No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1953 and lives in Vienna.

M.K., the applicant’s son born in 1981, was taken to the Otto Wagner Hospital on 19 March 2010 suffering from an acute episode of paranoid schizophrenia. The Otto Wagner Hospital is a public institution of the City of Vienna specialising in neurology, orthopaedics, psychiatry and pulmonology. It is situated on a vast area outside the city center in the west of the green-belt of Vienna, consisting of some 26 hospital buildings with annexes, a church, a museum, a theatre and a large park.

In a decision of 7 April 2010, the Fünfhaus District Court (Bezirksgericht) ordered M.K.’s involuntary placement in the psychiatric unit of that hospital pursuant to section 8 of the Hospitalisation Act (Unterbringungsgesetz).

On 12 May 2010 M.K. failed to return from an authorised walk in the hospital grounds. He had escaped from the premises and died after jumping in front of a subway train.

Subsequently, in August 2010 the applicant brought a civil action in the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) under the Official Liability Act (Amtshaftungsgesetz) against the City of Vienna (Stadt Wien) as the authority responsible for the hospital, seeking compensation of 20,000 euros (EUR) plus interest in respect of nonpecuniary damage.

She stated that in 2006 and 2007 her son had already undergone inpatient treatment for paranoid schizophrenia at the Otto Wagner Hospital and the Vienna General Hospital (Allgemeines Krankenhaus Wien). Hospitalisation had been ordered on 19 March 2010 because M.K. had posed a danger both to himself and others. He had attacked a chewing gum dispenser with a sledgehammer and appeared to be utterly confused when the police arrived on the scene. The expert Dr P., who was called to assess M.K.’s mental state, diagnosed him with paranoid schizophrenia. Because of M.K.’s delusional behaviour, there was a risk that he would harm himself or others. The expert concluded that M.K.’s mental state required him to be placed in a closed psychiatric institution.

However, on 25 and 29 March 2010 M.K. managed to escape from the closed ward of the Otto Wagner Hospital and was found and brought back only after a search conducted by the police and the hospital staff. On 12 May 2010 he escaped from the open ward to which he had been transferred in the meantime, and committed suicide by jumping in front of a subway train.

The applicant claimed that she had suffered a massive shock as a result of her son’s death. Before his involuntary placement in the hospital, M.K. had lived with her in the same household and they had had a very close relationship. The applicant claimed that as a result of his death she had suffered from depression and insomnia and had been seeing a psychotherapist since June 2010. Nonetheless, her mental state had not improved since.

The fact that her son had been able to escape from the hospital premises led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because M.K.’s behaviour had been unpredictable, he should have been under strict supervision. In the circumstances, and especially because he had managed to escape twice before, restriction of his freedom of movement within a closed ward was proportionate, necessary and adequate. Furthermore, such restriction should have included a degree of supervision by the hospital staff. The contract for M.K.’s treatment had included duties of protection and care. There had been signs of suicidal thoughts on the patient’s part, and the hospital staff should therefore have prevented him from leaving the ward. However, the necessary diligence had not been exercised. For these reasons, the applicant claimed that the City of Vienna had been at fault and was therefore responsible for the non-pecuniary damage she sustained.

The City of Vienna asked the Vienna Regional Civil Court to dismiss the applicant’s claim. It argued that M.K.’s involuntary placement in the psychiatric institution on 19 March 2010 had been necessary as he had not been aware of his mental illness and had refused to be treated. At the time, he had been utterly confused and it had not been possible to reason with him. Because of the threat he posed to himself and others, he had repeatedly had his freedom of movement restricted whilst in hospital and had had to be medicated parenterally. On 25 March 2010 he had left the acute station without permission and went to his parents’ place. When the police and the ambulance brought him back to the hospital, he had had to be sedated intravenously because of the highly psychotic state he was in. On 29 March 2010, only four days later, he escaped again from the acute station, but was apprehended by the hospital’s security staff on the premises of the hospital. However, from 2 April 2010, M.K.’s attitude changed and he became willing to take oral medication. From that day on, his freedom of movement was no longer restricted. He had appeared well-adjusted and friendly. In view of the progress in his treatment, and as he appeared more reasonable and able to abide by agreements, he had been transferred from the acute station to the subacute ward on 20 April 2010. However, he had then succumbed to socalled “dynamic exhaustion” (dynamische Entleerung), which manifested itself in a noticeable loss of drive and the desire for a quiet environment. The hospital staff had therefore tried to animate M.K. through occupational therapy and recreational walks in the hospital grounds, which − on the basis of a well-documented medical order − he had been allowed to take on his own as of 21 April 2010. This medical order had taken into account the fact that M.K. had twice before escaped from his ward. Thereafter, however, M.K. had continued to receive treatment for over three weeks and there had been a considerable improvement in his condition. Moreover, he had been made aware that he was not allowed to leave the hospital premises and had to notify the staff before going out for a walk and again upon his return. He had also been permitted to leave the building to smoke a cigarette. The hospital had maintained detailed documentary records of his medical treatment and progress. There had been no indication of suicidal thoughts. However, on 12 May 2010 at 5.15pm the doctor on duty was informed by the hospital staff that the applicant’s son had not returned from an authorised walk in the hospital grounds and had apparently taken his personal clothing with him. A search operation had immediately been initiated on the premises and at the same time the police had been asked to search for him. At approximately 9pm the police informed the hospital that M.K. had been killed in a subway train accident at around 4 pm.

The City of Vienna submitted that under the provisions of the Hospitalisation Act and in keeping with current practice in the treatment of mentally ill patients, “open” psychiatry was the norm and restriction of a patient’s freedom of movement was permissible only in cases of absolute necessity and within the bounds of proportionality. In the present case, by 12 May 2010 restriction of the physical movement of the applicant’s son (known as “fixation”), and/or the spatial restriction of his movement to the confines of a psychiatric bed, or his permanent supervision, were no longer medically indicated, nor would such measures have been reasonable or adequate. On the contrary, the lack of any indication of suicidal thoughts on the part of M.K. would have rendered any further restriction of his freedom of movement unlawful under the Hospitalisation Act.

During the oral hearing of 3 September 2012 the applicant reduced her claim to 15,000 EUR plus 4% interest per annum.

On 30 November 2012 the Vienna Regional Civil Court granted the claim. It found that even shortly before his death on 12 May 2010, it could be assumed that M.K. still posed a threat to himself and others, in particular because he still suffered from the delusional idea that he was a different person and did not recognise his parents as his own. Self-harming behaviour could occur outside the hospital environment, due to overstimulation, even in patients who had shown progress after a psychosis. It was no longer possible to determine whether the applicant’s son had jumped in front of the subway train in order to deliberately commit suicide, or whether he followed a spontaneous impulse or a delusional thought to that end. In any event the hospital should have made sure that he was not able to leave the hospital grounds, even if therapeutic walks were medically indicated and permissible in the circumstances.

From a legal perspective, the Regional Civil Court affirmed that, as the authority responsible for the Otto Wagner Hospital, the City of Vienna could be held accountable for any culpable action or omission by its organs or officials, pursuant to section 1 of the Official Liability Act. At the material time, the applicant’s son had been lawfully hospitalised by a decision of the Fünfhaus District Court of 7 April 2010, which remained valid until 21 May 2010. Sections 3 and 33 of the Hospitalisation Act in force at the time provided that, in cases where hospitalisation had been ordered, it was also necessary to guard against threats potentially posed by the patient. Accordingly, the hospital was obliged to ensure restriction of the patient’s freedom of movement in order to protect against potential damage. In the instant case, M.K. was allowed to take walks on the hospital premises because such walks were medically indicated. However, no measures were taken to ensure that he respected the restrictions on his freedom of movement. There was no effective supervision of his walks or their duration. By disregarding its duty of supervision, the hospital had implemented the Hospitalisation Act incorrectly. It was immaterial that the applicant’s son had not shown any signs of suicidal tendencies because the hospitalisation was originally effected because of the danger he posed to himself and to others. Therefore, even if he did not pose a threat to himself anymore, the requirement for hospitalisation was still valid because of the threat he posed to others. In the instant case, the lack of supervision of M.K. resulted in the applicant having to suffer the shock of the death of her son. The court concluded that the civil claim was justified and granted the applicant EUR 15,000 plus interest by way of compensation in respect of non-pecuniary damage.

