's debts with the registry. 13. On 21 November 1984 the judge assigned to the case gave the trustee in bankruptcy leave to intervene in proceedings that had been brought by a bank, SPT, for the forced sale of the applicant's house. 14. On 27 November 1984 he gave the trustee in bankruptcy leave to lodge tax appeals with the Tax Commissioners (Commissione Tributaria) in respect of sums claimed by the Turin and Asti tax authorities from the applicant's partnership. 15. Between 15 and 28 December 1984 the judge gave the trustee in bankruptcy permission to withdraw sums from the current account of the bankrupt estate for the payment, inter alia, of fees due to the trustee and an expert. 16. On an unspecified date in 1985 an initial attempt to sell the applicant's house at auction failed. 17. On 26 March 1985 the trustee in bankruptcy lodged a report. On 28 March 1985 the President of the District Court summoned G.Z. to appear in order to establish whether he was a partner of the applicant. G.Z. was heard on 26 April 1985. 18. On 10 June and 6 September 1985 the judge authorised the trustee in bankruptcy to make payments covering, inter alia, an expert's fees and the costs of publication of various notices. 19. On 21 January 1986 the judge gave permission for a lawyer to be instructed to act in the aforementioned proceedings concerning the applicant's house. 20. On 10 March 1986 the judge gave the applicant permission to draw his pension and on 21 March 1986 authorised the trustee in bankruptcy to settle proceedings that had been brought by S.G. for an order for the restitution of certain movables that were part of the bankrupt estate. 21. On 6 August 1986 the judge authorised the trustee in bankruptcy to enter into a loan agreement in respect of a building included in the bankrupt estate. 22. On 19 December 1986 the judge gave permission for a lawyer to be instructed to act in proceedings brought by P.C. contesting the bankrupt estate's liabilities. 23. On 23 March and 3 December 1987 the judge authorised the payment of various costs necessarily incurred in the proceedings. 24. On 16 December 1987 the trustee in bankruptcy sought an order for the replacement of the chairman of the Creditors' Committee following the latter's death. 25. On 22 December 1987 the judge refused permission for the sale by private contract (vendita a trattativa privata) of immovable property from the bankrupt estate on the ground that the Insolvency Act did not permit private sales of immovable property. 26. On 28 December 1987 the judge authorised the payment of a carer's allowance to the applicant's wife. 27. On 21 January 1988 he authorised the trustee in bankruptcy to return the deposit that had been paid on the proposed sale by private contract. 28. On 4 May 1988 the judge granted an application by O.D.S., one of the applicant's partners, for restitution of sums paid by a company, CPI, for services she had rendered. 29. On 28 June and 3 and 17 November 1988 he authorised the payment of advertising costs and taxes incurred on the sale of a building from the bankrupt estate. 30. On 8 February 1989 the judge authorised the payment of part of the fees of the lawyer acting in the proceedings brought by P.C. 31. On 3 March 1989 he authorised the payment of a tax liability and on 2 June 1989 of sums relating to the sale of the aforementioned building. 32. On 15 May 1991 he authorised the payment of the lawyer's fees incurred in the proceedings for the forced sale of the applicant's house and on 7 June 1991 the inclusion of a sum belonging to O.D.S. in the assets of the bankrupt estate. 33. On an unspecified date in September 1991 the trustee in bankruptcy intervened in tax enforcement proceedings (procedura di esecuzione esattoriale) brought by the Druento Tax Collector's Office (Esattoria) for the recovery of sums due on the sale of the applicant's house. Ultimately, the sale did not go ahead; on 13 November 1991 the judge authorised payment of the lawyer who had acted in the proceedings. 34. On 7 December 1991 the judge authorised the part payment of seniority pay (trattamento di fine rapporto) to the applicant. 35. On 28 April 1992 the judge appointed a valuer to value the applicant's assets and on 4 July 1993 authorised the payment of the costs thereby incurred. 36. On 12 May 1994 he appointed a new chairman to the Creditors' Committee at the request of the trustee in bankruptcy (who had made a like request on 16 December 1987). 37. On 10 January 1995 a further attempt was made to sell the applicant's house at auction, without success. 38. On 14 February 1995 the trustee in bankruptcy reported on the state of the proceedings at the judge's request. In particular, he said that all the assets of the bankrupt estate apart from the applicant's house had been sold. He also reserved the right to make a further proposal for the sale of the property at auction. 39. On 3 March 1995, in response to a request by the judge on 17 February 1995, the trustee in bankruptcy explained that there had been no partial distribution (ripartizione parziale) of the assets among the creditors because appeals were still pending before the Tax Commissioners. 40. As the applicant's house had been unlawfully occupied in the interim by D.L. and S.B., the judge ordered their eviction in a decision (decreto di rilascio) of 13 April 1995. On 14 April 1995 he asked the trustee in bankruptcy to produce a draft proposal for the partial distribution of the assets. 