Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant was born in CARDINAL ... and lives in GPE .

The applicant , civil servant for DATE , had been in the service of a government ministry . On DATE she was dismissed , with effect from DATE . Her dismissal was part of a wave of similar measures throughout the entire civil service .

On dismissal , the applicant was statutorily entitled to CARDINAL months’ salary for DATE and DATE during which time she was exempted from working . In addition , she was to receive severance pay amounting to CARDINAL months’ salary in application of section CARDINAL(CARDINAL ) g ) of Act no . XXIII of DATE on ORG , as well as to an unspecified sum corresponding to unused leave of absence .

These benefits DATE in so far as they did not represent compensation for unused DATE leave of absence – were subsequently taxed at PERCENT in their part exceeding MONEY ( ORG ) . The exceeding part was ORG CARDINAL . This represented an overall tax burden of PERCENT on the entirety of the severance , as opposed to the general personal income tax rate of PERCENT in the relevant period .

The tax amount in question was never disbursed to the applicant , but was withheld by the employer and directly transferred to the tax authority .

Section CARDINAL of Act no . XXIII of DATE on ORG provides as follows :

“ ( CARDINAL ) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... .

( CARDINAL ) The amount of severance shall be , if the civil servant ’s service has been at least :

g ) DATE : CARDINAL months’ salary ... ”

On DATE Parliament adopted Act no . XC of DATE on ORG ( “ the LAW ” ) . The LAW , which was published in ORG on DATE , introduced inter alia a new tax on certain payments for employees of the public sector whose employment was terminated . Consequently , severance pay and other payments related to the termination of employment ( such as compensation for unused leave of absence ) exceeding ORG CARDINAL became subject to a PERCENT tax . However , income tax and social security contributions already paid could be deducted from the tax . Notwithstanding the limit of ORG CARDINAL , the statutory provisions on the sum of severance pay DATE in some cases amounting to CARDINAL months’ remuneration – were not modified . The bill preceding the LAW justified the tax with reference to public morals and the unfavourable budgetary situation of the country .

The Act entered into force on DATE ; however , the tax was to be applied to the relevant revenues as from DATE . Simultaneously , the LAW was also amended establishing retroactive tax liability in respect of the given tax year concerning “ any remuneration against good morals ” paid in the public sector .

The LAW was challenged before ORG within the framework of an abstract ex post facto control . This court found the relevant provisions unconstitutional in decision no . CARDINAL . ( X.CARDINAL . ) AB on DATE .

According to ORG , revenues earned solely on the basis of relevant statutory provisions ( that is , the overwhelming majority of the revenues concerned by the disputed legislation ) could not be regarded as being against good morals , and therefore not even the constitutional amendment justified a retroactive PERCENT tax . ORG pointed out that it reviewed the rate or amount of taxes only exceptionally ; however , it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated , i.e. was disproportionate and unjustified . Considering also the “ MONEY rule ” ( GPE ) set out by ORG – according to which the overall tax load on assets must be limited to PERCENT of the yield on those assets – the court found that the PERCENT tax was excessive and punitive , yet it equally applied to severance pay earned in a fully untainted manner . The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established . ORG annulled the relevant provisions retroactively , that is , from DATE of the Act ’s entry into force . It relied on the above arguments , rather than on considerations about the protection of property , to which its scrutiny did not extend in the case .

The Constitutional Court ’s decision contained in particular the following considerations :

“ CARDINAL . ... [ The LAW ] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria , that is , to those ... received from any source specified in the LAW and exceeding the [ relevant ] amount .... The LAW does not apply only to budgetary institutions but to other , ORG - owned employers as well . The use of private resources depends on the ORG relatively free choices and autonomous decisions . However , decisions concerning public funds are different . [ The impugned legislation ] relates to public funds , and determines – at least indirectly – the use of public resources .

... Depending on the circumstances , [ the ] PERCENT tax may apply to payments which derive from the obligatory application of cogent legal provisions . ... In these cases , the special tax does not function as a regulatory instrument , given its inescapable factual basis . Nor does it aim to prevent abusive payments ; its purpose is rather to levy almost the entire income [ in question ] for the central budget . ...

The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified . ...

The material case concerns a substantial punitive tax which also applies to payments which are received , by virtue of law and within the limits of the proper exercise of rights , upon the termination of employment in the public sector . The LAW would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation . It would deprive the taxable persons of incomes originating in unconditional statutory entitlements . ...

To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax . The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law . However , imposing a tax or other similar duty is no constitutional means to achieve such purpose . Several constitutional instruments are at the disposal of the legislator to accomplish its objective . It may reduce or even abolish some ORG allowances falling under the scope of the LAW for the future , or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit . Nonetheless , the discretion of the legislator only prevails in the framework of international and NORP community law . ”

Upon a new bill introduced on DATE as the date of ORG decision , on DATE ORG re - enacted the PERCENT tax with certain modifications , according to which this tax applied from DATE ; however , for the majority of those affected ( excluding some senior officials ) it only applied to revenues above ORG CARDINAL . The new legislation was published in ORG of DATE and entered into force on DATE .

At the same time , ORG again amended the LAW , allowing retroactive taxation going back DATE . Furthermore , ORG powers were limited : the amended articles of the LAW contained a restriction on ORG ’s right to review legislation on budgetary and tax issues . This restriction DATE which has also been maintained in the new LAW in force from DATE allows for constitutional review only in respect of violations of the right to life and human dignity , the protection of personal data , freedom of thought , conscience and religion , and the rights related to NORP citizenship .

Upon a petition for an abstract ex post facto control , on CARDINAL DATE ORG annulled – notwithstanding its limited powers – the DATE retroactive application of PERCENT tax in decision no . MONEY ( V.CARDINAL . ) ORG , relying on the right to human dignity . However , the reasoning of the decision underlined that only the taxation of revenues gathered before DATE constituted a violation of the right to human dignity . ORG did not find unconstitutional as such the Act ’s presumption that the relevant revenues infringed good morals ; however , it ruled that this presumption should be susceptible to a legal challenge . In view of its limited jurisdiction , it did not consider the substantive aspects of the tax .

“ CARDINAL . ... ORG has held that the retroactive effect of the LAW does not only apply to incomes earned contra ORG mores , but also to incomes originating in unconditional statutory entitlements . Payments of statutory amounts [ which have not been abolished ] can not be regarded as being contra DATE mores .

As regards the prospective provisions of the LAW , ORG has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector , and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements . However , in this case the legislator interpreted the “ special rate ” as an entire withdrawal of the income , by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden .

In pursuit of decision [ no . CARDINAL ( X.CARDINAL . ) AB ] , ORG amended the rules on ORG competence as well as the provision of LAW determining the distribution of public burden , and re - enacted the special tax . ...

... [ The new legislation ] contains no reference to the notion “ contra ORG mores ” , and allows for retroactive law - making with regard to DATE in arrears as well as for [ any ] imposition falling short of [ the total ] deprivation of income . ...

CARDINAL.CARDINAL.CARDINAL . ... The legal relations falling under the scope of the special tax are typically regulated by the so - called “ legal status ” Acts [ i.e. the Acts concerning the legal status of civil servants ] . [ In this context , the ] salary is specified by the so - called “ pay scale ” , which is independent from the parties and obligatory for them .

[ Moreover , ] the personal scope of the special tax also includes employers and employees , mainly those who belong under LAW , who can significantly influence the amount of the allowance received upon the termination of employment . ...