The City of Vienna appealed, claiming that the court had wrongly assessed the evidence, that its finding of facts was incorrect, and that it had wrongly interpreted the law.

On 26 March 2013 the Vienna Court of Appeal (Oberlandesgericht) granted the defendant’s appeal and dismissed the applicant’s claim. In its view, there had been no causal link between the wholly unexpected suicide of the applicant’s son and the alleged dereliction of the hospital’s duty of supervision under the Hospitalisation Act. Although it was stated in the hospital admission report that there was a danger of M.K.’s putting himself and others at risk due to his disoriented state, it was also explicitly mentioned that he had no suicidal thoughts. According to the expert opinion by Dr P of 25 May 2012, the continuation of M.K.’s hospitalisation on 12 May 2010 was indicated only because of the threat he posed to others, in particular to his mother, but no longer to himself. This was the reason why his freedom of movement at that point had been restricted to the hospital premises rather than just the closed ward. The court found that in the light of the improvement in his symptoms, it was not unusual that he had been allowed to take walks for therapeutic purposes, even if it might have been advisable to allow these walks only when accompanied by hospital staff.

The Court of Appeal further affirmed that there had been no indication of self-harm during M.K.’s entire stay at the hospital. He had not voiced suicidal thoughts or undertaken any actions of a suicidal nature. It could not be established whether his jumping in front of the subway train was a suicide which he had planned even before he left the hospital premises, or whether it had been a spontaneous act of self-harm resulting from his psychosis. Naturally, M.K. would not have been able to commit suicide if he had been prevented from leaving the hospital grounds. Even with patients whose psychotic symptoms had improved, the phenomenon of overstimulation could occur if they left the therapeutic environment, whereas such a situation was much less likely to occur within the confines of a hospital. Section 3 § 1 of the Hospitalisation Act referred, as its purpose, only to the protection of the life and limb of the mental patient himself and third parties. The behaviour of M.K. had not been foreseeable because there had no longer been any indication of possible self-harm at the material time and his action was therefore not attributable to the hospital. The fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment.

The applicant appealed, arguing that at the time when M.K. had committed suicide, the initial decision by the Fünfhaus District Court on his hospitalisation had still been valid and was based on the assessment that he posed a danger to himself and others because of his paranoid schizophrenia. No new expert opinion had been obtained, and the hospital had not informed the guardianship court (Pflegschaftsgericht) that the threat of selfharm had ceased to exist. Consequently, the medical indication would still have been a restriction of M.K.’s freedom of movement. By failing to restrict his movement, the hospital had acted contrary to the court decision ordering his hospitalisation.

On 18 July 2013 the Supreme Court dismissed the applicant’s appeal, upholding the legal and factual findings of the Court of Appeal. It added that a lawful implementation of the Hospitalisation Act was possible both inside and outside a closed ward. M.K.’s hospitalisation had therefore not been unlawful, even though he had been placed in the open ward from 20 April 2010. Contrary to the applicant’s line of argumentation, the Otto Wagner Hospital had not had a duty to implement the Fünfhaus District Court’s decision on M.K.’s hospitalisation in a manner which compelled it to restrict his movement. This followed from section 32 of the Hospitalisation Act – according to which a hospitalisation order could be lifted at any time by the head of the institution – and section 33, which stated that restriction of movement was permissible in limited cases only. The District Court’s decision had not defined the extent or duration of any specific restriction of movement. Section 33 of the Hospitalisation Act provided that a restriction of freedom of movement might only be used as an exceptional measure and “last resort”. Also, Articles 3 and 5 of the Convention restricted the permissibility of isolating mentally ill patients. Even within a closed ward, mentally ill patients had to have the widest possible amount of freedom of movement. Only the more restrictive measures under section 33 of the Hospitalisation Act were subject to judicial review.

The Supreme Court also stated that from a therapeutic perspective M.K. had been allowed to take unaccompanied walks because of the improvement in his condition. Moreover, from the time he had been authorised to take these walks, he had always returned without problems. This measure, which had been ordered by the psychiatrist treating him, had therefore been proportionate and necessary pursuant to section 33 of the Hospitalisation Act. In conclusion, the hospital had not acted culpably, for which reason the applicant’s claim under the Official Liability Act was not justified.


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms Maria Sobczyk, is a Polish national, who was born in 1954 and lives in Błażowa.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 20 June 1996 the applicant filed an application with the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with her application for a pension, she submitted, among other documents concerning her son’s health, a medical certificate issued by a specialist doctor on 12 June 1996. The certificate stated that the child (born in 1984) suffered from hypothyroidism (niedoczynność tarczycy) and was in need of the parent’s constant care.

On 1 July 1996 the SSB issued a decision granting the applicant the right to an earlyretirement pension in the gross amount of 308 Polish zlotys (PLN) per month, starting from 25 March 1996.

The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right.

On an unspecified date the SSB reviewed the applicant’s pension application under section 114 (1a) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – “the 1998 Law”).

The SSB requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 11 January 2010 the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care.

On 13 January 2010 the SSB simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 February 2010. By virtue of the second decision, the Board revoked the initial decision of 1 July 1996 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”).

The applicant appealed against the above-mentioned decision divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to her original application for a pension.

On 21 April 2010 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. On the basis of a report on the state of health of the applicant’s child prepared by an expert in endocrinology the court found that the applicant’s son had not required, as of 20 June 1996, a constant care of his mother. It held that the applicant had been rightfully divested of her right to an EWK pension.

On 28 July 2010 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment. It agreed with the first-instance courts’ findings of fact. As regards the reopening of the proceedings, it observed that the SSB had acted in accordance with section 114 of the 1998 Law. It considered that, in the applicant’s case, the proceedings had been reopened because new evidence had been obtained by the authority, namely the documents relating to the course of the child’s medical treatment.

The applicant did not lodge a cassation appeal with the Supreme Court (Sąd Najwyższy).

Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of the Constitutional Court (Trybunał Konstytucyjny) of 28 February 2012 declaring section 114 (1a) of the 1998 Law unconstitutional (see paragraphs 22-27 below).

Social security system

The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012.

By virtue of the law of 20 April 2004 on amendments to the law of 1998 on retirement and disability pensions paid from the Social Insurance Fund and to certain other acts (Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw – “the 2004 Act”), which entered into force on 1 July 2004, a new paragraph 1a was added to section 114 of the law. The amended section 114 of the 1998 Law provided as follows:

“1. The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances, which had existed before issuing the decision and which have an impact on the right to benefits or on their amount, are discovered.

1a. Paragraph 1 applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established.”

On 5 June 2003, before paragraph 1a was added to section 114 of the 1998 Law, the Supreme Court adopted a resolution in which it held:

“A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”

In a judgment given on 21 September 2010 (case no. III UK 94/09) the Supreme Court held that, when applying section 114 (1) of the 1998 Law, the domestic courts should take into account the criteria set out in the Court’s judgment in the Moskal case. They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned. In examining whether the social security authority was allowed to reopen the proceedings, they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted. When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual’s right to a social benefit. Accordingly, where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual, the relevant decision should not be revoked.

In a judgment of 24 March 2011 (case no. I UK 317/10) the Supreme Court reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under section 114 of the 1998 Law should be assessed in the light of the criteria set out in the Court’s judgment in the Moskal case. In this connection the Supreme Court underlined that the European Convention on Human Rights constituted an integral part of the Polish legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the Court.

In a judgment of 5 April 2011 (case no. III UK 92/10) the Supreme Court held that section 114 (1a) of the 1998 Law should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with section 114 (1). If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence, it would have to be considered incompatible with the principle of the rule of law set forth in Article 2 of the Constitution. The Supreme Court considered that its interpretation of the provisions of the 1998 Law was further supported by the principles set out in the Moskal judgment of the Court.

