TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): legge, lo decide il giudice in modo discrezionale e arbitrario, diversamente dalle misure di sicurezza che sono previste dal codice penale che invece in ben 52 articoli descrivono per filo e per segno in modo specifico e tassativo tutti i criteri soggettivi e oggettivi di applicazione di queste misure.
AP1 (Applicant): Ecco qual è la differenza tra le misure di sicurezza che riguardano le persone già condannate e che probabilmente non hanno avuto un effetto risocializzante completo e quindi necessitano di ulteriori controlli anche dopo la condanna e le persone sottoposte a misure di prevenzione che invece sono persone genericamente soltanto sospettate di poter eventualmente in futuro commettere reati. E da questa distinzione nasce la confusione che dal
AP1 (Applicant): 1956 ad oggi investe persino la Suprema Corte di Cassazione italiana a proposito della natura giuridica delle misure di prevenzione.
AP1 (Applicant): Inizialmente non sapendo dove collocarle perché non erano nel codice penale ma erano nelle leggi speciali si diceva che avevano una natura amministrativa. Successivamente si è cristallizzata la giurisprudenza nel
AP1 (Applicant): sostenere che siano per analogia assimilabili alle misure di sicurezza.
AP1 (Applicant): Ma a che cosa è servito in concreto affermare che per analogia sono equivalenti alle misure di sicurezza? E' servito a poter adoperare, a poter
AP1 (Applicant): violare il principio di retroattività della legge penale. Perché mentre per la
AP1 (Applicant): legge penale vale il principio di irretroattività, per le misure di sicurezza invece è stabilito il principio di applicazione secondo il testo vigente nel momento in cui esse vengono decise. E questo aspetto è
AP1 (Applicant): diventato gravissimo soprattutto oggi, allora quando le nuove novelle normative che riguardano le misure di prevenzioni patrimoniali ad esempio hanno espressamente stabilito che le misure di prevenzioni patrimoniali si applicano anche indipendentemente dall'accertamento della pericolosità della persona che le deve subire. Questo ha portato la Corte di Cassazione a
AP1 (Applicant): sentenziare che se così è, se cioè sono sganciate dalla pericolosità del soggetto, non si può più applicare il principio di retroattività e quindi è illegittima secondo una giurisprudenza della Corte di Cassazione la normativa ultima che riguarda l'applicabilità delle misure di prevenzioni patrimoniali ed è stata nuovamente sollevata a questioni di costituzionalità per questo motivo che deve essere ancora decisa. Quindi quando ci si chiede qual è la natura delle
AP1 (Applicant): misure di prevenzione anche ai fini delle valutazioni in ordine all'applicabilità dell'articolo 6 della convenzione non si può rispondere, signor Presidente, signori giudici, perché in Italia c'è la confusione totale sulla reale natura di queste misure. Ognuno sostiene quello che vuole a seconda dello scopo che vuole
AP1 (Applicant): raggiungere. Se vuole che si applichino retroattivamente sostiene che sono
AP1 (Applicant): misure amministrative, se invece non vuole che si applichino retroattivamente sostiene che sono misure penali. E perché sono misure penali? Perché violano e
AP1 (Applicant): restringono la libertà personale dei cittadini e lo dice anche la Corte Costituzionale in tutte le sue sentenze fino alle ultime, fino anche a quelle prodotte dal Governo, e restringe i diritti patrimoniali fondamentali dei cittadini con i sequestri e le confischi. Il significato, altra domanda, della legge
AP1 (Applicant): delega e del nuovo testo unico. Il Governo aveva prodotto il nuovo testo
AP1 (Applicant): unico, noi abbiamo prodotto la legge delega. Il significato è che nonostante
AP1 (Applicant): la Corte Costituzionale avesse ripetutamente indicato al legislatore la necessità di stabilire dei criteri di fatto precisi per l'applicazione delle misure di prevenzione e nonostante il legislatore delegante, il Parlamento, aveva dato al Governo il potere di stabilire in modo nuovo rispetto a passato questi criteri di fatto, il Governo non lo ha fatto. Questo è il
AP1 (Applicant): significato. E' stato violato l'articolo 3.5 della legge delega in cui si obbligava
AP1 (Applicant): il Governo a modificare la normativa precedente e a stabilire invece con presupposti chiaramente definiti i criteri soggettivi e oggettivi di imputazione delle misure di prevenzione. Il Governo invece di riscrivere la norma
AP1 (Applicant): e renderla costituzionale l'ha semplicemente copiata. Invece di fare
AP1 (Applicant): un'opera nuovamente creativa della normativa e adeguatrice ai tempi e ai principi sacrosanti della libertà della Costituzione e della Convenzione Europea, ha fatto soltanto un collage delle disposizioni precedenti e le ha ricopiate cambiando il nome da legge e adesso si chiama testo unico.
AP1 (Applicant): Questa è l'unica differenza.
Josep Casadevall (JudgeP): Maître Conticchio, vous avez déjà dépassé votre temps.
Josep Casadevall (JudgeP): Je vous prie d'aller vers la fin.
AP1 (Applicant): ringrazio, sono il Presidente
Josep Casadevall (JudgeP): Pardon, je n'entends pas.
GR1 (Government): Pardon.
GR1 (Government): Alors, je me permets seulement d'observer que dans la réplique de Maître Conti, qui en a pris en considération des dispositions qui font partie des mesures patrimoniales, pas personnelles.
GR1 (Government): Donc, pour les mesures patrimoniales, ce n'est pas question ni de l'article du protocole 4 ni moins de l'article 5 de la Convention.
GR1 (Government): Seulement ça.
Josep Casadevall (JudgeP): Merci Madame. Je rappelle encore une fois, les deux parties disposent de deux semaines pour faire la complétion, pour compléter ou pour avoir la possibilité de répondre à certaines questions qui n'ont pas pu l'être sur le champ.
Josep Casadevall (JudgeP): Merci à vous.
Josep Casadevall (JudgeP): Nous avons arrivé au terme de l'audience.
Josep Casadevall (JudgeP): Je remercie les comparants qui ont assisté la Cour par leurs interventions et leurs réponses.
Josep Casadevall (JudgeP): La Cour va maintenant délibérer sur la recevabilité et le fond de l'affaire.
Josep Casadevall (JudgeP): L'arrêt sera rendu ultérieurement.
Josep Casadevall (JudgeP): Les parties seront informées de la date du prononcé.
Josep Casadevall (JudgeP): L'audience est levée.
Linos-Alexandre Sicilianos (JudgeP): I declare open the public hearing on the merits in the case of Albert and others versus Hungary.
Linos-Alexandre Sicilianos (JudgeP): The application was lodged with the court on 10 January 2014 under Article 34 of the Convention by Mrs. Józsefné Albert and 240 other Hungarian nationals.
Linos-Alexandre Sicilianos (JudgeP): The application was allocated to the fourth section of the court pursuant to Article 52 paragraph 1 of the Rules of Court.
Linos-Alexandre Sicilianos (JudgeP): The application was communicated to the government on 12 September 2014.
Linos-Alexandre Sicilianos (JudgeP): On 4 April 2017, a chamber of the fourth section declared the case admissible and on 29 January 2019, it delivered its judgment in the case.
Linos-Alexandre Sicilianos (JudgeP): On 29 April 2019, the applicants requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and the panel of the Grand Chamber accepted the request on 24 June 2019.
Linos-Alexandre Sicilianos (JudgeP): The respondent government are represented by their agent, Mr. Zoltán Tallódi, assisted
Linos-Alexandre Sicilianos (JudgeP): by their co-agent, Mrs. Mónika Weller, and Mr. Tamás Kende and Mr. Pál Sonnevend, advisors.
Linos-Alexandre Sicilianos (JudgeP): The applicants are represented by Mr. Péter Gárdos, counsel, and by Mr. Richard Mosonyi,
Linos-Alexandre Sicilianos (JudgeP): Mr. Dániel Karsai, and Mrs. Orsolya Csaba, advisors.
Linos-Alexandre Sicilianos (JudgeP): I also welcome judges of the Supreme Court of Latvia and of the Supreme Court of Justice of the Republic of Moldova who are on a study visit to the court.
Linos-Alexandre Sicilianos (JudgeP): Mr. Gárdos for the applicants will speak first and then Mr. Tallódi for the government.
Linos-Alexandre Sicilianos (JudgeP): I call Mr. Gárdos.
AP1 (Applicant): it is our privilege to submit our pleadings today on behalf of the 234 applicants.
AP1 (Applicant): The applicants were shareholders of Kineji Bank and Mohachi Bank.
AP1 (Applicant): I will refer to them as the banks.
AP1 (Applicant): The legal predecessors of the banks were established 60 years ago as savings cooperatives by the local community, primarily to provide basic financial services to residents and later to finance local businesses.
AP1 (Applicant): The assets of the savings cooperatives consisted typically of relatively small investments of members, such as the applicants in this case, who had a direct say in the operation of the savings cooperatives.
AP1 (Applicant): The applicants were not simply investors in the predecessors of the banks, but they actively took part in the operation.
AP1 (Applicant): Following the transformation of the country into a market economy in 1990, they began accumulating capital in order to transform their cooperatives into banks.
AP1 (Applicant): The transformation took place in 2006 and 2008.
AP1 (Applicant): In July 2013, the Hungarian Parliament passed a bill in an extraordinary two-day procedure on the forced integration of the savings cooperatives without any prior consultation of those affected by the legislation.
AP1 (Applicant): The Integration Act severely restricted the rights of the shareholders and deprived the banks and the savings cooperatives of their independence.
AP1 (Applicant): They became nothing more than branches of the savings bank, the central bank of the integration.
AP1 (Applicant): By the time the Integration Act entered into force, as a direct consequence of their transformation, the banks no longer belonged to the savings cooperative sector.
AP1 (Applicant): They no longer fell under the rules specific to the savings cooperatives, but under the rules pertaining to banks, the only tie they had with the savings cooperative sector was that they remain members in the voluntary institution protection scheme of the savings cooperatives, because the scheme asked them to remain members for the sole reason that the funds contributed by the predecessors of the banks would have been missing from the scheme.
AP1 (Applicant): The applicants always felt some responsibility for the savings cooperative sector, and as a result, they undertook to contribute financial resources to the operation of the scheme.
AP1 (Applicant): They never imagined that this act of pure generosity would later be the reason why their banks will fall under a forced integration regime, which severely limited their rights as shareholders, and which ultimately forced them to sell their lifelong investments.
AP1 (Applicant): We explained in our previous submissions how the Integration Act affected the applicants.
AP1 (Applicant): To avoid repetition, I would only highlight the following facts concerning the restrictions introduced by the Integration Act.
AP1 (Applicant): First, the Integration Act forced the applicant to approve new uniform articles of association.
AP1 (Applicant): The articles of association determines the competence of the bodies of a company.
AP1 (Applicant): As this document is adopted by the general meeting, the shareholders have the power to take control over any issue.
AP1 (Applicant): The Integration Act eliminates this power of the general meeting.
AP1 (Applicant): Second, the Integration Act required the approval of the integration organization and the savings bank for every decision of the general meeting.
AP1 (Applicant): For the sake of simplicity, I will refer to the integration institution and the savings bank as the integration institutions.
AP1 (Applicant): The decisions requiring approval include the approval of the annual account, the election of the management, and the decision on the payment of dividend.
AP1 (Applicant): And finally, the Integration Act entitled the integration institutions simply to suspend in certain circumstances the applicant's voting right.
AP1 (Applicant): The Integration Act introduced further rules that were very onerous to the applicants.
AP1 (Applicant): I will name three examples.
AP1 (Applicant): First, contrary to the government's arguments, the conditions based on which the integration institutions were allowed to exercise their rights were not defined.
AP1 (Applicant): By way of example, the Integration Act contained no conditions regarding the content of the article of association or the approval of the annual reports of the banks.
AP1 (Applicant): Whereas in other cases, the conditions were to be set out in rules defined by the integration institutions themselves.
AP1 (Applicant): Second, the Integration Act provided that the sanction of noncompliance is the exclusion from the integration, which practically would have meant the withdrawal of the bank's licenses and the liquidation of the banks.
AP1 (Applicant): Liquidation inevitably leads to a significant loss for the shareholders.
AP1 (Applicant): The figures relating to Kineji Bank, referred to by the government in its observations, support this as it shows that in case of liquidation of Kineji Bank, the value of the bank would have been minus 1.5 billion forints.
AP1 (Applicant): And third, the government argues that if the applicants believed that remaining in the integration was not beneficial to them, they could have simply left the integration.
AP1 (Applicant): However, the government fails to mention that the condition for leaving the integration was that the shareholders pay an additional 3 to 4 billion forint as capital to the banks.
AP1 (Applicant): For the sake of comparison, this amount exceeds the funds the predecessors of the banks accumulated over 50 years.
AP1 (Applicant): This condition, therefore, in practice, made an exit impossible.
AP1 (Applicant): What was the effect of these rules?
AP1 (Applicant): Investors typically invest in companies because they believe that the company is managed properly, therefore they believe that the company will pay dividend to its shareholders and the value of their shares will be maintained.
AP1 (Applicant): They know, furthermore, that if the company is not managed properly, the management will be hosted and replaced by better managers and that they can easily exit their investments by selling their shares.
AP1 (Applicant): The Integration Act effectively extinguished these rights in relation to the banks.
AP1 (Applicant): As a consequence of the legislation, the shareholders no longer had the unrestricted right to pay dividend to elect the management of the bank.
AP1 (Applicant): It was clear to any potential investor that even the remaining limited shareholder rights can further be restricted.
AP1 (Applicant): And finally, that the integration will lead to the termination of the banks and the creation of a new commercial bank.
AP1 (Applicant): It is easy to understand, therefore, that under such circumstances, no investor decided to enter the market, nobody wished to acquire the applicant's shares.
AP1 (Applicant): Finally, when it became clear that the applicants will not approve the final merger of the savings cooperatives that finally took place on 31 October 2019, an exit possibility was finally provided to the applicants.
AP1 (Applicant): As the applicants' rights were severely infringed and they otherwise would not have been able to leave the forced integration, the applicants had no other option but to accept the offer.
AP1 (Applicant): As this Court stated several times, not only specific measures, but a law itself may also violate the Convention, irrespective of its application.
AP1 (Applicant): The subject matter of this procedure is, therefore, not one or more individual acts of the integration institutions.
AP1 (Applicant): The applicants claim that the Integration Act itself infringed the rights of the applicants.
AP1 (Applicant): We claim, let me now turn to the question of victim status.
AP1 (Applicant): We claim that the Integration Act infringed the rights of the applicants as it restricted their voting rights, thereby fatally distorting the market in the shares.
AP1 (Applicant): And as a consequence, the applicants' right to sell was also infringed.
AP1 (Applicant): To better understand how the restrictions of the Integration Act infringed the rights of the shareholders, it is useful to start by explaining that the general meeting of the company has a dual role, and therefore, its character is also twofold.
AP1 (Applicant): On the one hand, this is the supreme organ of the company responsible for making decisions, whereas on the other hand, it is also the forum of the shareholders where they discuss and decide on issues of common interest where they cast their vote, through which they exert their influence on the operation of the company.
AP1 (Applicant): Let me now turn to the right to vote.
AP1 (Applicant): The right to vote means that the shareholders can participate in the meeting and freely decide whether to support a proposal or not, knowing that their vote shall have an effect on the company.
AP1 (Applicant): The government's argument seems to suggest that forcing the shareholder to support a proposal by threatening with sanctions or overwriting the decisions of the shareholders does not affect the individual right of the shareholder.
AP1 (Applicant): We believe that this is an extremely formalistic understanding of the shareholder's voting right, which is an essential element of the shareholder rights.
AP1 (Applicant): By way of analogy, it is useful to recall that a citizen's right to vote at a national election is violated not only if the citizen is not allowed to cast a vote, but also if the vote cost is not taken into account, or if the citizen is forced to vote in a particular way.
AP1 (Applicant): In such a case, although the citizen could still go into the polling booth and cast her vote, the citizen's right is still restricted.
AP1 (Applicant): As this court formulated it in the Risa and others versus Bulgaria case, the vote of each elector must have the possibility of affecting the composition of the legislator, otherwise the right to vote, and ultimately the democratic order itself would be devoid of substance.
AP1 (Applicant): I argue that the above circumstances are analogous to the present case.
AP1 (Applicant): In the field of business entities, if the general meeting of the company becomes in many respects important, the shareholder's right to participate and vote in the general meetings becomes a mere formality.
AP1 (Applicant): Such a situation therefore infringes the property rights of the shareholders, irrespective of the fact whether or not the particular shareholder was a controlling shareholder.
AP1 (Applicant): The infringement of the applicant's right to vote, as I explained, led to the result that the shares lost their value.
AP1 (Applicant): Thus, the shareholder's right to sell was also infringed.
AP1 (Applicant): Such loss is not the consequence of unsuccessful operation of the banks.
AP1 (Applicant): Rather, these losses were foreseeable, inevitable, and might also add intended consequences of the restrictions introduced by the Integration Act.
AP1 (Applicant): We believe therefore that the Integration Act violated the rights of the applicants as shareholders of the bank.
AP1 (Applicant): In case the court would find that the rules of the Integration Act that I referred to previously only infringed the rights of the banks, but not the applicants, we submit that in this case, the court should lift the corporate wheel.
AP1 (Applicant): Although we are aware that a company's legal personality could be disregarded only in exceptional cases, we argue that in the present case, there are grave facts which justify the lifting of the corporate wheel.
AP1 (Applicant): First, the applicants own almost 100% of the shares of the banks.
AP1 (Applicant): This court has already acknowledged that 90% shareholding may have a relevance relating to the piercing of the corporate wheel.
AP1 (Applicant): The question in this case is therefore whether this court finds a difference between one shareholder holding 90% or several applicants having the same 90% relevant.
AP1 (Applicant): We argue that this difference is irrelevant.
AP1 (Applicant): The applicants who together hold a very significant stake in the company whose rights are infringed should also be provided with the right to turn to this court.
AP1 (Applicant): The second exceptional circumstance is that, although theoretically the banks would have been able to apply to the court, it is easy to understand why this could not reasonably have been expected from the banks.
AP1 (Applicant): The integration institutions drew the management of the banks under strict control.
AP1 (Applicant): The management of the banks was criticized by the integration institutions for resisting and obstructing the procedure established by the Integration Act, in particular for seeking remedy at the Hungarian Constitutional Court.
AP1 (Applicant): The integration institutions could easily have forced the management to withdraw their application.
AP1 (Applicant): In this regard, I recall the case of Credit and Industrial Bank versus the Czech Republic, in which the court applied a strict test of impossibility established in the Agrotechs in case in a more practical way, emphasizing the need to interpret Article 34 of the Convention in a more practical and effective way, as opposed to purely theoretical and illusory guarantee of the rights.
AP1 (Applicant): If the court under the present circumstances required that the complaint is filed by the banks and not the applicants, the shareholders would be left without effective legal protection.
AP1 (Applicant): Now I shall briefly turn to the government's argument regarding the question by the applicants have not lost their victim status.
AP1 (Applicant): According to the established practice of the court, an applicant is deprived of the victim status only if the national authorities have acknowledged, either expressly or in substance, the breach of the Convention, and then afforded redress for the breach.
AP1 (Applicant): In the present case, it is undisputed that neither of these conditions is met, which in itself shows that the applicant's victim status is not lost.
AP1 (Applicant): For the sake of completeness, I would also respond in some detail to the allegations of the government.
AP1 (Applicant): The first argument of the government is that the victim status was lost as the Integration Act is no longer applicable to the applicants.
AP1 (Applicant): This argument fails to recognize, however, that before the applicants were provided with an exit right, they had to endure the violation of their rights for several years, and furthermore, they also had to accept that they ceased to be owners of the banks that they themselves or their ancestors established, and for which they have made sacrifices.
AP1 (Applicant): The second argument of the government is that the consideration that the applicants received provided adequate redress for them.
AP1 (Applicant): The applicants certainly accept that the amounts received should be taken into account when deciding about the amount of the just satisfaction.
AP1 (Applicant): These amounts, however, do not have any effect in relation to their victim status or the legality of the impugned legislation for the following reasons.
AP1 (Applicant): The government notes that the fact that the bank's valuation for 2013 exceeded zero shows that the applicants falsely argue that their shares lost their value.
AP1 (Applicant): The government's argument is clearly wrong.
AP1 (Applicant): The valuation was prepared by the applicants for the purposes of the present procedure.
AP1 (Applicant): The valuation, therefore, does not take into account the effects of the Integration Act itself.
AP1 (Applicant): Consequently, the fact that the valuation showed that the bank's head value does not in any way support the government's arguments.
AP1 (Applicant): The government further argues that the 2.1 billion