Volltextveröffentlichung

• Europäischer Gerichtshof für Menschenrechte

  CASACCHIA AND OTHERS v. ITALY

  Art. 6, Art. 6 Abs. 1 MRK
  Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings Article 6-1 - Fair hearing Equality of arms) (englisch)

Sonstiges (2)

• Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)

  Casacchia and Others v. Italy

• Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)

  CASACCHIA AND OTHERS v. ITALY and 2 other applications

  Art. 6, Art. 6 Abs. 1, Art. 14, Protokoll Nr. 1 Art. 1, Protokoll Nr. 1 Art. 1 Abs. 1 MRK
  [ENG]

Wird zitiert von ... (2)Neu Zitiert selbst (6)

• RG, 14.06.1904 - 243/04

  Ist die Staatsanwaltschaft eine zur Abnahme einer Versicherung an Eidesstatt …

  Auszug aus EGMR, 15.10.2013 - 23658/07

  The enactment of Law no. 243/04.

  These culminated in the enactment of section 1 paragraph 55 of Law no. 243/04, which interpreted the relevant law to the effect that retired employees of the Banco di Napoli could no longer benefit from the system of perequazione aziendale and made it effective retroactively, with effect from 1992.

  The Court of Cassation upheld the ground of appeal that the first-instance court could not have taken account of Law no. 243/04 - not yet in force at the time of its judgment - an interpretation law applicable retroactively, which was designed to resolve a conflict of interpretation which had been present in domestic case-law and which had ultimately been resolved by the Court of Cassation (Sezioni Unite).

  Indeed, Law no. 243/04 was enacted to resolve the matter as to whether Articles 9 and 11 of Law no. 503/92 applied only to employees still in service or also to retired pensioners, and provided that as from 1994 onwards a perequazione legale (increase according to the standard of living) had to apply to "all" pensioners, irrespective of their date of retirement.

  In 2007, in two different civil cases, the Court of Cassation referred the matter to the Constitutional Court, considering that paragraph 55 of Law no. 243/04 raised issues of constitutionality on a number of grounds: i) recourse to norms of authentic interpretation would be unreasonable in such circumstances, it being disproportionate and counterproductive vis-à-vis the aim sought, namely the extinction of contentious proceedings; ii) the impugned law would make the determination of the parties" interest dependent on an unconstitutional factor, namely the length of proceedings, and would constitute an inequality of treatment between persons whose proceedings had terminated and others whose proceedings were still pending; iii) the impugned law would unreasonably obliterate the role of the Court of Cassation.

  By a judgment filed in the registry on 7 November 2008, the Constitutional Court upheld the legitimacy of Law no. 243/04.

  Section 1 paragraph 55 of Law no. 243/04 (regarding pension norms in the sector of public welfare, in support of complementary welfare and stable occupation and for the reorganisation of welfare entities and compulsory assistance), in so far as relevant, reads as follows:.

  The applicants complained that Law no. 243/04 as interpreted by the Court of Cassation on 23 October 2006, constituted a legislative interference with pending proceedings which was in breach of their fair trial rights under Article 6 of the Convention, which reads as follows:.

  The applicants submitted that the enactment of Article 1 paragraph 55 of Law no. 243/04 (which they considered a legal mess in its formulation and which had been furtively presented in parliament by an MP who was an ex-consultant of the Banco di Napoli) appeared to interpret a 1992 norm, but in reality amended its content with retroactive effect after twelve years of its application.

  Following the enactment of Law no. 243/04 the domestic courts were bound to find against the applicants.

  The applicants pointed out that there had been no general interest justifying the adoption of Law no. 243/04 which aimed to eliminate retroactively already acquired rights, thus favouring the employer (following a strong lobby).

  In reply to the Government's arguments, the applicants" submitted that it was untrue that jurisprudence before the promulgation of Law no. 243/04 was incongruent.

  The applicants considered that on reading Law no. 243/04 and the relevant articles in context it was clear that they were innovative and not interpretive.

  Thus, the legislature's intervention through the enactment of Law no. 243/04 was to ensure respect for the original will of the legislator.

  Indeed, the meaning given by Law no. 243/04 to the laws at issue had been one of possible meanings, an option which had sometimes also been upheld by the domestic courts.

  In conclusion, given that the interpretation of the relevant laws was controversial, that the Court of Cassation by its judgment no. 9024/01 could not have ensured a positive outcome for all the pensioners (since the Italian system did not embrace the system of precedent and thus courts were not bound by the Court of Cassation judgment) and that Law no. 243/04 had no effect on proceedings which had already come to an end, the Government opined that it could not be considered that the principle of legal certainty had been breached.

  "Law no. 243/04 did not concern decisions that had become final and it settled once and for all the terms of the disputes pending before the ordinary courts retrospectively.

  However, in the present case, there had been no major flaws in the law, and, before the enactment of Law no. 243/04, the domestic courts had been practically unanimous about the interpretation of the relevant legal provisions, particularly following the judgment of 2001 by Italy's highest court.

  The Court has already held in the Arras judgment (cited above, § 58) that while it was true that the applicants pertained to a group of persons who had already retired and who therefore could not make up their reduction in pension (as a consequence of Law no. 243/04) by means of other benefits which other persons still employed could obtain throughout their working life, the aim of Law no. 243/04 was to achieve an equality of treatment of all pensioners, current and future.

  However, what needs to be considered is whether in the instant case the impugned cut-off date arising out of the application of Law no. 243/04 can be deemed reasonably and objectively justified.

  In Arras the Court accepted that Law no. 243/04 was intended to level out any favourable treatment arising from the previous application of the provisions in force, which had guaranteed to persons in the applicants" position a higher adjustment, namely a perequazione aziendale as opposed to legale.

  The Court reiterates that Law no. 243/04 did not affect the applicants" basic pension, and according to the laws in force their pension was still to be augmented over the years according to a perequazione legale.

  The applicants claimed the differential pay-out that they would have received had they not been subject to Law no. 243/04 (namely with perequazione aziendale for the year 1994-1997 and perequazione legal thereafter) up to 2013, together with a hypothetical calculation for the years to come according to official statistics on life expectancy.

• EGMR, 06.04.2000 - 34369/97

  THLIMMENOS c. GRECE

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  It followed that, even if the principle derived from Thlimmenos v. Greece [GC] (no. 34369/97, § 44, ECHR 2000-IV) were applied to the applicants" situation, there was, in the Court's view, objective and reasonable justification for not distinguishing in law between persons who had already begun to receive a pension and others who were still working.
• EGMR, 09.12.1994 - 13427/87

  RAFFINERIES GRECQUES STRAN ET STRATIS ANDREADIS c. GRÈCE

  Auszug aus EGMR, 15.10.2013 - 23658/07

  The Court has repeatedly ruled that although the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports 1997-VII; and Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII).

 
• EGMR, 28.10.1999 - 24846/94

  ZIELINSKI ET PRADAL & GONZALEZ ET AUTRES c. FRANCE

  Auszug aus EGMR, 15.10.2013 - 23658/07

  The Court has repeatedly ruled that although the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports 1997-VII; and Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII).
• EGMR, 12.10.2004 - 60669/00

  KJARTAN ÁSMUNDSSON c. ISLANDE

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  Thus, the Court considers that the applicants were obliged to endure a reasonable and commensurate reduction, rather than the total deprivation of their entitlements (see, conversely, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 45, ECHR 2004-IX).
• EGMR, 13.04.2006 - 75470/01

  SUKHOBOKOV v. RUSSIA

  Auszug aus EGMR, 15.10.2013 - 23658/07

  Although statutory pension regulations are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006), even if such changes are to the disadvantage of certain welfare recipients, the State cannot interfere with the process of adjudication in an arbitrary manner (see, mutatis mutandis, Bulgakova v. Russia, no. 69524/01, § 42, 18 January 2007).

• EGMR, 19.09.2023 - 12772/10

  D'ALESSANDRO AND OTHERS v. ITALY

  23658/07 and 2 others, 15 October 2013).
• EGMR, 19.09.2023 - 52953/09

  MUSSOLIN AND OTHERS v. ITALY

  23658/07 and 2 others, 15 October 2013).