41. On 15 May 1995 the trustee in bankruptcy reported that the appeals to the Tax Commissioners had been successful and lodged a draft proposal for the partial distribution of the assets. Two days later he was authorised by the judge to transfer the current account of the bankrupt estate to another bank. 42. On 23 October 1995 the judge ruled that the draft proposal for the partial distribution of the assets could be implemented. 43. The following day D.L. moved out of the applicant's house. However, on an unspecified date S.B., who in the meantime had appealed against the judge's order of 13 April 1995, proposed to settle the dispute by undertaking to purchase the house. 44. On 14 December 1995 the trustee in bankruptcy filed a report. 45. On 6 February 1996 the judge fixed 19 April 1996 as the date for the auction of the applicant's house. 46. On an unspecified date the applicant sought a composition with the creditors. His application was declared inadmissible on 1 April 1996 on the ground that it did not satisfy the conditions laid down by section 124 of the Bankruptcy Act. 47. On 5 April 1996 the applicant asked the judge to refer to the Constitutional Court the question of the legitimacy of the system of proprietorial and personal disabilities to which bankrupts were subject and, in particular, sections 48, 49 and 50(3) of the Bankruptcy Act and Articles 350, 393, 407, 2382, 2417, 2488 and 2516 of the Civil Code. In a decision of 17 April 1996, the judge rejected that application as being manifestly ill-founded, holding that the legislature's decision to give the creditors' proprietorial interests precedence over those of the bankrupt did not entail a violation of the debtor's rights guaranteed by the Constitution. 48. In an application lodged with the registry on 17 April 1996, the applicant sought a stay of the order of 6 February 1996 for the sale of his house. 49. On 19 April 1996 the sale of the applicant's house by auction was adjourned to 21 April, when it was sold. 50. On 22 April 1996 the trustee in bankruptcy resigned. The District Court appointed a replacement the following day, who lodged a report on 11 October 1996. 51. On 3 May 1996 the applicant appealed to the Court of Cassation, with a view to having the order for the sale of his house set aside. According to information he has provided, his appeal was dismissed as being out of time. 52. On 12 December 1996 the judge appointed a valuer to carry out a valuation before title to the applicant's house was transferred to the successful bidder. The transfer was effected by a court order of 7 July 1997. 53. In a decision of 25 September 1998 the judge approved accounts that had been submitted by the trustee in bankruptcy. 54. On 5 October 1998 he authorised payment of the trustee in bankruptcy's fees. 55. On 23 March 1999 he approved the final proposal for the distribution of the assets, noting that the applicant had sufficient means after the sale of his house to honour his debts and bring the bankruptcy to an end. 56. On 17 July 1999 the judge terminated the bankruptcy. 57. The relevant provisions of the Bankruptcy Act (Royal Decree no. 267 of 16 March 1942) read as follows: “The bankruptcy order divests the bankrupt of the rights to administer or to deal with assets that were in existence at the date of the said order. ...” “Legal proceedings concerning disputes over property issues arising in respect of assets forming part of the bankrupt estate shall be taken or defended by the trustee in bankruptcy. The bankrupt shall only be entitled to intervene in the proceedings in so far as they concern an allegation of criminal bankruptcy on his part or if permitted by law.” “Correspondence addressed to the bankrupt must be passed to the trustee in bankruptcy, who shall be empowered to retain correspondence concerning property interests. The bankrupt may consult the correspondence. The trustee in bankruptcy shall keep the content of correspondence not relating to such interests confidential.” “The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, the trustee in bankruptcy and the creditors' committee when summoned unless he is prevented from doing so on legitimate grounds and has been given leave by the judge to send a representative. If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police.” “A public register of the names of bankrupts shall be held at the registry of each district court. Names shall be deleted from the register by order of the district court. Bankrupts shall be subject to the disabilities laid down by law until such time as their name has been deleted from the register.” “The bankrupt's property shall be administered by the trustee in bankruptcy from the moment it is recorded in the inventory of such assets drawn up by the trustee in bankruptcy ...” 58. The relevant provisions of the Civil Code are worded as follows: “The following may not be appointed as guardians or, if already appointed, must cease to act in that capacity: ... a bankrupt whose name has not been deleted from the bankruptcy register.” 59. Article 393 essentially prevents disqualified bankrupts from acting as trustees in bankruptcy until their names have been deleted from the bankruptcy register. 60. Articles 2382, 2399, 2417 and 2516 of the Civil Code prohibit a bankrupt from being appointed as a director or trustee in bankruptcy of a commercial or cooperative company or as a representative of the debenture holders in a public company. 61. Article 2 of Presidential Decree no. 223 of 20 March 1967, as amended by Law no. 15 of 16 January 1992, essentially provides for the suspension of the bankrupt's electoral rights for the duration of the bankruptcy proceedings and, in any event, for a period not exceeding five years from the date of the bankruptcy order.