CASE OF CETERONI v. ITALY
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 8;Not necessary to examine P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo
8. On 2 April 1982 the District Court of Fermo (Ascoli Piceno) made an insolvency order in respect of the company set up by Mr Umberto Ceteroni and his parents and also declared them personally bankrupt. 9. On 8 and 15 June 1983 respectively Mr A. and the L.M. company, claiming to be creditors of the bankrupts, instituted separate proceedings before the Fermo bankruptcy judge (giudice delegato) contesting the statement of liabilities drawn up with a view to settling the company's debts. The judge set down hearings to enter appearances on 26 October and 9 November 1983 respectively. On the latter date the liquidator applied to the judge for leave to join the second proceedings. His application was allowed on 3 February 1987. 10. The preparatory phases of the two cases continued until 15 and 29 October 1990. During the intervening period fifteen hearings were held in one case and sixteen in the other; they were almost all adjourned at the request of the parties or by the judge of his own motion. 11. On a date that has not been specified the two sets of proceedings were stayed sine die because the judge had been transferred to another post. Proceedings were reopened on 25 March and 7 February 1994. 12. On 30 May 1994 the Fermo District Court struck the first case out of its list because the parties had failed to appear. According to information supplied by the applicants' lawyer, the plaintiff had decided not to pursue his case. As regards the second case, on 21 February 1994 the parties communicated their final submissions and the judge set down the trial hearing for 11 March 1994, on which date the Fermo District Court allowed the L.M. company's application. The text of the judgment was deposited at the registry on 7 April 1994. II. Relevant domestic law 13. The relevant provisions of Royal Decree no. 267 of 16 March 1942 read as follows: Section 26 "An appeal shall lie against the decisions of the bankruptcy judge ... to the district court within three days of their adoption, and may be lodged by the liquidator, by the bankrupt, by the creditors' committee or by any other person with an interest. The district court shall deliberate in private session and give a reasoned decision. The appeal shall not have suspensive effect in relation to the impugned decision." Section 36 "An appeal shall lie against measures taken by the liquidator. Such appeals may be lodged by the bankrupt, or any other person with an interest, with the bankruptcy judge, who shall give a reasoned decision. An appeal against that decision must be lodged within three days with the district court. That court shall give a reasoned decision after hearing the liquidator and the appellant." Section 48 "Correspondence addressed to the bankrupt must be passed to the liquidator, who shall be empowered to retain correspondence concerning property interests. The liquidator has a duty of confidentiality as regards the content of the correspondence that does not relate to such interests." Section 49 "The bankrupt may not leave his place of residence without the authorisation of the bankruptcy judge and must report to that judge, to the liquidator and to the creditors' committee each time that he is duly summoned, except where he is unable to appear on legitimate grounds and the judge gives him leave to send a representative. If the bankrupt fails to comply with a summons, the judge may order that he be brought by the police."