In this respect , the special tax is a tax whose purpose is not to generate [ ORG ] revenue . It is , in this connection , a regulatory instrument . ... Certain taxes may serve not only the purpose of increasing ORG revenue , but also function as regulatory instruments . Secondarily , but not insignificantly , [ this ] taxation can be also seen as part of the ORG ’s economic policy . In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion . ...

... The special tax is not a general income tax applicable to all types of income , but rather a particular tax levied on non - repetitive , non - regular payments which relate to certain factual circumstances ( i.e. the termination of a legal relation ) and which exceed a certain limit . ...

Such a tax with ex nunc effect can not be considered to violate the right to protection of human dignity or to constitute an improper interference by the ORG with individual autonomy . Taking into account its base , the incomes not belonging in that base and their amounts , the special tax can not be considered as completely dispossessing the tax subjects . ...

The individual ’s acquisition of the income subject to the special tax is restricted by a public - law limitation originating in that tax ...

TIME . ... In case of misuse of public resources , the limitation on payments might even have retroactive effect , [ under ] section CARDINAL/I ( CARDINAL ) of the LAW . ORG has already emphasised in its decision [ no . TIME ( X.CARDINAL . ) AB ] that a retroactive special tax may be imposed on unfairly high payments , on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated DATE ; the LAW aiming at preventing abuses and endorsing the society ’s sense of justice is not unconstitutional in itself , but must remain within the framework of LAW .

However , to impose tax on incomes [ lawfully ] acquired during DATE ... can not be considered as the implementation of the new paragraph ( CARDINAL ) of section CARDINAL of the LAW , but rather interference by a public authority with individual autonomy going to such lengths that can not have constitutional justification , and therefore violates the ORG human dignity . ...

The special tax does not provide for a fair and just assessment of individual circumstances ; its retroactive rules apply to everyone [ with CARDINAL exceptions mentioned above ] without differentiation . Nor does it take into account objective circumstances concerning a wide range of taxpayers , such as the economic crisis or emergency situations , which may disadvantageously influence the ORG circumstances . ... ”

On DATE ORG again re - enacted the retroactive application of the PERCENT tax . The amendment to Act no . ORG of DATE was published in ORG on DATE and entered into force on DATE . It provided that only relevant revenues earned after DATE should be subject to the tax . The amended legislation did not contain any remedy available to those affected .

The LAW , as in force as of DATE , provides ( in sections CARDINAL - CARDINAL/B ) that the special tax rules are applicable to incomes received on DATE or after . Incomes shall be subject to a PERCENT special tax where the private individual has worked at an economic operator or an organisation operating from public money , the payment is effected on account of the termination of the private individual ’s work relationship , and the amount of the income exceeds ORG CARDINAL ( in certain cases ORG CARDINAL ) . Incomes received between CARDINAL DATE and CARDINAL DATE were declared by private individuals by means of self - assessment , in tax returns submitted until DATE or CARDINAL DATE ( depending on the taxpayer group ) . The tax was payable by the same dates .

Members of ORG , vice mayors and Members of ORG declared their income earned in DATE and subject to the special tax in a different manner , in a separate tax return submitted until DATE . They paid the special tax until DATE . Persons subjected to the payment of special tax declared their taxable incomes earned DATE and CARDINAL DATE by way of tax returns submitted until DATE or DATE ( depending on the taxpayer group ) , and paid the tax by the same dates . In all other cases , the special tax is deducted by the payment issuer as withholding tax , and the deduction is indicated in the private individual ’s tax return for the given revenue year .

Any charges paid by or deducted from the private individual including , in particular , personal income tax or individual contributions shall be regarded as tax advances paid on the special tax .

The Charter of Fundamental Rights of ORG provides as follows :

“ CARDINAL . The ORG recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity , illness , industrial accidents , dependency or old age , and in the case of loss of employment , in accordance with the rules laid down by Community law and national laws and practices . ”

ORG held in Case C-CARDINAL/CARDINAL PERSON v. PERSON , [ DATE ] ORG I-CARDINAL as follows :

“ CARDINAL . The aim pursued by the severance allowance of protecting workers with DATE of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article CARDINAL ) of Directive ORG . ”

European Commission Recommendation of DATE on remuneration policies in the financial services sector ( CARDINAL ) provides as follows :

“ CARDINAL . Excessive risk - taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member GPE and globally ....

Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective . Therefore , there is a need to establish principles on sound remuneration policies . ”


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was arrested on charges of forgery of documents and fraud in connection with a criminal investigation that had been opened on DATE .

It was alleged that the applicant , with the assistance of a customs officer and CARDINAL other accomplices , had made false customs declarations certifying fictitious exports of consignments of cigarettes which in reality had been sold on the domestic market . On the basis of the false declarations the applicant had obtained the reimbursement of some excise tax and had attempted to obtain further reimbursements . The total amount involved , for which the applicant was eventually found guilty ( see paragraph CARDINAL below ) , was CARDINAL old NORP levs ( “ FAC ) ( MONEY ( “ FRF ” ) at the time ) .

The charges preferred against the applicant were based on section CARDINAL § CARDINAL of LAW , which provided for a sentence of CARDINAL twenty years’ imprisonment .

During the preliminary investigation the case file was transmitted twice from the GPE investigator ’s office to ORG so that the appeals against detention could be examined . The case file was thus unavailable to the investigator and the supervising prosecutor for DATE ( DATE and DATE ) and for a further DATE ( DATE and DATE ) .

The preliminary investigation was concluded on DATE when the indictment drawn up by the prosecutor was submitted to ORG .

ORG sat as a chamber of CARDINAL judges : a president who was a professional judge and CARDINAL lay judges .

It held its first hearing on CARDINAL and CARDINAL DATE when the CARDINAL accused and several witnesses were heard . The prosecutor and the defence lawyers requested permission to submit further evidence . The court adjourned the hearing .

Several times during the proceedings ORG had to wait for the case file to be returned by ORG in GPE , where it had been sent for the examination of the appeals submitted by the applicant and his co - accused against ORG refusals to release them on bail . In practice , whenever such an appeal was submitted , ORG transmitted the case file together with the appeal and a prosecutor ’s opinion .

The case file was sent to ORG on DATE for CARDINAL of the co - accused ’s appeal against detention to be examined and was returned on DATE .

ORG did not deal with the case until DATE , when the presiding judge ordered the production of a piece of evidence .

The next hearing was held on DATE . The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared . Some of them were ordered to pay fines for their failure to appear . The court further decided to seek the assistance of the police to establish the addresses of other witnesses who could not be found .

The hearing resumed on CARDINAL and DATE . Several witnesses and experts were heard . Both the prosecution and the defence sought to adduce additional evidence . The hearing was adjourned .

DATE and QUANTITY DATE the case file was in GPE at ORG for the examination of appeals against detention .

The hearing listed for DATE was adjourned as the presiding judge was ill . The next hearing , scheduled for DATE , was adjourned as CARDINAL of the lay judges had been taken ill .

On DATE the court sitting in private ordered an expert report .

The hearing listed for DATE was adjourned owing to the illness of the lawyer of CARDINAL of the co - accused .

DATE and DATE the case file was in GPE at ORG , which was examining appeals against detention .

The next hearing , listed for DATE , had to be adjourned as both lay judges were ill .

After learning that the lay judges were prevented by ill health from further participation in the proceedings , on DATE ORG recommenced the examination of the case with CARDINAL new lay judges .

The new chamber of the court held a hearing on CARDINAL and DATE which was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court ’s clerk and because the parties sought to adduce further evidence . The court fixed the date for the next hearing to CARDINAL and CARDINAL DATE .

On DATE and CARDINAL DATE the court heard several witnesses and an expert . The hearing was adjourned as further evidence had to be obtained .

DATE the case file was at ORG in GPE in connection with appeals against detention .

The hearing scheduled for CARDINAL and DATE was adjourned to CARDINAL and DATE as a lay judge had broken his leg and was unable to attend .

On DATE the parties to the criminal case , including the applicant who at that time was on hunger strike , appeared before ORG . The lawyers requested an adjournment in view of the applicant ’s health and the absence of the witnesses and of a defence lawyer . The court heard the medical experts who had been appointed DATE and had examined the applicant briefly . The experts stated that the applicant needed to undergo a full examination in hospital . On DATE the court ordered the applicant ’s temporary admission to hospital and adjourned the hearing . The parties disagreed over the reasons for this adjournment . The applicant submits that the absence of several witnesses was decisive , whereas the Government maintain that the only reason was the applicant ’s state of health , as the medical experts considered that he was not well enough to participate in the hearing .

DATE and DATE the case file was in GPE at ORG in connection with appeals against detention . In its cover letter to ORG , ORG drew attention to the fact that a hearing had been listed for DATE and called for the return of the case file before that date .

The hearing resumed on DATE . CARDINAL witness was examined . As other witnesses had not appeared , the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment .

With CARDINAL exceptions , ORG did not , when adjourning hearings , announce in open court a date for the resumed hearing . As a result , certain witnesses and experts who were present but had to be heard again were informed about the date of the resumed hearing by a summons to attend . If the summons did not reach the person concerned the examination of the case could not be completed at the resumed hearing .

In particular , the witnesses PERSON and Mr PERSON were present at the hearing on CARDINAL DATE , but were not duly summoned for the hearing on CARDINAL DATE . The witness PERSON was present at the hearing on DATE but was not duly summoned for the hearing on DATE . That latter hearing was adjourned to allow the examination of witnesses who had not appeared .

ORG throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court . One of the witnesses was suspected of seeking to evade service of the summonses .

The last hearing before ORG took place on PERSON DATE . The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence . The applicant apparently unsuccessfully requested the adjournment of the hearing in order to question CARDINAL absent witnesses whose attendance had previously been requested by both parties .

On DATE ORG convicted the applicant and sentenced him to CARDINAL years’ imprisonment . His accomplices were also convicted and sentenced to terms of imprisonment of CARDINAL . The court reserved the reasoning of its judgment . It was prepared on an unspecified date DATE following the delivery of the judgment .

On DATE the applicant appealed against conviction and sentence to ORG , which under the relevant law was acting as an appellate court in cases such as the applicant ’s .

ORG listed the case for hearing on DATE . On that date the prosecutor appointed to act before ORG declared that he used to know one of the convicted persons and wished to withdraw . The court adjourned the hearing .

The hearing was held on DATE . On DATE ORG upheld the applicant ’s conviction and sentence .

Up to that point the applicant had been represented by a lawyer and , at times , by CARDINAL or CARDINAL lawyers simultaneously .

On DATE CARDINAL of the persons convicted at the same trial instituted review ( cassation ) proceedings .

The CARDINAL - member ORG held a hearing on DATE at which the applicant appeared without legal representation . He expressed the wish to join the review ( cassation ) proceedings , which was still possible as the statutory time - limit had not expired . The court adjourned the hearing to enable the applicant to file a petition for review ( cassation ) and arrange for his legal representation . The applicant lodged a petition for review on DATE .

The hearing resumed on DATE .

By judgment of CARDINAL DATE ORG dismissed the applicant ’s petition for review ( cassation ) .

On DATE , the day of his arrest , the applicant was brought before an investigator , who decided to detain him on remand . This decision was approved by a prosecutor on the same date .

On DATE , when the case was at the preliminary investigation stage , the applicant appealed to ORG against his detention on remand . The court examined the case in private , on the basis of the investigator ’s file , the applicant ’s petition and the prosecutor ’s comments , which were not communicated to the applicant . By a decision of DATE the court dismissed the applicant ’s appeal .

One of the applicant ’s accomplices , a Mr H. , was released on bail on DATE , but was re - arrested on DATE . While on bail PERSON attempted to induce PERSON , a witness , to give false evidence , and was later charged with and convicted of that offence .

Following the conclusion of the preliminary investigation in the applicant ’s case , and after his committal in DATE for trial , the applicant made before ORG CARDINAL applications for release on bail . Appeals were made to ORG against some of the decisions of ORG .

The first of those CARDINAL bail applications was made on DATE and dismissed by ORG on DATE .

Another request , made on an unspecified date , was dismissed by ORG on DATE . ORG refusal to release the applicant was confirmed by ORG on DATE .

In its decision of CARDINAL DATE ORG stated that under LAW and CARDINAL of LAW detention on remand was mandatory for everyone accused of a crime punishable by DATE imprisonment , the only exception being where it was clear beyond doubt that there was no danger of the accused ’s absconding or re - offending . In ORG view such would only be the case where , for example , the accused was seriously ill , elderly or in any other condition which excluded the danger of his or her absconding or re - offending . Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re - offending had been established , there were no grounds for ordering his release on bail . ORG referred to its practice on the matter .

ORG further refused to consider the applicant ’s contention that the evidence against him was weak . It found that it had no jurisdiction to do so in connection with a bail application . Its only task was to examine whether the conditions for detention on remand under LAW had been met .

The applicant again applied for his release on bail on DATE . That application was dismissed by ORG on DATE . On appeal , ORG refusal to release the applicant was upheld by ORG sitting in private on DATE , upon receipt of the prosecutor ’s observations which had not been communicated to the applicant . ORG stated that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding , re - offending or obstructing the investigation . However , no such evidence was available in the applicant ’s case .

By a decision of CARDINAL DATE ORG refused the applicant ’s request , submitted on an unspecified date , to annul or revise its previous decision concerning his detention on remand . Addressing the applicant ’s argument that the material in the case indicated that he had not committed a crime , the court stated that it was not open to it to analyse the evidence in the criminal proceedings . The lawfulness of the detention was to be gauged on the basis of the accusation against the applicant . The only other element to be examined was whether or not there existed exceptional circumstances demonstrating beyond all doubt that there was not even a hypothetical danger of his absconding , re - offending or obstructing the investigation . However the court had already found that no such circumstances existed .

A further request for release on bail , submitted on DATE , was refused by ORG on DATE as there had been no change in the circumstances .

At the hearing on DATE before ORG the applicant made an oral request for release . This was refused that DATE . The court stated that there had been no change of circumstances and that the law did not lay down a time - limit for detention on remand .

On DATE the applicant ’s lawyer lodged an appeal to ORG against the decision of DATE . DATE , on DATE , the applicant also appealed in person . The appeals were submitted through ORG , in accordance with the established practice . The grounds for appeal were , inter alia , that all evidence in the criminal case had already been examined and that therefore there was no danger of the applicant ’s perverting the course of justice . Furthermore , there was no danger of his absconding , as he had been abroad when the investigation had started and had returned voluntarily . He had never been convicted of a criminal offence , had a family and a permanent residence . The applicant also stated that the length of his detention violated the ORG .

By a decision of DATE delivered in private ORG , before transmitting the appeals of CARDINAL and DATE to ORG , confirmed its refusal of DATE to release the applicant . ORG stated inter alia that the applicant ’s arguments could not , under the settled practice of ORG , serve as a basis for a decision to release him .

The applicant ’s appeals of CARDINAL and DATE were transmitted to ORG on DATE . On DATE the applicant lodged a further appeal against ORG refusal to release him . It was joined to the CARDINAL earlier appeals .

DATE . On DATE a prosecutor of ORG lodged written submissions on the appeals with ORG , inviting it to dismiss them . The submissions were not communicated to the applicant .

On DATE ORG dismissed the appeals . It found that under LAW the applicant ’s detention on remand was justified and that the case before it did not come within the exception provided by LAW .

The court also stated that the length of the proceedings and the question whether the accusations were well - founded were irrelevant .

On DATE the applicant lodged a further application for release on bail . At that time he was on hunger strike which he had commenced on DATE to protest against his continuing detention on remand .

The presiding judge noted on DATE that the court could not hear the appeal as CARDINAL of the lay judges had been taken ill .

At the hearing of CARDINAL and DATE the applicant renewed his application .

ORG heard medical experts who had examined the applicant and it dismissed his application of DATE .

On DATE the applicant ’s lawyers lodged an appeal against the decision of DATE .

On DATE , before transmitting the appeal to ORG , ORG sitting in private confirmed its decision of DATE . It found inter alia that there had been no change of circumstances except for the applicant ’s worsening health . However , the medical experts had not stated that his release was necessary and his condition was being constantly monitored in hospital .

On DATE the appeal was transmitted to ORG .

On DATE a prosecutor of ORG submitted written observations to ORG , inviting it to dismiss the appeal . The comments were not communicated to the applicant .

On DATE ORG sitting in private dismissed the appeal . It stated , inter alia , that the danger of absconding , re - offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged . The applicant ’s health problems , which could be dealt with at the place of detention , and the length of his detention despite its inevitable negative consequences did not affect that finding . The court further considered that the applicant ’s complaints under the Convention were unfounded . In particular , the applicant was wrong to consider that certain provisions of LAW were contrary to the Convention .

On DATE the applicant was convicted and sentenced to a term of imprisonment ( see paragraph CARDINAL above ) .

ORG has stated that it is not open to the courts , when examining an appeal against detention on remand , to inquire whether there exists sufficient evidence to support the charges against the detainee . The courts must only examine the lawfulness of the detention order ( Decision no . CARDINAL of CARDINAL DATE in case no . CARDINAL/CARDINAL , ORG , ORG , p. CARDINAL ) .

Paragraphs CARDINAL and CARDINAL of Article CARDINAL , as in force at the material time ( and until DATE ) , provided as follows :

“ ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] crimes punishable by CARDINAL or more years’ imprisonment or capital punishment .

( CARDINAL ) In the cases under the preceding paragraph [ detention on remand ] shall not be imposed if there is no danger of the accused evading justice or committing further offences . ”

These provisions , as worded from DATE until DATE , provided as follows :

“ ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] a serious wilful crime .

( CARDINAL ) In the cases falling under paragraph CARDINAL [ detention on remand ] may not be imposed if there is no danger of the accused evading justice , obstructing the investigation , or committing further offences . ”

According to LAW a “ serious ” crime is one punishable by more than DATE imprisonment .

With effect from DATE Article CARDINAL and other provisions concerning the grounds for detention on remand were amended .

According to ORG practice at the relevant time ( it has now become at least partly obsolete as a result of the amendments in force since DATE ) LAW required that a person charged with a serious wilful crime ( or with a crime punishable by DATE imprisonment , according to this provision as in force before DATE ) had to be detained on remand . An exception was only possible , in accordance with section CARDINAL § CARDINAL , where it was clear beyond doubt that any danger of absconding or re - offending was objectively excluded as , for example , in the case of an accused who was seriously ill , elderly , or already detained on other grounds , such as serving a sentence ( Decision no . CARDINAL of CARDINAL MayCARDINAL in case no . CARDINAL/CARDINAL , ORG , DATE , p. CARDINAL ; Decision no . CARDINAL of CARDINAL DATE in case no . CARDINAL , ORG ; Decision no . CARDINAL of DATE in case no . CARDINAL , ORG ; Decision no . CARDINAL in case no . CARDINAL/CARDINAL , ORG , ORG , p. CARDINAL ) .

According to Article CARDINAL § CARDINAL of the Code of Criminal Procedure , the detainee ’s applications for release at the trial stage of criminal proceedings are examined by the trial court .

It follows from Article CARDINAL § § CARDINAL and CARDINAL that such requests may be examined in private or at an oral hearing . The law does not require the trial court to decide within a particular time - limit .

The trial court ’s decision as regards a request for release is subject to appeal to the higher court ( LAW ) . The appeal must be lodged within DATE ( Article CARDINAL ) with the trial court ( Article CARDINAL § CARDINAL in conjunction with Article CARDINAL § CARDINAL ) . According to Article CARDINAL , after receiving the appeal , the trial court , sitting in private , shall decide whether there exist grounds to annul or vary its decision . If it does not find a reason to do so the trial court transmits the appeal to the higher court .

Before doing so , the trial court must communicate the appeal to the other party and receive its written observations ( LAW in conjunction with ORG CARDINAL and CARDINAL ) . The law does not provide for the prosecutor ’s observations to be communicated to the appellant .

Article CARDINAL provides that the appeals court may examine the appeal in private or , if it considers it necessary , at an oral hearing . The law does not require the appeal court to decide within a particular time - limit .

Article CARDINAL § CARDINAL lays down that it is an offence to misappropriate very large quantities of possessions by using forged documents . This offence is punishable by CARDINAL to twenty years’ imprisonment .

Article CARDINAL of the Code of Criminal Procedure is entitled “ Substitute judges and lay judges ” . Paragraph CARDINAL provides :

“ Where the examination of the case will be lengthy , a substitute judge or lay judge may be appointed . ”

In DATE the ORG split into a ORG and a ORG .

Article CARDINAL of the Code of Criminal Procedure , in force since DATE , provides that criminal proceedings may be reopened where “ a violation of the Convention of substantial significance for the particular case has been established by a judgment of ORG .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

The applicant is a journalist at the regional DATE PERSON which is published in GPE . In CARDINAL articles published in DATE and DATE she described the allegedly unprofessional behaviour of an unnamed surgeon , “ X ” , which allegedly had caused the death of a patient in ORG on DATE . The patient 's top rib had been pressing on her artery , thereby hampering the blood flow in her left arm which would occasionally go numb . The surgery had consisted of shortening the top rib by QUANTITY . Complications had arisen after the rib had been shortened and the patient was established to have died from the bursting of her subclavian vein and the blood flow into her pleural cavity .

The patient 's widower , PERSON , had filed a criminal complaint against X and another surgeon who had assisted during the operation . ORG ( terveydenhuollon oikeusturvakeskus , rättsskyddscentralen för hälsovården ) had not found it possible to establish at what stage of her operation PERSON had suffered the injury leading to her death . Consequently , no causal link could be established between the injury and the conduct of either of the CARDINAL surgeons .

ORG had conducted a pre - trial investigation into the death . In DATE ORG had decided not to press charges against X , as there was no evidence that he was guilty either of an offence in office caused by negligence or of involuntary manslaughter . The prosecutor had reasoned , inter alia , as follows :

“ ... From the point of view of criminal law it must be examined whether the subclavian vein burst as a result of conduct of which someone may be held guilty and whether errors were committed during the after - care . ... The [ expert ] opinions have not found that the subclavian vein burst as a result of maltreatment or negligence attributable to [ X ] or the other operating surgeon . ... [ The pre - trial record contains ] a number of statements concerning [ X 's ] possible alcohol consumption . ... In respect of DATE of the operation the information is contradictory . ... Therefore there is insufficient evidence to find that [ X ] was under the influence of alcohol while operating on PERSON and that such influence affected his ability to carry out his duties . ... Nor has it been possible to determine whether [ X 's ] shaking hands impacted in any significant way on the conduct of his surgery . ... ”

The applicant 's first article of CARDINAL DATE bore the title “ If only I could get a good grip on life again ” ( PERSON elämästä kunnolla kiinni ) . It contained an interview with PERSON . The text accompanying his picture read as follows :

“ How is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood DATE is it not a fact that pilots only get to manoeuvre a plane when they are absolutely sober , wonders PERSON , who lost his wife . ”

The introductory text on the front page bore the title : “ How to survive all of this ? ( ORG ? ) . It read as follows :

“ PERSON , a father of CARDINAL in GPE is trying to get a grip on his life again . DATE the wet Independence Day of a ORG surgeon cost the life of [ Mr PERSON 's ] wife .

– Whose is the responsibility , asks PERSON . ”

The front page also carried a picture of the couple .

NORP On DATE PERSON published a second article by the applicant entitled : “ A position of responsibility never goes with alcohol ” ( PERSON työ ja alkoholi eivät koskaan sovi yhteen ) . It contained interviews with the Chief Physician of ORG and a Chief PERSON of ORG and discussed the need for surgeons and pilots to be sober and also otherwise in an appropriate condition in order to perform their tasks . The article made no reference to the previous article , nor did it mention PERSON or PERSON or X

A third article by the applicant – published on DATE was entitled “ The case of PERSON did teach us something ” ( PERSON tapaus sentään opetti ) and made reference to her article of DATE . It read , inter alia , as follows :

“ [ The article of DATE ] raised the question of patient safety : how was it possible that a relatively young woman in good shape died from routine surgery . The pre - trial records speak , among other things , of the wrong form of collegiality . ... ”

Under the subheadings “ We were concerned for our patients ” and “ Complications arose after the surgeries ” the article cited CARDINAL extracts from statements by hospital staff heard during the pre - trial investigation . The extracts read , inter alia as follows :

“ ' Surgeon X has been the specialist doctor on the ward for DATE . Soon after he came to work here alcohol - related problems occurred . Often he had a visible hangover , which showed in his not being neatly dressed , in his reddish and swollen face , in his shaking hands and in his breath which smelled freshly of alcohol . '

' We were concerned for the patients on whom surgeon PERSON was operating . The DATE TIME were the worst , when [ his ] hands were also shaking the most . We would inform the other doctors on the ward of our observations , mainly Dr Y and PERSON In particular before a more important surgery we would ask another doctor to attend it . On many occasions Dr Y and Dr Z would attend because we had so requested . '

' The patients operated on by surgeon PERSON have suffered from more post - operative complications . The patients have had bleeding . ... '

' Apparently patients have also made their own observations : I remember the case of a patient – due to arrive for an operation – who enquired who was going to operate on him . Since no surgeon had yet been designated , the patient informed us he would not come at all , unless PERSON would perform the surgery . After the incident on DATE we have been receiving many telephone calls like this one ... '

These unpolished statements can be found in the pre - trial record drawn up by the GPE branch of ORG . [ The record ] is a public document and may therefore be cited in this newspaper . ... ”

Under a subheading entitled “ Dubious appointment ” ( Valinta hiersi ) the article described certain hesitations which had preceded X 's appointment in DATE .

Under a subheading entitled “ The best interests of the patient seem to have been forgotten ” ( Potilaan paras taisi unohtua ) the article continued as follows :

“ The pre - trial records clearly reflect the collegiality within the medical team , as shown in a wish to cover up a colleague 's clear problem . ...

A nurse who attended the round [ preceding PERSON operation ] attempted to remedy the situation :

' During the round surgeon PERSON came over to my left side . Then I noticed that he was clearly drunk . ...

I tried to establish eye contact with the other doctors in order to indicate [ my concern ] to them . I got no such opportunity . I even tried to have one of the CARDINAL other doctors stay behind after the round but they had already gone off to the coffee room . '

... The pre - trial record gives the impression that the memory of either of the CARDINAL [ surgeons ] is failing . Even the ORG Injuries arrive[d ] at the conclusion that no one [ could ] be considered guilty , though , sadly , the patient died . Judging from [ an X - ray ] picture , the piece of bone [ osteophyte ] which remained inside [ Mrs Haapalainen ] after the operation was at any rate so sharp that it could have been fatal in itself even at a later stage . ... ”

The article of DATE then continued with statements by chief physicians and chief surgeons of CARDINAL central university hospitals , essentially reassuring the reader that a surgeon who was drunk , ill or just tired would not be allowed to operate .

Finally , the article contained a statement by the Chief Physician of the Seinäjoki Hospital “ who at the time took a rather humane , even though strict approach ” :

“ When more serious problems started occurring in surgeon PERSON 's work , we established another parallel position for a surgeon specialised in the same field , and things started working well . After [ PERSON ] death , surgeon PERSON was prohibited from operating for DATE . In the beginning when he came to work he had to perform a breathalyser test .

– Now surgeon PERSON is the physician responsible for one of the wards and occasionally assists during surgery . Everything has been going well : even his hands are no longer shaking . ”

The article was illustrated with a drawing depicting a seemingly intoxicated surgeon using a pen to mark where to cut open the patient 's stomach .

NORP The public prosecutor , joined by X , charged the applicant before ORG ( käräjäoikeus , tingsrätt ) on CARDINAL counts of intentional defamation . In the article of CARDINAL DATE she had defamed X “ without better knowledge ” ( ei vastoin parempaa tietoa , icke emot bättre vetande ) . In the article of DATE she had defamed X “ despite better knowledge ” ( vastoin parempaa tietoa , emot bättre vetande ) , that is to say by imputing an offence to him whilst knowing that he had not committed CARDINAL .

The editor - in - chief of PERSON , PERSON , was charged with negligent abuse of the freedom of the press ( painovapauden tuottamuksellinen väärinkäyttö , vållande till missbruk av yttrandefriheten ) within the meaning of section DATE of the Freedom of LAW ( painovapauslaki , tryckfrihetslag CARDINAL/CARDINAL ) . The prosecution argued that , regardless of the fact that he had become aware of the possibility that the applicant 's article of DATE might have defamed X and of the fact that the applicant was intending to write a further article , he had failed to supervise the publication of the applicant 's article of CARDINAL DATE by demanding that the article be approved by him .

The applicant denied both charges , arguing that X could not have been identified on the basis of her articles and that she had not even been aware of his identity when writing her first article . That article had concentrated on describing PERSON feelings as the surviving widower , whereas the article of DATE had discussed patient safety . She had quoted from official documents and her articles had not forced X to close his private practice , as alleged by him .

PERSON also denied the charges against him , stating inter alia that after the first article had been published he had offered to publish a response by X. No such response had been forthcoming . The articles had been based on various sources and official documents accessible to the public . Moreover , the press was entitled to deal with the activities of a public hospital and patient security within such institutions .

On DATE ORG , relying on chapter CARDINAL , section CARDINAL , of LAW ( rikoslaki , strafflag ) as in force at the relevant time , convicted the applicant of defamation committed “ despite better knowledge ” and by using a printed matter ( painotuotteen kautta vastoin parempaa tietoa tehty herjaus , smädelse genom tryckalster emot bättre vetande ) . The conviction was grounded only on her article of DATE , whereas she was acquitted of defamation committed “ without better knowledge ” by means of her article of CARDINAL DATE . She was sentenced to CARDINAL DATE income - based fines at the rate of MONEY ( ORG ) ( corresponding to CARDINAL ( EUR ) ) , totalling ORG CARDINAL.CARDINAL ( EUR CARDINAL ) .

PERSON was convicted as charged and sentenced to CARDINAL DATE fines at the rate of FIM CARDINAL ( EUR CARDINAL ) , totalling ORG CARDINAL,CARDINAL ( ORG CARDINAL ) .

The defendants were ordered to reimburse jointly a witness fee in the amount of ORG CARDINAL.CARDINAL ( EUR CARDINAL.CARDINAL ) as well as the complainant 's legal costs in the amount of FIM CARDINAL ( EUR CARDINAL ) .

NORP In examining the charges against the applicant as based on her article of DATE , ORG took note of the banner headline and picture texts as well as of a third statement appearing in the text and which found it strange that nobody had intervened to prevent the surgeon from conducting the operation , even though everyone must have seen in what condition he was . The last - mentioned statement and the picture text had to be understood as having been expressed by PERSON . The article had contained an allegation that the surgeon had been drunk or had been suffering from a hangover while operating on PERSON and that this had led to her death , without specifying in any detail why .

ORG further found that as the article of DATE had contained a statement to the effect that the surgeon had been prohibited from conducting further operations , it had given the reader the impression that he or she had been punished for some sort of breach of official duties .

Turning to the article of CARDINAL DATE , ORG noted that it had contained a reference to the first one and had asked how it was possible that a relatively young woman in good physical condition could die as a result of a routine surgery . The article had then cited statements from the pre - trial record which had discussed the surgeon 's alcohol problem and the attitude of hospitals to that problem generally . Moreover , although ORG had been of the opinion that no one could be considered guilty of PERSON death , the osteophyte which had remained in her body after the operation could have been fatal at any later stage .

The article of DATE had given the reader the impression that the surgeon had been drunk or had been suffering from a hangover while operating on PERSON . The final statement in that DATE to the effect that “ surgeon PERSON was now doing fine ” – strengthened the impression that his or her alcohol problem had been acute at the time of the operation in question . Even though the article 's reference to a sharp osteophyte had been somewhat misleading in light of ORG opinion , this article had not taken any position as to the cause of PERSON death .

ORG further found that even though X could not have been identified on the basis of the first article , the article of CARDINAL DATE did render him identifiable to his potential clients in the ORG area .

Considering the fact that the articles had been published in a DATE with an interval of DATE between them , the applicant 's possible guilt had to be determined in respect of each of the articles . Her first article had been based solely on information provided by PERSON , although already then she had been aware both that a police investigation had been conducted into the suspected maltreatment and that the public prosecutor had decided not to bring charges against the operating surgeon . Subsequently , but before writing her article of DATE , she had obtained from the office of ORG the complete pre - trial investigation record , the opinion of ORG and ORG decision .

In elaborating on the applicant 's possible guilt the court reasoned as follows :

“ The court acknowledges the freedom of the press to report critically on hospitals and , among other issues , on any alcohol abuse that might have been established in such an institution . A critical reviewer must nevertheless bear in mind that his or her statements may amount to criminal defamation . The readership has the right to expect that the facts forming the basis of an article have been verified and that any erroneous piece of information has been corrected . The persons dealt with in the articles are entitled to demand that they be based on correct facts and a person who has been criticised must be given the right to respond . These principles are also to be found in the ethical guidelines adopted within the [ journalistic ] profession .

PERSON conduct does not meet the aforementioned criteria . The surgery performed by [ X ] has been carefully scrutinised without any error [ on his part ] having been established . Regardless of this , PERSON article [ of DATE ] contains a groundless allegation that the surgeon conducted an operation in a drunken state or while suffering from a hangover .

When writing her article [ of DATE ] PERSON had become aware that it was capable of subjecting the surgeon who had operated PERSON to contempt and of damaging his livelihood .

The article [ of DATE ] contains many direct quotations from the pre - trial record ... which had been made public – in particular from the statements of a nurse . The court does not find that this renders PERSON conduct less reprehensible . The large pre - trial investigation material contains elements pro and contra and in the overall assessment , for example in ORG reasons , the statements of the nurse in question have not been given any weight . PERSON selected only those elements that supported her [ own ] opinion without clearly stating that ORG had provided a reasoned opinion and that ORG had made a reasoned decision not to bring charges . In ORG view the statements of the nurse arguably could have been used in an article discussing , at a general level , the alcohol problems existing in hospitals . In the article now in question the nurse 's statements have been reported together with the death of PERSON .

In ORG precedent no . DATE II CARDINAL the defendants were convicted of defamation for not having checked the veracity of information contained in a circular before dispatching it .

ORG finds that PERSON had no reasonable cause to believe that the allegations contained in the article [ of DATE ] were true . [ She ] could and should have verified the facts of the story . [ Her ] negligence in this respect is attributable to her as an intentional offence . ... ”

On CARDINAL DATE ORG ( hovioikeus , hovrätt ) , after a re - hearing , found the applicant guilty of continued defamation “ despite better knowledge ” and by using a printed matter . Her sentence was increased to CARDINAL DATE fines , totalling FIM CARDINAL,CARDINAL ( ORG CARDINAL ) . PERSON was likewise found guilty of negligent abuse of the freedom of the press and his sentence was increased to CARDINAL DATE fines , totalling ORG CARDINAL ( EUR CARDINAL ) .

The appellate court considered that the allegation against ORG which had appeared in the articles had been particularly serious , had defamed his honour fundamentally and had diminished his social status and professional prospects . The articles had been visibly published in a mass medium , where they had been given much print space . In light of the general sentencing practice , the defendants ' conduct as well as the nature and seriousness of the defaming statement , the sentences inflicted by ORG had been too lenient .

The appellate court considered that the applicant 's articles had been so linked together , both by their substance and by the local circumstances they had dealt with , that the CARDINAL alleged forms of defamation had to be considered as CARDINAL single act . The court reasoned , inter alia , as follows :

“ PERSON and PERSON have argued that the subject of patient safety which had been discussed , in particular , in the article of DATE is such an important issue in society that the press must be entitled to express even strong criticism without being prevented from doing so by the criminal law provisions on defamation . [ They ] have further argued that they had strong and plausible grounds for believing that the information published in the articles had been truthful .

Public health care is a societal issue of such magnitude as to entitle the press to express criticism . Given his position as a practising surgeon in a public hospital , [ X 's ] activities were of such public - office nature that he had to accept even strong criticism of his behaviour . That criticism nevertheless had to be appropriate and based on facts . A mass medium may not always be able to obtain a confirmation of the absolute veracity of information to be published . The information to be published must at any rate be sufficiently grounded and all negative allegations or allegations directed against a specific person which may be defamatory when published , must be examined critically . Confirmation of the veracity of the allegations should as far as possible be sought from CARDINAL source . The more serious and hurtful the criticism , the stronger the duty to have the truthfulness of information confirmed .

The information gleaned from the interview with PERSON and the elements selected from the pre - trial investigation record , all of which supported the view that [ X 's ] conduct had been reprehensible , was not such reliable information as to provide PERSON with sufficient grounds for the allegations contained in her article of DATE and for the tone thereof . In addition , PERSON has conceded that at the time of writing that article she had been aware of the conclusion reached by ORG in its opinion as well as of the fact that [ X ] had not been charged . PERSON nonetheless failed to verify in detail the terms of [ the ORG 's ] opinion as well as of the outcome of the pre - trial investigation , even though that could easily have been done . In these circumstances PERSON must be found to have accused , in the articles of DATE and DATE , a person identifiable as [ X ] of an offence as well as of reprehensible conduct , without having verified the allegations and without having had any objectively weighty grounds or likely reasons for considering the defamatory allegations truthful .

[ X ] was not given the possibility of presenting his views in respect of either article . ...

... Even though [ X ] was not named in the articles , the information stated therein was so detailed that [ he ] could nevertheless be recognised as the surgeon whom the articles had concerned . ... ”

On DATE ORG ( korkein oikeus , högsta domstolen ) refused PERSON and PERSON leave to appeal .

On DATE the Deputy Parliamentary Ombudsman ( eduskunnan apulaisoikeusasiamies , riksdagens biträdande justitieombudsman ) responded to a petition by PERSON . She noted , inter alia , that ORG had initiated an inquiry into GPE 's professional conduct in DATE . He had been prohibited from conducting surgeries until DATE , when he had been found capable of resuming his work as a surgeon .

As for ORG decision not to press charges against X the Deputy ORG found that a conclusion to the contrary would have been more justified as suspicions concerning gross maltreatment should preferably be examined by a court of law . She stated that this was not tantamount to a finding that ORG had overstepped his margin of discretion in breach of the law or his duties . In any case the legal successors of PERSON had enjoyed an independent right to bring private prosecution proceedings . The case had been investigated as suspected manslaughter , for which any criminal proceedings had been time - barred already by the time of the petition . While the Deputy Ombudsman still had the right to bring charges for aggravated manslaughter , she concluded that this was no longer appropriate .

DATE , subsection CARDINAL ( CARDINAL/CARDINAL ) of LAW ( Suomen hallitusmuoto , regeringsformen för GPE ) , as in force at the relevant time , stipulated that the private life , honour and home of every person was to be secured . This provision corresponds to LAW ( perustuslaki , grundlagen ; Act MONEY which entered into force on DATE ) .

Article CARDINAL of the LAW stipulated the following :

“ Everyone has the freedom of expression . Freedom of expression entails the right to express , disseminate and receive information , opinions and other communications without prior prevention by anyone . More detailed provisions on the exercise of the freedom of expression are laid down by an Act . Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act .

Documents and recordings in the possession of the authorities are public , unless their publication has for compelling reasons been specifically restricted by an Act . Everyone has the right of access to public documents and recordings . ”

The same provision appears in DATE ( section CARDINAL ) .

According to chapter DATE , section CARDINAL , of LAW , as in force at the relevant time , a person alleging , contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation . If the defamation took place in public or , for example , by means of a printed matter , the sentence could be increased .

Under chapter DATE , section CARDINAL of LAW , as in force at the relevant time , a person alleging , albeit not contrary to his or her better knowledge , that someone had committed an offence was to be convicted of defamation , unless he or she could show probable cause in support of the allegation .

The current chapter DATE , section CARDINAL , subsection CARDINAL of LAW , as amended by LAW no . CARDINAL/CARDINAL , provides that where criticism is aimed at the conduct of another person in his or her political or business activity , public office or function , scientific , artistic or other comparable public activity , and where this criticism clearly does not exceed the limits of acceptable conduct , it shall not be considered defamation within the meaning of subsection CARDINAL .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms);Pecuniary and non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicants were born in DATE , DATE , DATE and DATE respectively and lived in GPE .

The applicants are all pensioners ( retired prior to DATE ) and former employees of ORG ( a banking group which was originally a public entity and was later privatised ) .

NORP Before their privatisation , the Banco di GPE and ORG were subject to exclusive welfare systems according to LAW and CARDINAL of Law no . CARDINAL of DATE . Their employees benefited from a more favourable equalisation mechanism ( meccanismo perequativo ) than that available to persons registered with the general compulsory insurance ( assicurazione generale obligatoria ) . In particular , the DATE pension increase of their pensioners was calculated on the basis of the salary increases of working employees in equal grades of service ( perequazione aziendale ) .

In DATE the PERSON reform provided for the privatisation of public banks such as ORG . It suppressed their exclusive pension regimes , replacing them by integrated ones . It provided for the registration of the ORG employees with a new welfare management system which was part of the general obligatory insurance managed by ORG ( “ ORG ” ) , an NORP welfare entity .

In DATE a further partial pension reform took place .

In DATE a number of former employees who had by then retired , entered into a dispute with ORG about the application of certain provisions . In particular , by means of a wide interpretation of section CARDINAL of Law no . CARDINAL of DATE ( hereinafter Law no . DATE ) and LAW no . CARDINAL of DATE ( hereinafter Law no . DATE ) ( see Relevant domestic law ) the ORG attempted to suppress the system of perequazione aziendale calculated on the basis of the salary increases of working employees in equal grades of service , also in respect of persons who were already retired , limiting the latter ’s perequazione to an automatic one , namely a simple increase according to the cost of living ( perequazione legale ) , which resulted in a less substantial pension .

The latter stand was taken notwithstanding that , according to the applicants , PERSON no . CARDINAL of DATE ( Amato reform ) , particularly its section CARDINAL paragraph CARDINAL and CARDINAL , and section CARDINAL of PERSON no . CARDINAL of DATE ( see Relevant domestic law ) , limited this suppression solely to persons still employed and not persons already receiving a pension . Indeed persons still employed had been given the option of taking up other benefits as agreed by means of corporate collective bargaining .

On an unspecified date a number of pensioners in the applicants’ position instituted civil proceedings contesting the actions of ORG , since as a consequence they were receiving lesser amounts than those they claimed to be entitled to . They highlighted that LAW . DATE and DATE safeguarded any more favourable treatment applicable to persons who had retired prior to DATE . Thus , they requested the court to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws , and to order the ORG to pay the sums it had failed to pay them .

By a judgment of DATE in PERSON and others v. ORG GPE , the domestic court upheld the PERSON arguments , holding that they had a right to remain under the system of perequazione ORG even following the entry into force of PERSON no . CARDINAL/CARDINAL . The same was confirmed in a number of other judgments in various jurisdictions , including ORG ( for example , judgments LAW . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) and more specifically ORG in its ultimate formation , namely , sitting as a full court ( ORG ) . The latter in its judgment ( no . CARDINAL/CARDINAL ) of DATE upheld the PERSON argument on the basis of the interpretation of PERSON no . CARDINAL/CARDINAL and LAW . CARDINAL and CARDINAL of DATE and DATE respectively , which explicitly made reference to perequazione aziendale , confirming that it had not been abrogated by the DATE laws . The impugned amendments applied solely to persons still employed and not to persons who had retired on or before DATE . In consequence , the contested right was legitimately due to the former ORG employees who had retired by DATE , for the period DATE ( date when a general suspension of pension adjustments ceased ) to DATE ( date when a new suspension of such adjustments started in respect of the Banco di GPE ) .

This interpretation continued to be followed uniformly by all the judges sitting in such cases .

Subsequently , various legislative amendments took place attempting to limit the application of the system of perequazione aziendale . These culminated in the enactment of LAW paragraph CARDINAL of Law no . CARDINAL , which interpreted the relevant law to the effect that retired employees of ORG could no longer benefit from the system of perequazione ORG and made it effective retroactively , with effect from DATE .

In the meantime , section CARDINAL paragraph CARDINAL of Law no . CARDINAL of DATE ( legge finanziaria of DATE ) had definitively suppressed all systems of perequazione aziendale , as from DATE .

Thus , generally the system of pension adjustment according to perequazione ORG had been recognised and remained in force from DATE ( just before the entry into force of the legge finanziaria of DATE ) for other public banking entities that had previously applied a system of perequazione aziendale , except for ORG . In reality , this benefit had already been suspended in respect of the employees of ORG ( and ORG ) with effect from CARDINAL DATE by means of the ORG law . Thus , for the latter ’s employees the system of perequazione aziendale would have applied only from DATE to DATE .

In DATE the applicants instituted proceedings on the lines of the proceedings mentioned above , namely they argued that LAW . DATE and DATE safeguarded any more favourable treatments applicable to persons who had retired prior to DATE . Thus , they requested ORG ) to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws and to order the ORG to pay the sums it had failed to pay them .

The applicants expected a favourable outcome in view of the then applicable case - law . Indeed , in accordance with the latter , by a judgment of DATE , ORG ) found in favour of the applicants . It ordered ORG to pay the outstanding amounts with inflation increases and legal interest to run from DATE .

On appeal , by a judgment of DATE , ORG confirmed the first - instance judgment upholding the applicants’ right to be covered by the system of perequazione aziendale , however only for the period from DATE ( date when a general suspension of pension adjustments ceased ) to DATE ( date when a new suspension of such adjustments started in respect of the Banco di GPE ) .

The Banco di GPE appealed .

By a judgment ( no . PERSON ) of DATE deposited in the relevant registry on DATE ORG reversed the lower courts’ judgments and found against the applicants , ordering the costs of the CARDINAL court instances to be paid equally between the parties . ORG upheld the ground of appeal that ORG could not have taken account of PERSON no . CARDINAL - 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 ORG ) . Indeed , PERSON no . CARDINAL was enacted to resolve the matter as to whether Articles CARDINAL and CARDINAL of Law no . CARDINAL/CARDINAL applied only to employees still in service or also to retired pensioners , and provided that as from DATE onwards a perequazione legale ( increase according to the standard of living ) had to apply to “ all ” pensioners , irrespective of their date of retirement .

ORG rejected a claim of unconstitutionality in so far as this interpretative law had retroactive effects impinging on the principle of legal and judicial certainty . In this respect it referred to previous ORG judgments which held that the legislator could impose norms specifying the meaning of other norms in so far as the meaning was one of the options emanating from the original text and in conformity with the principle of rationality .

NORP In DATE , in CARDINAL different civil cases , ORG referred the matter to ORG considering that paragraph CARDINAL of Law no . CARDINAL 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 visàvis 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 ORG .

By a judgment filed in the registry on DATE , ORG upheld the legitimacy of PERSON no . CARDINAL . It considered that the impugned law was an interpretative norm to the provisions of law no . DATE which eradicated perequazione aziendale for all pensioners , irrespective of their date of retirement . Indeed , the interpretative nature of the norm was evident since it had confirmed one of the possible meanings of the original DATE text , which had also been upheld in some jurisprudence . The impugned law had been reasonable because it aimed to achieve recognition of an equal and homogenous treatment of all pensioners under the current integrative regimes . Moreover , this law had not augmented contentious proceedings since it had rendered their outcome foreseeable . As to the other inconveniences mentioned by ORG , it considered that these arose from a random number of circumstances and was not sufficient to consider the norm unconstitutional . It further considered that the legislator could enact interpretative laws , once they were based on CARDINAL of the possible meanings of the original text even if there had been consistent jurisprudence about the matter , and this did not affect the role of ORG .

Law no . CARDINAL of DATE , in so far as relevant , reads as follows :

Section CARDINAL

“ Employees of public banks will remain subject to the provisions in force on DATE of the entry into force of the present law , up to the renewal of the national collective bargaining contract applicable to the relevant category or up to the stipulation of a new additional corporate contract .

Section CARDINAL

The foregoing is without prejudice to the said employees’ acquired rights , effects of special laws or laws pertaining to the original nature of the relevant public entity . ”

Sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE , in so far as relevant , read as follows :

Section CARDINAL

“ ( CARDINAL ) The pension rates to be paid by the special management system are subject to automatic equalisation of the compulsory general insurance .

( CARDINAL ) Those entitled to pensions or other insurances ( in accordance with paragraph CARDINAL ( ( registration with ORG of bank employees ) ) retain their right to the more favourable global welfare treatment as provided for by the obligatory invalidity , old - age and ORG insurance as provided in the following Article .

Section CARDINAL

( CARDINAL ) ... is made without prejudice to a more favourable global welfare payment as provided for by the compulsory invalidity , old age and survivors insurance ... which remains applicable .

( CARDINAL ) The difference between the global welfare payments mentioned in paragraph CARDINAL ( tempo per tempo determinato ) and the pension , or rate of pension , to be covered by the special management system ( according to paragraphs CARDINAL and CARDINAL ) , as increased by automatic equalisation , is to be paid by the employer . ”

Section CARDINAL paragraph CARDINAL of Law no . CARDINAL/CARDINAL delegated to the Government the enactment of the relevant law in accordance with the following principles , which in so far as relevant read as follows :

“ ( p ) the principles and criteria mentioned above ( ... ) apply to employees as mentioned in LAW no . CARDINAL ( persons in employment on DATE ) ”

Section CARDINAL paragraphs CARDINAL and CARDINAL , of PERSON no . CARDINAL/CARDINAL , in so far as relevant , reads as follows :

“ ( CARDINAL ) Sections CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , and CARDINAL apply with respect to supplementary company regimes with which the employees as mentioned in section CARDINAL of Law no . CARDINAL ( persons in employment on DATE ) are registered .

( CARDINAL ) NORP to pension payments as a result of paragraph CARDINAL weigh upon the global sum ( in accordance with section CARDINAL of Law no . CARDINAL ) unless otherwise agreed through collective bargaining . ”

Section CARDINAL paragraph CARDINAL of Law no . CARDINAL ( 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 :

“ In order to extinguish the contentious judicial litigation relative to payments corresponding to each category of pensioners already registered under equivalent welfare regimes , by means of a full recognition of an equal and homogenous payment to all pensioners registered with the supplementary regimes in force , section CARDINAL ( CARDINAL ) ( p ) of PERSON no . CARDINAL of DATE and LAW no CARDINAL of DATE , applies to the global payment received by the pensioners in accordance with LAW no . CARDINAL of DATE . The relevant expense is to be borne by the obligatory general insurance . ”