The ECHR found a violation of the requirements of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 6 § 1 of the Convention for the Protection of Huma Сведения: 2018-07-22 06:02:10

The ECHR judgment of 01 June 2017 in the case of Stefanetti and Others v. Italy (applications No. 21838/10 and others).

In 2010, the applicants were assisted in the preparation of applications. The applications was subsequently communicated in Italy.

The case successfully considered the applicants' complaints about the loss of two thirds of old-age pensions as a result of the introduction of legislation effectively prejudging the outcome of the proceedings against the state. There has been a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1 of Protocol No. 1 to the Convention.

 

CIRCUMSTANCES OF THE CASE


The applicants instituted proceedings concerning the calculation method used by the National Social Insurance Agency (INPS) to determine the right to an age pension. However, the courts rejected their claims after the enactment of clarifying legislation, the provisions of the Financial Law of 2007 (Law No. 296/2006), which supported the INPS position. As a result, the applicants lost about two thirds of the pension, which they could expect to receive on the basis of the case-law of the country's courts.

By the judgment of 15 April 2014 (main decision), the Court found that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, because of the lack of urgent reasons for public interest and the disproportionate consequences of this legislative interference. The Court awarded EUR 12,000 to each of the applicants and deferred consideration of the matter of pecuniary damage.


ISSUES OF LAW


The Court has determined the damage in two stages.

(a) Calculation of the difference between the actual amounts received and those that would have been received in the absence of the contested legislation. (i) The period under consideration. The period that should be taken into account began on the date of the applicants' retirement. As regards the moment of its termination, the Court did not take for it:

- the period that ends with the entry into force of this legislation (argument of the Government of the respondent State), since a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 was not solely related to the retrospective nature of the law;

- or the continuation of the period before the end of the applicants 'life expectancy (the applicants' argument), since fair compensation should have been related to the violations found. As for the period following the basic resolution (rendered in 2014), the damage suffered must be determined and reviewed by the domestic authorities in the context of the procedure for the implementation of the main Decree.

This damage was due solely to the fact that the challenged legislation continued to operate. In accordance with article 46, paragraphs 1 and 2, of the Convention, in the context of enforcing regulations, States have an obligation to put an end to the violation and to remedy its consequences. The European Court of Justice referred in this respect to Resolution CM / ResDH (2013) 91 of the Committee of Ministers of 29 May 2013 on the enforcement of the Lakicevic and Others judgment of Montenegro and Serbia (Lakicevic and Others v. Montenegro and Serbia ) (dated December 13, 2011, complaints N 27458/06 and others).

As a result, the European Court decided to base its calculations on the pension debt established in 2014.

(ii) Amounts required by the parties. Since the amounts claimed by the applicants were wrongly taking into account the various contributions that did not matter, the Court decided to base its calculation on the amounts indicated by the authorities of the respondent State on the basis of the INPS tables. With respect to the period after the date on which the Government's figures are terminated (2012), the Court based its assessment on the applicants' data.

(b) Determination of damage on this basis, taking into account the nature of the violation found. The damage suffered in the present case goes beyond the "loss of opportunity", as there has been a violation not only of Article 6 § 1 of the Convention but also of Article 1 of Protocol No. 1 to the Convention.

Nevertheless, the Court would not have made the same conclusion about the violation if the reduction in the applicants' pension law remained reasonable and proportionate. The Court has previously concluded that a reduction in the amount less than half was reasonable (see Maggio and Others v. Italy, judgment of 31 May 2011, applications no. 46286/09 and others ). Thus, the damage for which compensation was due was not the full difference between the amounts received by the applicants and the amounts they would receive if the legislation had not been adopted. In view of the nature of this dispute, the Court finds it reasonable to establish the amount of material damage in the form of the difference between the amounts received and 55 per cent of the amounts that the claimants would have received in the absence of legislation.

Following these calculations, the Court awarded each of the applicants EUR 14,786 to EUR 167,601, depending on the circumstances of the case. The Court notes that these amounts did not give rise to a special exception to the income tax on pension debts.

 

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