On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1a) of the 1998 Law to be declared unconstitutional. The Ombudsman argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority.

On 28 February 2012 the Constitutional Court held that section 114 (1a) of the 1998 Law was in breach of Article 2 (the principle of the rule of law) and Article 67 § 1 (the right to social security) of the Constitution. It found that, as the provision in question allowed for an unlimited re-assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit, it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution.

Furthermore, the Constitutional Court found that the provision in question did not strike a fair balance between the general interest and an individual’s right to social security under Article 67 § 1 of the Constitution. The court considered that an interference with individual rights guaranteed by Article 67, which pursued the aim of correcting the authority’s own mistake, could only be justified under exceptional circumstances. However, on the basis of the impugned provision the social security authority could, at any time and without any limitations, review the decision concerning a social security benefit by means of re-assessment of the evidence before it.

In the grounds for the ruling the Constitutional Court also referred to the Court’s Moskal judgment. It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings, which had been, however, based on section 114 (1) of the Law 1998 as section 114 (1a) had not been in force at the material time. It further observed that the Court’s judgment had influenced the interpretation of section 114 (1) of the 1998 Law by the Supreme Court (see paragraphs 19-21 above).

Lastly, with regard to the consequences of its ruling, the Constitutional Court noted that the breach of Constitution should be remedied by restoring the state of conformity with the law (wymaga przywrócenia stanu zgodnego z prawem). In that context, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114 (1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision.

On 8 March 2012 the judgment was published in the Journal of Laws of the Republic of Poland (Dziennik Ustaw) and entered into force on that date.

Article 190 of the Constitution, in so far as relevant, provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court,... shall be published immediately.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act...

A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, final administrative decision or ruling on other matters was given, shall be a basis for reopening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.”

(b) Code of Civil Procedure

In accordance with Article 399 read in conjunction with Article 4011 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened, if the Constitutional Court has found that the normative act on the basis of which this judgment was given was incompatible with the Constitution.

Pursuant to Article 407 § 2, a request to that effect shall be lodged within three months from the date on which the judgment of the Constitutional Court has entered into force. Pursuant to Article 408 a request for the reopening of the proceedings must be lodged within five years from the date on which the final judgment has been given, unless the party could not act in the proceedings or was not properly represented.

Under Article 412 § 1 of the Code, a reopened case is to be examined within the limits determined by the grounds for the reopening. According to § 2 of this provision, after a fresh examination of the case, the court may either dismiss the request for reopening, or allow it and alter or quash the impugned judgment. If need be, it may reject the claim on formal grounds or discontinue the proceedings.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant company is a privately owned company registered in Danilovgrad, Montenegro.

In July 2004 a call for tender for hotel “Otrant” in Montenegro was issued. The deadline for submitting bids was October 2004. Together with three other companies, the applicant company took part in the tendering process. On 30 November 2004, however, it was informed that the tender was awarded to another bidder.

On an unspecified date in December 2004, the applicant company objected to this decision. On 29 December 2004 the Commercial Court in Podgorica (Privredni sud u Podgorici) rejected the applicant company’s objection.

On 28 January 2006 the Court of Appeal quashed this decision and remitted the case to the first instance.

On 15 June 2006 the Commercial Court ruled against the applicant company. This decision was served on the applicant company on 8 September 2009.

On 26 March 2010 the Court of Appeal upheld the decision of the Commercial Court. The decision of the Court of Appeal was served on the applicant company’s lawyer on 27 April 2010.

On 15 July 2010 the applicant company lodged an initiative urging the Supreme Public Prosecutor’s Office (Vrhovno državno tužilaštvo) to file a request for the protection of legality (zahtjev za zaštitu zakonitosti), but this motion was rejected on 21 July 2010.

On 30 July 2010 the applicant company lodged a constitutional appeal. On 14 October 2010 the Constitutional Court rejected this appeal as having been lodged out of time.


CASE OF SKIDAN AND ZINKOVSKYY v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 52321/14 also raised another complaint under Article 3 of the Convention concerning the conditions of his detention.


Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Greger Carpelan, is a Swedish national, who was born in 1923 and lives in Stockholm. He was represented before the Court by Ms G. Högberg Björck, a lawyer practising in Bro. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

Background

Since 1958 the applicant has resided in a flat located in a building in Bellevue Park in Stockholm: first due to his employment at the property and, as from 1982, on the basis of a rental agreement with the City of Stockholm (the owner of the property and the building). The Bellevue area is considered to be cultural heritage of national interest and has been recognised as such by the National Heritage Board (Riksantikvarieämbetet).

In 1996 the applicant appealed against a detailed development plan (detaljplan) adopted by the Municipal Council (kommunfullmäktige) of Stockholm which would allow for the construction of a tunnel under Bellevue Park as part of a motorway project called “Norra Länken”. The appeal was rejected by the Government, for which reason the applicant applied for judicial review before the Supreme Administrative Court (Högsta förvaltningsdomstolen). He claimed, inter alia, that he, and others living within or close to the area, would be negatively affected by the construction of the tunnel as it would cause various disturbances, particularly during the construction. Moreover, he contended that the nature and landscape of the park would be affected in violation of the Law on Natural Resources (lag om hushållning med naturresurser m.m., 1987:12, which was subsequently replaced by the Environmental Code [Miljöbalken, 1998:808]). On 31 January 1997 the Supreme Administrative Court repealed the Government’s decision, finding that the planned construction would constitute a breach of the law invoked in that the construction would encroach upon an area classified as a National City Park (nationalstadspark).

Consequently, the Government annulled the detailed development plan in question and, later, the Municipal Council adopted a new detailed development plan which gained legal force in April 2006. Subsequently, the Municipal Council adopted an amendment to this detailed development plan. However, the amendment required changes to the Environmental Code and, in May 2009, such changes were adopted.

The proceedings relating to the amendment of the detailed development plan

On 11 May 2009 the Municipal Council adopted the amendment to the detailed development plan concerning Norra Länken. The amendment allowed for the construction from above ground of a tunnel through Bellevue Park. The Municipal Council noted that the amendments were focused on the method of constructing the tunnel. It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished. Thus, there would be no considerable impact on the environment, nature, cultural heritage or people’s health and, hence, a formal environmental evaluation would not be necessary.

The applicant appealed against the decision to the County Administrative Board (länsstyrelsen), claiming essentially that the amendment was not in accordance with the Environmental Code and that a formal environmental evaluation should have been carried out. In his opinion, the negative effects on the environment and nature outweighed the benefits of the construction of the tunnel.

On 17 June 2009 the County Administrative Board rejected the appeal. It agreed with the Municipal Council that there was no need for a formal environmental evaluation. Moreover, having weighed the applicant’s individual interests against the general interests that the amendment sought to protect, the Board concluded that the applicant’s submissions did not suffice to repeal the decision of the Municipal Council. Lastly, it found that no other circumstances had been presented which could lead it to repeal the decision.

The applicant appealed against the Board’s decision to the Government. He noted that he had not claimed that his individual interests were of any significance. However, he stressed the general interest in preserving the park and in particular a number of trees in the park. In his view, these general interests had not been considered properly and the Board had completely ignored his claim that the decision breached certain provisions in the Environmental Code.

On 15 October 2009 the Government rejected the appeal. It first observed that the purpose of the amendment to the detailed development plan was to render possible the construction of the tunnel from above ground and, at the same time, to ensure that the intrusion would be temporary and limited to the period of the actual construction. The landscape was to be restored immediately afterwards according to an adopted quality programme which was based on an historical park plan from the 18th century. The Government then observed that, although the area affected by the amendment was part of a National City Park, the amendments to the Environmental Code of May 2009 allowed for certain measures that would cause only temporary encroachment or damage to the park. Having regard to all , the Government found no reason to depart from the Board’s assessment that the plan complied with the provisions of the Environmental Code. As concerned the applicant’s other submissions, the Government considered that they did not give reason to alter or repeal the Board’s decision.

The applicant then requested a review of the Government’s decision by the Supreme Administrative Court under the Act on Judicial Review of Certain Government Decisions (lagen om rättsprövning av vissa regeringsbeslut, 2006:304; hereafter “the 2006 Act”). He submitted that the Government’s decision violated the Environmental Code as well as the Constitution. He particularly stressed that the construction of the tunnel meant that several old trees in the park would be cut down, causing irreparable harm.

On 17 December 2010, the Supreme Administrative Court dismissed the applicant’s request for judicial review. The court noted that, according to Section 1 of the 2006 Act, an individual may apply for judicial review of such decisions by the Government that concern the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. It then observed that the property where the applicant resided was located outside the area covered by the detailed development plan. He also did not own property within or adjacent to the area covered by the plan. The court concluded that the Government’s decision did not concern the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention and, therefore, he did not have locus standi before the court.

The judicial review procedure

On 1 July 2006, the 2006 Act replaced the Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205, hereafter “the 1988 Act”).

According to the preparatory work to the 2006 Act, the purpose of judicial review was to provide access to court as regards decisions which should be subject to judicial review under the Convention, but where Swedish national law did not provide such a right beyond the possibility to apply for the extraordinary remedy of relief for substantive defects (Government Bill 2005/06:56 p. 10). The preparatory works further noted that the scope of application of the 1988 Act had been too narrow in some cases, while in other cases its application went further than required by the Convention in relation to “civil rights and obligations” (ibid., p. 12). Thus, the provision on right of action was formulated differently in the 2006 Act compared to the 1988 Act.

Consequently, under Section 1 of the 2006 Act, an individual can only apply for judicial review of decisions by the Government when they involve a determination of the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention.

Section 7 of the 2006 Act states that the Supreme Administrative Court shall annul the Government’s decision if the decision contravenes a legislative provision either in the way alleged by the complainant or in a way that is clearly apparent from the circumstances. However, this does not apply if the error obviously lacks significance for the decision.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1972.

The applicant arrived in Russia in 1988. He was subsequently convicted of criminal offences on several occasions. He was released on 3 December 2014 after serving his most recent prison sentence.

On 2 December 2014 the Russian Ministry of Justice issued an exclusion order, declaring the applicant’s presence in Russia undesirable and prohibiting his return to Russia until 2020. Further to the exclusion order, on 4 March 2015 the migration authorities issued a deportation order in respect of the applicant and he was later arrested. On 6 March 2015 a judge authorised his further detention until 10 March 2015, with a view to enforcing the deportation order. His detention was then extended until 30 August 2015.

On 7 May 2015 the Georgian authorities informed the Russian migration authority that the applicant was not a Georgian national and that they would not assist in his return to Georgia. The applicant was released on 30 August 2015 following the expiry of the latest detention order.

On 14 December 2015 the applicant was accused of an offence under Article 18.8 § 3 of the Code of Administrative Offences (CAO) on account of his presence in Russia without the necessary documents. On 15 December 2015 the Kirovskiy District Court of Saint Petersburg convicted the applicant and ordered his administrative removal from Russia (without specifying the destination country). The judge noted that the applicant was a stateless person but held that he had to comply with a statutory obligation to leave Russia, having no valid legal basis for being there. Lastly, the judge ordered that the applicant be placed in a detention centre for foreigners, with a view to enforcing his administrative removal.

The judgment was amenable to appeal within ten days of receipt by the defendant.

On 25 December 2015 the applicant appealed, arguing, inter alia, that the penalty of administrative removal could not be enforced in the absence of Georgian or any other nationality and that it was therefore unjustified to place him in detention and keep him there.

On 26 January 2016 the Saint Petersburg City Court upheld the judgment of 15 December 2015. The appeal court considered that the applicant could still be removed to the country from which he had arrived in Russia if there was a readmission agreement with that country; that he could be held in detention for a maximum of two years, which was the statutory period for the enforceability of a penalty; and that the CAO had not required the trial judge to set any time-limit when ordering his placement in a detention centre for foreigners.

On 24 March 2016 the Georgian authorities again informed the Russian migration authority that they would not assist in providing documents for the applicant’s return to Georgia as he was not a Georgian national and there were no other legal grounds for such assistance.

The applicant sought a review of the decisions of 15 December 2015 and 26 January 2016. On 24 June 2016 the deputy President of the City Court upheld them on review under Article 30.12 of the CAO.

On 22 July 2016 the District Court dismissed an application from the applicant to terminate the proceedings to enforce the judgment of 15 December 2015. The court held that there was no statutory basis in the CAO or other legislation for granting such an application. On 8 November 2016 the City Court upheld that decision.

In the meantime, on 1 August 2016, referring to Article 5 § 4 of the Convention, the applicant lodged an application for release and again sought termination of the enforcement proceedings. By a letter of 2 August 2016 a judge of the District Court returned his application without examination.

The applicant lodged an individual complaint with the Russian Constitutional Court (see paragraph 29 below).

On 5 June 2017 the applicant’s lawyer lodged an application with the Kirovskiy District Court of Saint Petersburg in order to obtain the applicant’s release, referring to the above-mentioned constitutional ruling. On 22 June 2017 the District Court ordered his release.

From 15 December 2015 to 5 August 2016 (when the application was lodged with the Court) and then further until 22 June 2017 the applicant was kept in the Сentre for the Temporary Confinement of Foreign Nationals (Центр временного содержания иностранных граждан) in Krasnoye Selo. From the start date to mid-February 2016 he was kept in cell no. 404 and from mid-February to 3 August 2016 he was in cell no. 403. According to the applicant, each cell measured eighteen square metres and accommodated four people. The cells were equipped with bedside boards and beds but there were no chairs, tables or other furniture. On 3 August 2016 the applicant was transferred to cell no. 304, measuring eight square metres, where he was kept alone. From late September 2016 to 17 January 2017 he shared cell no. 706, measuring ten square metres, with another detainee. From 17 to 22 January he was in cell no. 405 and from 22 January to 22 June 2017 he was kept in cell no. 406 with three other detainees.

During the period of his confinement up to 3 August 2016 the applicant was locked in his cell most of the time, being taken to a courtyard (measuring some fifteen square metres) every second day for ten to fifteen minutes. He was taken there every third day from early 2017. The yard had no equipment for sport or leisure activities, no benches and no shelter from the rain or snow.

The toilets in the cells were separated from the main area by a fixed partition. There was no proper, ceramic toilet bowl, just a “hole” with a flusher set on a small base so the toilet had to be used in a squatting position. According to the applicant, the partition was not high enough and the toilet area remained visible. There were also unpleasant odours.

Shower facilities were accessible for ten minutes every fourth day in 2016 and once every seven to ten days from early 2017. There were no facilities for washing or drying clothes and no toilet paper, toothpaste, soap or the like was provided. Bedding was changed once a month. Subsequently, the applicant also stated that the cells became infested with bugs, cockroaches and mice, although it was not clear to what period of time he referred to. He submitted a photograph showing two captured mice in containers.

Food was brought to the cells but was cold, particularly in winter, and of mediocre quality. In the absence of tables, detainees had to eat on their beds. There was no supply of drinking water and no facilities for boiling water or cooking food. It was not possible to purchase food.

He had been allowed to leave cells 304 and 706 and move within the corridor and shower area but had been prohibited from entering other cells.

No radio, television, newspapers or the like were provided in the detention centre. The applicant and his co-detainees were apparently allowed to have a television set during his most recent period of detention.

The applicant has submitted several photographs of the cells, a statement written by his cellmate after March 2017, a statement from a detainee written in 2015 and a recent news report about the detention centre.

In November 2016 the detention facility was visited by members of a public oversight committee. They noted that the toilets (consisting of a “hole”) in the cells on the fourth floor were separated from the main area by a low partition or curtain and that it was not possible to switch the lights on or off from inside the cells. They also noted that the detention centre had no courtyard for detainees.

According to the Government, as of February 2017 the applicant was being held in cell no. 403, which measured 27.4 square metres (not eighteen as submitted by the applicant). The cell was equipped with a toilet, a sink with hot and cold water, beds and a table. The main lights were switched off at night. The detention centre had a library and detainees could borrow books. Food was prepared and delivered by an external catering company. Hot food was brought in special containers.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)

Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and his mother entered the United Kingdom on 13 July 1989 and were granted six months’ leave to enter as visitors. Following the expiry of their leave they remained in the United Kingdom as overstayers.

The applicant’s father entered the United Kingdom in 1991.

The applicant’s siblings were born in the United Kingdom on 20 November 1993 and 11 January 1995.

On 5 June 1995 the applicant’s mother claimed asylum on undisclosed grounds. The applicant and his two siblings were named dependents on that claim. The Secretary of State for the Home Department refused the asylum claim on 15 April 1998. Following a reconsideration of the case in August 1999, the Secretary of State again refused the asylum claim but granted the family four years’ exceptional leave to remain in the United Kingdom.

In March and November 1999 the applicant, who was then twelve years old, received police cautions for offences of assault occasioning actual bodily harm and robbery.

On 7 February 2003 he was convicted of robbery and assault occasioning grievous bodily harm.

On 21 August 2003 the applicant, his mother and his siblings were granted indefinite leave to remain in the United Kingdom. His mother and siblings have since become British citizens.

On 16 December 2003 the applicant was convicted of disorderly behaviour or using threatening/abusive/insulting words likely to cause harassment, alarm or distress. He was fined GBP 50.00.

On 3 March 2004 he was convicted of burglary, theft and impersonating a police officer. He was sentenced to a community punishment order of two hundred hours.

On 26 November 2004 the applicant was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution.

In or around this time the Secretary of State considered instigating deportation proceedings against the applicant. On 30 June 2006 he decided not to pursue such proceedings owing to the length of his residence in the United Kingdom. However, he warned him that should he come to the adverse attention of the authorities through criminal offending in the future, he could be liable to deportation.

In 2006 the applicant’s father was granted indefinite leave to remain in the United Kingdom.

On 11 July 2008 the applicant pleaded guilty to the supply of Class A drugs. On 20 March 2009 he was sentenced to seven years’ imprisonment. The sentencing judge addressed him in the following terms:

“this case has been a copy-book example of how people in your position are able to continue to operate outside the law by the use of interchangeable street names, preying upon the most vulnerable addicts and by the indiscriminate use of fear and violence to ensure that no-one informs the police of your criminal activities ... Your evidence to the jury was that you were the main man for drugs in Swindon ... Your nickname of ‘Bruiser’ ensured that when the ‘workers’ as you called those who sold drugs on your behalf, ‘messed up’ it was your policy, to use your own words, of ‘roughing them up a little bit’. You told the jury, with some satisfaction, that this policy was successful ... I regard you as close to the source of supply and wholesaling to retailers in Swindon on a persistent and regular basis.”

The applicant’s appeal against conviction and sentence was dismissed on 19 June 2009. However, on 9 February 2010 the Court of Appeal substituted the applicant’s sentence of seven years’ imprisonment with one of seven years’ detention in a Young Offenders’ Institution. While in detention he received sixteen adjudications, which included the use of threats and abusive behaviour, disobeying lawful orders, fighting with other inmates, and attempting to commit/incite another inmate to commit assault on staff.

He was released on licence on 3 March 2011.

Pursuant to section 32(5) of the United Kingdom Borders Act 2007 (“the 2007 Act”), the Secretary of State was required to make a deportation order in respect of foreign criminals sentenced, inter alia, to a period of imprisonment of at least twelve months, unless one of the exceptions in section 33 – namely that removal would breach their rights under either the Refugee Convention or the European Convention on Human Rights – applied (see paragraphs 52 and 53 below).

On 6 April 2010 the Secretary of State notified the applicant of his liability to automatic deportation and asked him to submit reasons why he should not be deported. His representatives responded to that letter; however, on 2 March 2011 he was served with both a deportation order dated 23 February 2011, and a decision that section 32(5) of the 2007 Act applied (that is, he was liable to automatic deportation and removal would not breach his rights under either the Refugee Convention or the European Convention on Human Rights).

In a section of the decision headed “Consideration under ECHR”, the Secretary of State had regard to her obligations under Article 8 of the Convention. Although she accepted that the applicant had family ties in the United Kingdom with his mother, father, brother and sister, in the absence of further elements of dependency she found that these ties did not constitute family life. She did accept that he enjoyed private life in the United Kingdom but did not consider that his removal would be disproportionate to the legitimate interest of preventing disorder and crime. In particular, she noted that he had an elderly grandmother in Nigeria and as an adult he could be expected to readjust to life there. Furthermore, as English was one of the official languages of Nigeria, he would not face a language barrier on return. Finally, she had regard to the seriousness of his criminal record, the sixteen adjudications he had received while in detention, and the fact that he had been warned about the risk of reoffending in 2006. She therefore concluded that his deportation would not be in breach of Article 8 of the Convention.

The applicant appealed against this decision. In support of his appeal, he submitted a report by Dr B., a consultant forensic psychiatrist. The report indicated that he suffered from dyslexia; that he had developed Adolescent Conduct Disorder which could manifest itself in antisocial behaviour but was not inevitably associated with continued offending in adult life; and that although he presented a medium risk of reoffending, there existed a number of positive factors which would decrease the likelihood of continued criminal involvement, including his family’s abstention from criminal activity, his sustained and supportive parental relationships, his wish to improve himself, and the absence of substance misuse.

On 8 June 2011 the First-tier Tribunal (IAC) allowed the applicant’s appeal on Article 8 grounds, having found that his deportation would be neither proportionate nor necessary in a democratic society. It found that the applicant did enjoy family life with his parents and younger siblings, his unfortunate history having resulted in a particular dependency on them, since he required their support to “help him to change from being a criminal offender to an employed adult and useful member of society”. In addition, it found that he had also established a private life in the United Kingdom; that he had no experience of living in Nigeria, save for a short period as a baby and a two week holiday in 2004; that he had no close relatives in, and no ties to, Nigeria; that he had indicated his remorse and given assurances that he would not offend again; and that his working and studying whilst in detention supported those assurances.

The Secretary of State was granted permission to appeal on 24 June 2011.

On 31 October 2011 the Upper Tribunal (IAC) found there to have been a material error of law in the decision of the First-tier Tribunal. The decision was set aside in its entirety and the case submitted for a full rehearing before the Upper Tribunal.

On 24 April 2012 the Upper Tribunal dismissed the applicant’s appeal against the deportation order.

The Tribunal considered the principles established by this Court in Boultif v. Switzerland, no. 54273/00, ECHR 2001IX, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006XII and Maslov v. Austria [GC], no. 1638/03, ECHR 2008. In its view, the single most compelling factor in the applicant’s favour was the length of his residence in the United Kingdom. It also had regard to his family ties. Although it did not accept that there was any additional element of dependency which would enable it to find the existence of family life for the purposes of Article 8 of the Convention, it nevertheless accepted that the applicant’s parents and siblings were an important part of his private life.

Balanced against his long residence and established private life, the Tribunal considered the applicant’s criminal record. It noted that he had a long history of offending, beginning at the age of twelve; that he had received fair warning from the Secretary of State in 2006 that any further offending would not be tolerated; that notwithstanding that warning and the subsequent assurances given to the Secretary of State that he was turning his life around, he was already engaged in drug dealing; that his criminal behaviour had not only continued but had also escalated; that whilst serving his most recent sentence, he had received sixteen adjudications, the majority of them for violence and disobedience; that his problems with dyslexia could not be used as an excuse to justify his poor behaviour and repeat offending; and that whilst the majority of his offending had occurred when he was a child, his most recent and most serious had occurred after he had attained his majority.

With regard to the issue of future offending and risk to the public, the Tribunal found it difficult to accept his assurances that he had had a genuine change of heart and no longer posed a risk to the public. He had made similar assurances when faced with deportation in 2006, and since his criminal associates were in prison the fact that he did not see them was not a weighty factor indicating a lifestyle change. Furthermore, there was no evidence that either of his parents would be able to exert any positive influence over him, as they had been unable to do so in the past. Although he was in employment on a probationary period, there was no evidence of a contingency plan should he not progress into more secure employment.

Therefore, whilst accepting that the applicant’s removal would be difficult, the Tribunal concluded that he was of an age where he could be expected to “stand on his own two feet and make a life for himself”. His family could visit him in Nigeria and there was evidence to suggest that he had a number of relatives living there. The Tribunal further noted that he had no girlfriend or children in the United Kingdom, he was in good health, and he would not face any language difficulties as there was a universal use of English in Nigeria. Consequently, the Tribunal concluded that in spite of his long residence and family circumstances, serious reasons (as required by this Court in Maslov, cited above, § 75) existed to justify the applicant’s expulsion, and that the public interest in effecting deportation outweighed his Article 8 rights.

On 21 June 2012 the Upper Tribunal refused to grant the applicant permission to appeal. The Court of Appeal similarly refused permission to appeal on 12 September 2012, and again on 30 October 2012 following an oral hearing. It found that although the case had required a difficult and delicate balancing exercise, the Upper Tribunal had provided a thorough and careful determination, and the conclusion reached was one which had been open to it.

On 9 July 2012 the Secretary of State amended the Immigration Rules (see paragraphs 54-57 below). In so far as relevant, the new Rules (which have since been further amended) provided that the deportation of foreign criminals would be conducive to the public good if they were sentenced to four or more years’ imprisonment. In such cases, the public interest would only be outweighed in “exceptional circumstances”.

On 9 November 2012 and 14 November 2012 the applicant submitted further representations to the Secretary of State based on his fourteen-month relationship with a British national, who had no connection to Nigeria, and the birth of their son on 1 October 2012. The Secretary of State treated those representations as an application to revoke the deportation order and refused it on 3 January 2013. She also certified the applicant’s claim, which meant that he was not afforded an automatic incountry right of appeal.

On 14 January 2013 the applicant sought permission to apply for judicial review of the Secretary of State’s decision to certify his claim. Along with his application, he provided medical evidence that his son required an operation in March 2013 to correct an umbilical hernia, and that he had been diagnosed with respiratory syncytial virus and bronchiolitis.

On 19 February 2013 the Secretary of State agreed to withdraw the certification decision and to issue a new decision taking account of the applicant’s further representations of November 2012 and those lodged with the judicial review application in January 2013.

The Secretary of State considered the applicant’s further representations in light of the amended Immigration Rules. In a decision dated 11 April 2013, she refused to revoke the deportation order since there were no “exceptional factors” which outweighed the public interest. In particular, she noted that the applicant had entered into a relationship in the full knowledge of the intention to deport him; that both the applicant and his partner should have been fully aware of the implications of conceiving a child in those circumstances; that no valid reason had been given to explain the applicant’s failure to make submissions regarding his relationship at either the Upper Tribunal hearing in April 2012 or the Court of Appeal hearing on 30 October 2012; that if the applicant’s partner wished to continue the family unit in Nigeria, suitable medication would be available in that country to treat their son’s bronchiolitis condition; that there was no evidence of any exceptional, compelling or compassionate factors; and that deportation remained a proportionate response to the applicant’s serious criminal offending.

The applicant appealed. He submitted a number of documents in support of his case, including a further psychiatric report by Dr B. dated 17 July 2013. The report indicated that he had continued to make progress in adopting a “pro-social lifestyle”, that he had addressed his tendency to violence, that he no longer had any criminal associates, that he had demonstrated a commitment to his partner and their son, that he had secured employment, and that the risk of re-offending and of harm to the public was very low.

The First-tier Tribunal, having heard oral evidence from the applicant, his partner, mother, father, brother and sister, and having considered the evidence before it, dismissed the applicant’s appeal on 16 September 2013.

Using a two-stage approach, the Tribunal first considered the applicant’s case under the Immigration Rules. It noted that the applicant’s most recent conviction was for a serious offence which had attracted a sentence of seven years’ detention; that following the amendment of the Immigration Rules, “exceptional circumstances” would be required to prevent deportation; and that those “exceptional circumstances” were inextricably bound up with the applicant’s Article 8 rights.

In this regard, the Tribunal recalled that the applicant’s family and personal circumstances had been examined with the most careful and thorough consideration by the Upper Tribunal in 2012. It had considered them in the context of the exceptionality requirements set out in Maslov (the requirement of “very serious reasons” to justify the expulsion of a settled migrant: see Maslov, cited above, § 75) and concluded that his deportation was justified. The Tribunal noted, however, that the applicant’s personal circumstances had since changed. It therefore gave careful consideration to his two-and-a-half-year relationship with his partner and the birth of their child. Nevertheless, it concluded that neither the relationship nor the birth of the child amounted to an “exceptional circumstance” within the context of the Immigration Rules. Although it accepted that there would be an inevitable interference with the family life said to exist between the applicant, his partner and their child, it found there to be nothing “exceptional” about this. Consequently, the Tribunal did not consider that his family and personal circumstances amounted to the “exceptionality” required by the Immigration Rules.

The Tribunal moved on to consider Article 8 as a separate issue, having regard to the findings of the Upper Tribunal in 2012. It agreed with the Upper Tribunal that language would not be an obstacle for the applicant since English was widely spoken in Nigeria. It further noted that while the evidence as to the existence of family in Nigeria was somewhat confusing, it was perhaps not of fundamental importance for an adult quite capable of standing on his own two feet; that the applicant would continue to receive support from his parents following his removal to Nigeria; and that his parents could visit him there as often as they wished.

In respect of the applicant’s relationship with his partner and their child, it observed that he had failed to disclose his immigration status to his partner until after she had fallen pregnant; that he and his partner had never lived together; that his partner and child had the full support of her family in the United Kingdom, with whom they lived, and that support would continue following the applicant’s deportation; and that his child could visit him in Nigeria and maintain such a relationship as deemed appropriate. Therefore, having carefully considered the issue of proportionality, including “section 55 [of the Borders, Citizenship and Immigration Act 2009 – see paragraph 60 below] and the best interests of the Appellant’s child”, the Tribunal concluded that the Secretary of State had a legitimate interest in maintaining appropriate immigration control and social order within the United Kingdom, and that the interests in effecting the applicant’s deportation were not outweighed by his Article 8 rights.

The applicant sought permission to appeal on the ground that the Tribunal had erred in concluding that his circumstances were not “exceptional” for the purposes of the Immigration Rules. The First-tier Tribunal refused permission to appeal on 4 October 2013. The applicant made a further application for permission to appeal to the Upper Tribunal, raising the same grounds as before the First-tier Tribunal. In addition, he also submitted that the application raised an important point of principle: namely, whether the decision of the Tribunal was contrary to the principle of double jeopardy, or constituted discriminatory punishment, since a British national could not be excluded from the United Kingdom. On 23 October 2013 the Upper Tribunal refused the application for permission to appeal. Both Tribunals found that the applicant’s grounds sought, in essence, to reargue the merits of the appeal and that no error of law had been disclosed.

The applicant then sought permission to apply for judicial review of the Upper Tribunal’s refusal of the application for permission to appeal. Following the Supreme Court judgment in R (on the application of Cart) v. The Upper Tribunal; R (on the application of MR (Pakistan)) v. The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28, the Administrative Court could only review decisions of the Upper Tribunal if the “second appeal” test was satisfied; that is, if the appeal raised an important point of principle, or there was another compelling reason to allow it to succeed. In the present case the applicant once again submitted that the “double jeopardy” argument raised an important point of principle. However, on 6 December 2013 the Administrative Court refused the application for permission to apply for judicial review. In refusing permission the judge expressly stated that while it was “apparent that different views might reasonably be taken about whether the Claimant should be permitted to remain in the UK in the light of his family ties and length of residence”, that was “not the test for the grant of permission”.

Following the refusal of the application for permission to apply for judicial review, the applicant had no right to renew the application at an oral hearing in the Administrative Court. However, it would have been possible for him to apply to the Court of Appeal for permission to appeal against the Administrative Court’s decision.

Removal directions scheduled for 20 January 2015 were cancelled owing to the absence of a valid travel document.

On 18 March 2015 the applicant advised the Court that his relationship with his partner had broken down and that he had court-ordered direct contact with his son on alternate Saturdays.

On 4 August 2015 the Secretary of State advised the applicant that an application to the Nigerian authorities for a travel document, required to effect his deportation from the United Kingdom, was pending.


Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1954 and lives in Baku.

The applicant was deputy chairman of the Popular Front Party. He stood in the elections to the National Assembly of 6 November 2005 as a candidate of the opposition bloc Azadliq. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the singlemandate Sabail Electoral Constituency no. 29.

There were a total of thirty-two polling stations in the constituency, twenty-nine of which were ordinary polling stations. Polling Station no. 30 was set up on the premises of a temporary detention centre so that persons detained there could vote. Polling Stations nos. 31 and 32 were set up shortly before the elections exclusively for military servicemen belonging to two military units stationed within the constituency. Those military units were permanently stationed in the Bayil and Badamdar suburbs of Baku.

According to the minutes of the ConEC meeting of 29 September 2005, a copy of which was submitted by the Government, on that date the ConEC decided, inter alia, to appoint members to the precinct (polling station) electoral commissions (“the PEC”) for Polling Stations nos. 31 and 32. It appears from the minutes that five out of six members of each PEC in question were military officers or personnel of those military units, with the exception of one member nominated to each PEC by an opposition party. In each PEC, three of the five “military members” were nominated by the ruling party. According to the applicant, prior to the proceedings before the Court, he had never been provided with the full text of the minutes of the ConEC meeting of 29 September 2005.

The official election results in the constituency showed that the applicant had received an overall total of 3,454 votes and finished in second place. Of those votes, 3,301 had been cast in Polling Stations nos. 1 to 29 and 153 had been cast in Polling Stations nos. 30, 31 and 32.

The winning candidate (M.) received an overall total of 3,661 votes. Almost half of those, a total of 1,816 votes, had been cast in Polling Stations nos. 30, 31 and 32. Of those, 1,369 votes, which constituted over a third of his total vote count, had been cast in the polling stations (nos. 31 and 32) created exclusively for military voting (779 and 590 votes respectively).

On 8 November 2005 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) alleging a number of violations of electoral law in his constituency. He requested that the election results in Polling Stations nos. 30, 31 and 32 be invalidated. He complained, inter alia, of the following:

(a) that the setting up of Polling Stations nos. 31 and 32 exclusively for military voting was in breach of Article 35.5 of the Electoral Code, which required that military servicemen should vote in ordinary polling stations and which stipulated that special military polling stations should be set up only in exceptional circumstances. In this case, there were no such exceptional circumstances and the personnel of each military unit in question should have voted in one or more of the several ordinary polling stations already located within very short walking distances of their barracks;

(b) that the PECs of Polling Stations nos. 31 and 32, consisting mostly of military officers, had acted as if they were accountable to the Ministry of Defence and not the superior electoral commissions, and that two of the duly appointed PEC members, nominated by the opposition, had been denied access to the polling stations;

(c) that in the three “closed” polling stations (nos. 30, 31 and 32) the elections had been unfair, and military servicemen and detainees had voted under coercion. It was noted by observers in Polling Stations nos. 31 and 32 that high-ranking military officers had pressured military servicemen to vote for M. Similarly, undue pressure had been put on detainees in Polling Station no. 30. As a result, M. received about as many votes in those three “closed” polling stations as in all twenty-nine of the other (ordinary) polling stations of the constituency (where he had clearly lost to the applicant by a large margin), which allowed him to pull slightly ahead in the overall vote count. The results of the voting in the three “closed” polling stations and their effect on the election clearly showed that the election had been rigged in favour of the candidate supported by the ruling party.

In support of the above complaints, the applicant submitted copies of written observations made by several observers at those polling stations.

On 21 November 2005 the CEC issued a decision invalidating the election results in Polling Stations nos. 20 and 21 of Sabail Electoral Constituency no. 29, having found that the electoral law had been breached in those polling stations. It did not provide any details as to the exact nature of those breaches. That decision did not affect the overall election results in the constituency. The CEC’s decision did not mention the applicant’s complaints concerning Polling Stations nos. 30, 31 and 32.

On 24 November 2005 the applicant lodged an appeal against the CEC decision, reiterating the complaints that he had made before the CEC. During the Court of Appeal hearing, a representative of the CEC argued generally, without addressing any of the applicant’s factual arguments in detail, that the elections in Polling Stations nos. 30, 31 and 32 had been lawful and that there were no grounds for invalidating the votes cast in those polling stations.

On 26 November 2005 the Court of Appeal dismissed the applicant’s complaint, finding that he had failed to substantiate his allegations. In particular, the judgment read as follows:

“Under Article 14.2 of the CCP, the court may examine, and rely on, only the evidence submitted by the parties.

Despite the requirement of the above-mentioned Article, the claimant, H.H. Karimov, and his counsel, [S.T.], have not been able to produce before the court any reliable evidence in support of the allegations made in the claim.

Under Article 77.1 of the CCP, each party must prove the facts to which it refers as a basis for its claims and objections.

Under Article 217.4 of the same Code, the court may rely in its judgment only on the evidence examined at the court hearing.

Having regard to the above, the court does not find any grounds for upholding the claim and rejects as unsubstantiated [the applicant’s] claim against [the CEC] requesting the invalidation of the election results in Polling Stations nos. 30, 31 and 32 of Sabail Electoral Constituency no. 29 ...”

The applicant appealed to the Supreme Court, reiterating his complaints.

On 30 November 2005 the Supreme Court dismissed the appeal, essentially on the same grounds as the Court of Appeal.

On 1 December 2005 the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Sabail Electoral Constituency no. 29.


Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

A list of the applicants is set out in the appendix.

On 3 October 2001 the applicants’ father was hit by a car while he was crossing a street. On the same date, he succumbed to his injuries and died.

Criminal proceedings were brought against M.S.A., who had hit the applicants’ father while driving his company car, for causing death by negligence.

According to an expert report dated 25 April 2002 prepared by a university professor who was a former traffic expert at the Forensic Medicine Institute (Adli Tıp Kurumu Trafik İhtisas Dairesi), the driver had been 37.5% responsible for the accident, and the remaining responsibility lay with the applicants’ father, who had been hit when crossing the street while the pedestrian “don’t walk” red light was showing.

In a report subsequently prepared by the traffic branch of the Forensic Medicine Institute on 16 October 2002, the driver was found to have been only 25% responsible for the accident.

On 27 December 2002 the Istanbul Criminal Court of First Instance found M.S.A. guilty of causing death by negligence, and imposed a fine on him.

Following an appeal by the parties, on 8 June 2005 the Court of Cassation quashed that judgment on procedural grounds and remitted it to the Istanbul Criminal Court of First Instance.

On 24 March 2006 the Istanbul Criminal Court of First Instance again sentenced M.S.A. to a fine; that judgment was also quashed by the Court of Cassation on 17 April 2008 on procedural grounds.

On 25 May 2009 the Istanbul Criminal Court of First Instance decided to discontinue the proceedings, as the prosecution of the offence in question had become time-barred. On 14 March 2012 the Court of Cassation upheld that judgment. The applicants claim to have learned of that decision on 30 October 2012.

On 18 July 2002 the applicants, together with their mother Vasfiye Ciddi, lodged a claim before the Istanbul Civil Court of First Instance for compensation against (i) the driver, M.S.A., (ii) M.S.A.’s employer (that is to say, the company that employed him), which owned the car which M.S.A. had been driving at the time of the accident, and (iii) the latter’s insurance company. They requested a total of 25,000,000,000 Turkish liras (TRL) in respect of non-pecuniary damage, and TRL 25,000,000,000 in respect of pecuniary damage.

On 29 May 2003 the Istanbul Civil Court of First Instance decided to suspend the compensation proceedings pending the outcome of the criminal proceedings.

An expert report submitted to the Istanbul Civil Court of First Instance on 29 September 2009 found the driver M.S.A. to have been 25% responsible for the accident, in line with the reports submitted to the criminal case file.

On 5 October 2010 the Istanbul Civil Court of First Instance accepted the applicants’ claim in part and, having regard to the limited degree of M.S.A.’s responsibility for the accident, awarded them a total of 12,500 Turkish liras (TRY) in respect of non-pecuniary damage and TRY 2,490 in respect of pecuniary damage, plus interest on both amounts running from the date of the accident.

On 4 October 2011 the applicants’ mother, Vasfiye Ciddi, died, leaving the three applicants as her sole heirs.

On 12 and 17 October 2011 the applicants received TRY 43,000 (approximately 17,160 euros (EUR) at the material time) and TRY 7,523 (approximately EUR 2,950 at the material time), respectively, from the defendants in respect of pecuniary and non-pecuniary damage, in accordance with the judgment of the Istanbul Civil Court of First Instance.

On 15 February 2012 the Court of Cassation upheld the judgment of the first-instance court. That decision was served on the applicants on 12 June 2012.

On 8 April 2014 the Court decided to declare the applicants’ complaint under Article 6 § 1 concerning the length of the compensation proceedings inadmissible for failure to exhaust the available domestic remedies, in the light of its conclusions in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-58).

Accordingly, the applicants applied to the Compensation Commission established by Law no. 6384 in respect of their complaints concerning the length of the compensation proceedings.

On 1 July 2015 the applicants were paid TRY 8,300 (approximately EUR 2,760 at the material time) by the Ministry of Justice in respect of nonpecuniary damage arising from the undue lengthiness of the compensation proceedings.


CASE OF AZIENDA AGRICOLA SILVERFUNGHI S.A.S. AND OTHERS v. ITALY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award;Non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants are agricultural firms operating in northern and/or disadvantaged areas in Italy as defined in the relevant Italian laws.

In the 1980s the Italian legislator instituted a series of norms to favour economic activity in general and, more specifically, agricultural activity.

More precisely, Article 1(6) of Law no. 48 of 1988 (Legislative Decree no. 536 of 30 December 1987) (see “Relevant domestic law”, below) provided a concession (fiscalizzazione), namely, that as of 1 January 1987 the State would bear a portion of the contributions paid by employers in the agricultural sector for the purposes of Article 31(1) of Law no. 41/48 in respect of each employee.

Furthermore, Article 9(5) of Law No. 67 of 1988 (Legge finanziaria 1988) (see “Relevant domestic law” below) introduced a system of exemptions (sgravi contributivi) in respect of payments for the purposes of premiums and contributions related to welfare and assistance. Such payments were due in the measure of 15% (later 30%) by employers in the agricultural sector in northern regions and 40% (later 60%) by employers in the agricultural sector working in disadvantaged agricultural zones in the south of Italy.

According to the applicant companies, Article 9(6) of Law No. 67 of 1988 (see “Relevant domestic law” below) indicated that the latter benefit was not alternative to the one provided for by Law no. 48 of 1988. That sub-article specified that for the purposes of the calculation of the exemption mentioned above, the concession was not to be taken into account. This, they considered, was also clear from the explanatory memorandum (scheda di lettura) to the law (see “Relevant domestic law” below).

Following further normative changes between 1988 and 1996, the burden to be taken over by the State amounted to the following:

a) 85,000 Italian lire (approximately 44 euros (EUR)) per employee for twelve monthly salaries;

b) a global 5.62 percentage points for exemptions in respect of contributions for the purposes of TBC (Tuberculosis), ENAOLI (Orphans of Italian Employees) and the SSN (National Health Service);

c) a global 4.92 percentage points for exemptions regarding the said contributions in respect of labourers and 5.02 percentage points for employees and directors, as from 1 June 1996.

Despite the law, by circular no. 160 of 18 July 1988 the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, considered that the two benefits (concession and exemption) could not be accumulated and had to be considered as alternative.

In fact, the applicant companies benefited only from the exemption (sgravi contributivi) and not from the concession (fiscalizzazione). They considered that this interpretation was contrary to what was provided for in the law.

Indeed, from as early as 1994 a number of agricultural firms (in particular Floramiata Spa) instituted proceedings (following administrative refusals) complaining about the matter, and consistent case-law in favour of the agricultural firms was established by the Italian courts, including the Court of Cassation. The applicant companies submitted that between 1997 and 2003 more than twenty-five first-instance judgments and more than five appeal judgments on the same subject matter had been delivered, together with two Court of Cassation judgments (see “Relevant domestic law and practice”, below) finding in favour of the agricultural firms.

In this light, in 2000/2002 the applicant companies instituted proceedings as explained below. Pending these judicial proceedings Law no. 326 of 24 November 2003 (hereinafter Law no. 326/03) was enacted (see “Relevant domestic law” below), providing that the benefits could not be accumulated.

By judgment no. 274 of 7 July 2006 the Constitutional Court considered that Law no. 326/03 was legitimate and not unconstitutional (see “Relevant domestic law and practice” below).

On 7 November 2000 the applicant company requested the INPS to return the monies which it had held contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 173,738,951 Italian lire (approximately EUR 90,000) plus interest and subject to revaluation.

The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 26 June 2001 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply.

Thus, on 4 January 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2000 onwards).

By a judgment (no. 56/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant company had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2000 onwards), with interest and subject to revaluation, and to pay its share of the costs of the proceedings.

By a judgment (no. 276/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment.

Following the entry into force of Law no. 326/03 the INPS appealed to the Court of Cassation.

The applicant company cross-appealed, arguing that the application of Law no. 326 of 24 November 2003 to its case would amount to a violation of Article 6 of the Convention and a violation of the Italian Constitution in so far as it obliged the State to abide by the European Convention, a matter which had not been considered at all by the Constitutional Court in its judgment of 7 July 2006.

By a judgment (no. 10110/07) filed in the relevant registry on 2 May 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326/03. The remaining grounds of appeal were dismissed on the basis that Law no. 326/03 had an authentic interpretative nature and was therefore only apparently retroactive, it having now been given the original intended meaning of the law. Indeed, as a thorough examination of the relevant laws revealed, the benefits at issue could not be awarded cumulatively; rather, one had to identify the most favourable benefits to a firm according to its specific position. Furthermore, the State had legitimate discretion to decide whether benefits could be granted cumulatively or not, thus no issue relating to a fair trial could be considered to arise. Each party was to bear its own costs for the entire proceedings.

On 9 July 2001 and again on 29 January 2002 the applicant company requested the INPS to return the monies which it had witheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 413,928,856 Italian lire (approximately EUR 213,776) plus interest and subject to revaluation.

The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 7 June 2002 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply.

Thus, on 11 June 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription.

By a judgment (no. 58/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Holding that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2001 onwards, the date on which prescription was interrupted), with interest and subject to revaluation, and to pay its share of the costs of the proceedings.

By a judgment (no. 277/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment.

Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation.

The applicant company cross-appealed along the lines mentioned above.

By a judgment (no. 12863/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings.

On 14 and 30 July 1999 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 January 1989 and 31 December 1997, amounting to 210,609,000 Italian lire (approximately EUR 108,770) plus interest and subject to revaluation.

The INPS failed to reply.

Thus, on 25 January 2000 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription.

By a judgment (no. 8/2001) of 3 April 2001 the Siena Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and revaluation (from 1999, the date of its administrative claim, onwards), together with the full costs of the proceedings.

By a judgment (no. 249/02) of 16 April 2002 filed in the relevant registry on 24 April 2002 the Florence Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment.

By a judgment (no. 13291/07) filed in the relevant registry on 7 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings.

On 10 December 2001 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1991 and 31 December 1997, amounting to 163,373,972 Italian lire (approximately EUR 84,375) plus interest and revaluation.

The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 15 May 2002 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply.

Thus, on 11 September 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2001 onwards).

By a judgment (no. 57/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and subject to revaluation (from 2001 onwards), and to pay its share of the costs of the proceedings.

By a judgment (no. 278/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment.

By a judgment (no. 12864/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings.