Volltextveröffentlichung

• Europäischer Gerichtshof für Menschenrechte

  ARRAS AND OTHERS v. ITALY

  Art. 6, Art. 6 Abs. 1, Art. 41 MRK
  Remainder inadmissible Violation of Art. 6-1 Pecuniary and non-pecuniary damage - award (englisch)

Sonstiges (2)

• Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)

  Arras and Others v. Italy

• Europäischer Gerichtshof für Menschenrechte (Verfahrensmitteilung)

  [ENG]

Verfahrensgang

• EGMR, 14.02.2012 - 17972/07
• EGMR, 23.10.2019 - 17972/07

Wird zitiert von ...Neu Zitiert selbst (17)

• RG, 14.06.1904 - 243/04

  Ist die Staatsanwaltschaft eine zur Abnahme einer Versicherung an Eidesstatt …

  Auszug aus EGMR, 14.02.2012 - 17972/07

  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 Naples Court of Appeal 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 have 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) 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.

  Law no. 243/04, together with other laws, had not been aimed at influencing judges" determination of pending litigation, but had been part of a general reform of national relevance.

  In the instant case, the Court notes that 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.

  While it is 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 Court notes that 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.

  While in the present case, the justification is not as strong as that in the Maggio case invoked by the Government, the Court is ready to accept 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.

  Reiterating that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is "in the public interest", the Court accepts that the enactment of Law no. 243/04 pursued the public interest (harmonising the pension system by treating equally all pensioners).

  Nevertheless, the Court notes 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, up to 2010, together with a hypothetical calculation for the years to come according to official statistics on life expectancy and bearing in mind that pensions are transferred to the surviving spouse following death at the rate of 60% of the original pay-out.

• EGMR, 12.10.2004 - 60669/00

  KJARTAN ÁSMUNDSSON c. ISLANDE

  Auszug aus EGMR, 14.02.2012 - 17972/07

  Indeed, according to the Court's case-law, even assuming that Article 1 of Protocol No. 1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling that person to a pension of a particular amount (Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX).

  Nor does it guarantee, as such, any right to a pension of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX; Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999-V; and Jankovic v. Croatia (dec.), no. 43440/98, ECHR 2000-X).

• EGMR, 31.01.1986 - 8734/79

  BARTHOLD v. GERMANY (ARTICLE 50)

  Auszug aus EGMR, 14.02.2012 - 17972/07

  Moreover, the Court notes that a wide margin is usually allowed to the States under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98).

  The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule" (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II; and Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I).

 
• EGMR, 28.10.1999 - 24846/94

  ZIELINSKI ET PRADAL & GONZALEZ ET AUTRES c. FRANCE

  Auszug aus EGMR, 14.02.2012 - 17972/07

  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, 13.04.2006 - 75470/01

  SUKHOBOKOV v. RUSSIA

  Auszug aus EGMR, 14.02.2012 - 17972/07

  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, 12.10.2000 - 43440/98

  JANKOVIC c. CROATIE

  Auszug aus EGMR, 14.02.2012 - 17972/07

  Nor does it guarantee, as such, any right to a pension of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX; Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999-V; and Jankovic v. Croatia (dec.), no. 43440/98, ECHR 2000-X).
• EGMR, 12.04.2006 - 65731/01

  STEC ET AUTRES c. ROYAUME-UNI

  Auszug aus EGMR, 14.02.2012 - 17972/07

  The scope of this margin will vary according to the circumstances, the subject-matter and the background (see Stec and Others, [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI).
• EGMR, 26.10.2004 - 27265/95

  TERAZZI S.R.L. c. ITALIE

  Auszug aus EGMR, 14.02.2012 - 17972/07

  Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and Wieczorek v. Poland, no. 18176/05, § 59, 8 December 2009).
• EGMR, 09.12.1994 - 13427/87

  RAFFINERIES GRECQUES STRAN ET STRATIS ANDREADIS c. GRÈCE

  Auszug aus EGMR, 14.02.2012 - 17972/07

  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, 18.11.2004 - 69529/01

  PRAVEDNAYA v. RUSSIA

  Auszug aus EGMR, 14.02.2012 - 17972/07

  However, a "claim" concerning a pension can constitute a "possession" within the meaning of Article 1 of Protocol No. 1 where it has a sufficient basis in national law, for example where it is confirmed by a final court judgment (see Pravednaya v. Russia, no. 69529/01, §§ 37-39, 18 November 2004; and Bulgakova, cited above, § 31).
• EGMR, 15.06.1999 - 34610/97

  DOMALEWSKI v. POLAND
• EGMR, 06.04.2000 - 34369/97

  THLIMMENOS c. GRECE
• EGMR, 23.11.1983 - 8919/80

  VAN DER MUSSELE c. BELGIQUE
• EGMR, 22.09.2005 - 75255/01

  GOUDSWAARD-VAN DER LANS v. THE NETHERLANDS
• EGMR, 09.10.2003 - 48321/99

  SLIVENKO v. LATVIA
• EGMR, 23.09.1982 - 7151/75

  SPORRONG ET LÖNNROTH c. SUÈDE
• EGMR, 25.03.1994 - 17116/90

  SCHERER v. SWITZERLAND

• Generalanwalt beim EuGH, 29.10.2020 - C-798/18

  Federazione nazionale delle imprese elettrotecniche ed elettroniche (Anie) u.a. - …

  28 Vgl. EGMR, 14. Februar 2012, Arras u. a./Italien, CE:ECHR:2012:0214JUD001797207, § 75. Ich verweise auch auf die Schlussanträge der Generalanwältin Kokott in der Rechtssache Inuit Tapiriit Kanatami u. a./Kommission (C-398/13 P, EU:C:2015:190, Nr. 76) und auf die dort zitierte Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte.