ITEMID: 001-79795
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GHEORGHE v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;John Hedigan
TEXT: 6. The applicant was born in 1971 and lives in Ploieşti.
7. The applicant suffers from haemophilia A which was diagnosed at birth. Haemophilia A is a congenital hereditary disorder characterised by delayed clotting of the blood and severe bleeding following even minor injuries. It requires treatment with the specific coagulant, factor VIII.
8. The applicant was working as an official in a local hospital.
9. Starting in 1992, the Medical Expert Reports and Occupational Rehabilitation Board (“the Board”) attached to the Ministry of Employment and Social Welfare examined the applicant once a year and issued him each time with a temporary certificate stating that he suffered from a seconddegree disability.
10. This certificate served as the basis for obtaining from the County Disabled Persons' Bureau (“the Bureau”) the entitlements provided for by Law no. 53/1992 on special protection for disabled persons – which included free medical assistance, transport and telephone rental – together with tax relief under Law no. 35/1993 in the form of exemption of the disabled person's salary from income tax.
11. On 26 October 1998 the Board confirmed the applicant's seconddegree disability by means of a certificate bearing the handwritten endorsement “valid for Law no. 35/1993”. According to the information supplied by the applicant, endorsements of this kind were commonly added by the Board, since the same certificate was used to obtain the entitlements under Law no. 53/1992 and tax relief under Law no. 35/1993.
12. In a letter of 15 December 1998 the Bureau informed the applicant that its accounting department had decided to suspend his entitlements under Law no. 53/1992, on the ground that the certificate issued on 26 October 1998 referred only to Law no. 35/1993 and could therefore be used only to obtain the entitlements provided for by that law.
13. By letter of 3 February 1999 the Employment Ministry informed the applicant that “in the absence of any provision to the contrary, there [was] no legal impediment preventing persons who [held] a certificate attesting to a degree of disability requiring special protection from enjoying all the entitlements and concessions for which they [were] eligible by law”.
14. On 29 October 1999 the Board confirmed the applicant's seconddegree disability. The certificate it issued on that occasion was again marked “valid for Law no. 35/1993”.
15. Following a sharp deterioration in his condition owing to his lack of treatment the applicant, in a memorial lodged with the State Secretariat for Disabled Persons on 3 April 2000, challenged the suspension of his entitlements under Law no. 53/1992.
16. In a reply dated 6 April 2000 the State Secretariat informed the applicant that no statutory provision barred the aggregation of entitlements under Laws nos. 35/1993 and 53/1992, and that persons suffering from a second-degree disability should be able to benefit from the entitlements available under both laws.
17. In an administrative action brought before the Ploieşti Court of Appeal on 30 November 2000 against the Bureau and the State Secretariat for Disabled Persons, the applicant requested recognition of his status as a disabled person requiring the special protection provided for by Law no. 53/1992 and claimed compensation for the pecuniary and nonpecuniary damage caused by the suspension of his entitlements between October 1998 and September 2000 which, he alleged, had resulted in a serious and rapid deterioration of his condition. He requested that the State Secretariat be ordered to pay him the sum of 1,184,502,000 Romanian lei (ROL), representing the cost of the treatment he would have received free of charge had the Bureau not suspended his entitlements under Law no. 53/1992, and a sum of ROL 11,920,200 corresponding to the value of the transport and telephone rental which he was no longer entitled to receive free of charge.
18. Following a hearing held on 15 January 2001, the applicant's lawyer requested that delivery of the judgment be adjourned to enable him to file written pleadings.
19. The Court of Appeal delivered its judgment on 22 January 2001. It observed that the Board had issued the applicant with annual certificates stating that he had a second-degree disability. The court therefore considered that the applicant had been recognised as having the status he requested during the period in question; accordingly, it rejected the first request as unfounded.
20. As to damages, the court held that it did not have jurisdiction to consider the issue and returned the case file to the Prahova County Civil Court.
21. From 5 to 10 February 2001 the applicant received in-patient treatment for haemorrhaging in Colţea Haematology Clinic in Bucharest.
22. During the proceedings before the County Court, on 12 March, 4 May and 1 June 2001, the applicant's lawyer requested an adjournment to enable him to add evidence to the case file and file written pleadings.
23. In a judgment of 5 June 2001 the County Court in its turn declined jurisdiction in favour of the Court of Appeal. The Supreme Court of Justice, called upon to resolve the conflict of jurisdiction, delivered a judgment on 21 November 2001 in which it held that the Ploieşti Court of Appeal had jurisdiction. The case was re-entered in that court's list.
24. The Court of Appeal heard evidence from two witnesses called by the applicant and ordered a medical expert report on the applicant's health.
25. The expert report was prepared by the forensic medical service of the city of Ploieşti. It noted numerous episodes of internal bleeding which had led to very severe bone deformation, immobilised joints and impaired mobility. In conclusion, the report stated that “the discontinuation of treatment [had] resulted in a sudden worsening of the disease, promoting the onset of very serious complications, namely internal and external bleeding, intracranial bleeding with haematomas, paralysis, phlebitis and asphyxia”.
26. During the proceedings before the Court of Appeal, on 12 March 2002, the applicant requested an adjournment to enable him to hire a new lawyer. On 7 June 2002 his lawyer requested a further adjournment so that he could file written pleadings.
27. In a judgment of 14 June 2002 the Court of Appeal, basing its findings on the certificates issued by the Board in 1998 and 1999, found that, for the period in question, the applicant had been recognised as having a second-degree disability. It dismissed the applicant's claim for damages on the ground that he “[had] not dispute[d] using a statutory remedy [section 27 of Government Ordinance no. 102/1999 of 29 June 1999, replacing Law no. 53/1992] his assignment to one of the categories of disability” and pointed out that he could “dispute and request revision of his classification in a given category if it no longer corresponded to the reality”. The court added that the applicant could only bring an action before the courts seeking to assert his rights if the competent authorities, after deciding to assign him to a different disability category, subsequently refused to award him the entitlements provided for by law. The court concluded that, in so far as the applicant “[had] not furnish[ed] proof that he now belonged to the category of persons with a more severe disability, which might have qualified him for a wider range of entitlements”, his complaint was unfounded. It dismissed the action accordingly.
28. The applicant appealed to the Supreme Court of Justice on the ground that the Court of Appeal had misconstrued the subject of his action, that it had omitted to rule on his complaint concerning the suspension of his entitlements under Law no. 53/1992 and that the second-degree disability he had been recognised as suffering from made him eligible for the aggregate of entitlements under the two laws.
29. At a hearing held on 25 February 2003 the applicant requested that examination of his appeal be adjourned on account of his state of health, which allegedly prevented him from attending the hearing. The hearing was scheduled for 27 May 2003 and then for 21 October 2003. It took place on the latter date.
30. From 6 to 15 May 2003 the applicant received in-patient treatment in the emergency ward of Ploieşti County Hospital.
31. In an order dated 7 May 2003 the County Pensions Office decided that the applicant should be granted a retirement pension on grounds of invalidity.
32. On 22 May 2003 the Board found that the applicant's condition had worsened and that he now suffered from a first-degree disability.
33. In a judgment of 4 November 2003 the Supreme Court of Justice dismissed the applicant's appeal and upheld the Court of Appeal's judgment of 14 June 2002. It considered that “since the appellant [had] not dispute[d] [the certificate attesting to his disability] before the Higher Medical Expert Reports Board, in accordance with the statutory provisions, the Court of Appeal [had] correctly held that he could not claim the entitlements provided for by Ordinance no. 102/99”.
34. Following further episodes of bleeding the applicant was again admitted to the emergency ward of Ploieşti County Hospital, where he remained from 25 to 30 March and from 10 to 18 December 2004. Between 29 May and 1 June 2005 he again received in-patient treatment in the Colţea Haematology Clinic in Bucharest.
35. The Administrative Disputes Act (Law no. 29/1990) provides, in its relevant parts:
“Individuals or legal entities who consider that their rights have been infringed by an administrative act or by the unjustified refusal of an administrative authority to respond to a request concerning those rights may bring an action before the competent court seeking to have the act in question set aside, to have the alleged right recognised and to be awarded compensation for any damage sustained.”
“The court shall give an urgent ruling on the action...”
36. The relevant extracts from Law no. 53/1992 on special protection for disabled persons read as follows:
“Classification in one of the categories of disabled persons requiring special protection shall be based on a certificate issued by one of the medical expert reports and occupational rehabilitation boards attached to the county hospitals...”
“Disabled persons shall have the right to:
(a) medical assistance and medication free of charge ... in the case of persons whose monthly income is below the gross minimum wage guaranteed by the State...
...
(e) free use of urban ... and inter-urban public transport...
...
(f) exemption from payment of the costs of telephone installation, transfer and rental...”
37. The relevant provisions of Government Emergency Ordinance no. 102/1999 of 29 June 1999 on special protection and access to employment for disabled persons, which replaced Law no. 53/1992, read as follows:
“Classification in one of the categories of disabled persons requiring special protection ... shall be based on a certificate issued by the [county] boards on medical expert reports and disability issues.”
“... adults suffering from a disability shall qualify for the following entitlements:
...
(f) exemption from payment of the costs of telephone installation, transfer and rental...
(g) free use of urban public transport...
(h) free use of inter-urban public transport...
...
(j) medical assistance in accordance with the provisions of the Social Health Insurance Act and the regulations of the Ministry of Health and the State Secretariat for Disabled Persons.”
“The boards on medical expert reports and disability issues shall be attached [from 1 January 2000] to the county disabled persons' bureaux.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22397
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GÖRGES v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Uwe Görges, is a German national, who was born in 1946 and lives in Hamburg, Germany. He is represented before the Court by Hans Kober, a lawyer practising in Hamburg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In spring 1986, criminal investigations were initiated against the applicant on the suspicion of his participation in planning several transactions of illegal sales of weapons to the Republic of Iran.
On 30 September 1991, the Hamburg District Court convicted the applicant of several counts of offences under the Law to Control International Weaponry (Kriegswaffenkontrollgesetz). It found that he had counselled and participated in planning the illegal sales of weapons to the Republic of Iran. The applicant was sentenced to seven months’ imprisonment on probation.
On 20 July 1994, the Hamburg Regional Court, upon the applicant’s appeal, amended the District Court’s decision to the effect that he was found guilty of only one offence under the Law to Control International Weaponry. It imposed a fine amounting to 90 daily rates of 60 DEM (approximately 30 Euro).
On 2 September 1996, following the applicant’s appeal on points of law, the Hanseatic Court of Appeal repealed this decision and referred the case back to a different chamber of the Hamburg Regional Court. It found that the procedural delays caused by judicial organs had not been taken into account by the lower court.
On 11 April 1997, the Hamburg Regional Court confirmed its decision of 20 July 1994. It briefly mentioned the delays in proceedings, but found that, bearing in mind the gravity of the offence, 90 daily rates was the lowest possible sentence.
On 15 October 1997, the Hanseatic Court of Appeal, following the applicant’s second appeal on points of law, also quashed the decision of April 1997 and referred the case back to yet another chamber of the Hamburg Regional Court. It found that the judicial organs had unnecessarily prolonged proceedings for more than four years and that this constituted a violation of the German Basic Law (Grundgesetz) and of Article 6 of the Convention. However, it found that, contrary to the applicant’s submissions, this did not constitute a procedural impediment that would warrant for proceedings to be discontinued. Finally, the Court of Appeal noted that in its decisions, the Regional Court had failed to show if and to what extent the excessive length of proceedings had an effect on the sentence.
On 13 January 1998, the Hamburg Regional Court amended the decisions of 20 July 1994 and 2 September 1996 while changing the sentence to the effect that the fine was reduced to 80 daily rates of 60 DEM.
It found that the following delays had been unnecessary and were attributable to the judicial organs: although the Office of the Public Prosecutor of Hamburg had been in possession of most of the relevant information by December 1988, the indictment was not submitted before July 1990, which amounted to a delay of about one year and five months. The District Court’s decision of 30 September 1991, having been finalised for service on 9 December 1991, was not served upon the applicant before 11 March 1992, i. e. three months later. The proceedings were not furthered between April 1992 and April 1993, when the case was transferred to another Chamber of the Regional Court. In appeal proceedings before the Hanseatic Court of Appeal, the Office of the Public Prosecutor took about one year and eight months (October 1994 - June 1996) to submit its memorial to the Court of Appeal. These delays amounted to four years in total.
The Regional Court found that the delays and the excessive length of proceedings were in breach of the German Basic Law and Article 6 of the Convention. Having regard to all circumstances, the Regional Court concluded that the procedural delays did not require that the proceedings be discontinued. Weighing all personal mitigating and aggravating factors, the Regional Court found that, without taking account of the procedural delays, it would have imposed a fine of 120 daily rates of 60 DEM. It reduced the fine to 90 daily rates, on account of the above-mentioned delays in the past, and, in a second step, further reduced the fine to 80 daily rates, considering the further delays caused by the appeal proceedings.
On 26 April 1999, the Hanseatic Court of Appeal rejected the applicant’s appeal.
On 28 June 1999, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. The Federal Constitutional Court found, in particular, that the Hamburg Regional Court had given a detailed account of the delays attributable to the judiciary and had taken these delays into account when reducing the fine by 40 daily rates. The reduced fine did not reach the statutory limits for inclusion in a certificate of good conduct (Führungszeugnis) and would be removed from the applicant’s criminal record after the minimum statutory period. The Regional Court had therefore sufficiently reduced the sentence on account of the procedural delays.


ITEMID: 001-96264
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AKYAZICI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 4. The applicant, an anaesthesiologist, was born in 1968 and lives in Samsun.
5. The applicant was working at the Kars State Hospital when criminal proceedings were instigated against him for alleged involvement in the activities of an illegal organisation. He was accused together with other suspects of, inter alia, hanging posters and banners in various places in Ankara on behalf of that organisation. Throughout the proceedings the applicant maintained his innocence. In the meantime, Kars State Hospital suspended the applicant pending the criminal proceedings.
6. On 11 September 2001 the Ankara State Security Court, on the basis of the evidence contained in the case file, convicted the applicant under Article 7 § 1 of Law no. 3713 and sentenced him to two years and six months' imprisonment and to a fine. The applicant appealed.
7. On an unspecified date a written opinion of the principal public prosecutor at the Court of Cassation dated 10 December 2001 was submitted to that court. This opinion was not communicated to the applicant.
8. On 27 March 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in respect of the applicant.
9. The applicant's request for a rectification of the Court of Cassation's judgment was dismissed by the principal public prosecutor at that court.
10. The applicant submitted that he had been released from prison in July 2003.
11. By an additional judgment dated 4 May 2004, the Ankara State Security Court, taking into account the amendment to the definition of “terror acts” under section 7 of Law no. 3713 pursuant to Law no. 4928, acquitted the applicant, who had not taken part in any violent activities, and nullified his conviction, together with all its consequences. This judgment became final on 11 May 2004.
12. In the meantime, on 28 February 2002, the Supreme Disciplinary Commission of the Ministry of Health decided to dismiss the applicant from the civil service. The applicant's objection to this decision was dismissed by the administrative court who noted, inter alia, that, according to the disciplinary investigation, the applicant had taken fifteen days leave from 2 June 2000 in pursuit of his illegal activities. The court also noted that the applicant's conviction had become final. This decision was subsequently upheld by the Supreme Administrative Court on 27 December 2005. In his observations the applicant submitted that, despite his acquittal, his request for a retrial had been rejected by the administrative court. However, he did not submit any court decisions.
13. According to an attestation dated 10 September 2007 the applicant is currently employed at Atasam hospital in Samsun.
14. The relevant domestic law and practice in force at the material time and subsequent changes to domestic legislation are outlined in the following judgments; Göç v. Turkey, [GC], no. 36590/97, § 34, ECHR 2002-V, and Erdal Taş v. Turkey, no. 77650/01, §§ 18-19, 19 December 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-58498
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GAST AND POPP v. GERMANY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 6. The facts of the case, as found by the Commission and not contested before the Court, are as follows.
7. The first applicant, Mrs Gabriele Gast, is a German national, born in 1943. She is a political scientist by profession and lives in Neuried.
8. The second applicant, Mr Dieter Popp, is also a German national, born in 1939. He is an insurance agent by profession and lives in Bonn.
9. In 1990 criminal proceedings were initiated against the first applicant on suspicion of having committed espionage (geheimdienstliche Agententätigkeit). She was arrested on 30 September 1990 and taken into detention on remand on 1 October 1990.
10. The trial of the first applicant and three co-accused was held before the Bavarian Court of Appeal (Oberlandesgericht) sitting as a court of first instance over several days in November and December 1991. In these and the following proceedings, the first applicant was assisted by counsel.
11. On 19 December 1991 the Court of Appeal convicted the first applicant and the co-accused of espionage on behalf of the German Democratic Republic (GDR), pursuant to Article 99 § 1 (1) of the German Criminal Code (Strafgesetzbuch). The first applicant was sentenced to six years and nine months’ imprisonment. The first applicant was also deprived for a period of four years of the rights to hold public office, to vote and to be elected. The co-accused were sentenced to two years, one year and six months, and one year’s imprisonment on probation respectively.
12. The court found that in 1968, in the course of her studies and research for her thesis in political science, the first applicant had been contacted by agents of the Ministry for State Security (Ministerium für Staatssicherheit), the secret service of the GDR. On the occasion of a meeting in the east sector of Berlin at the end of 1968 or the beginning of 1969, she had agreed to work for the Ministry concerned. She had kept the Ministry informed about her work at a research institute between July 1972 and June 1973. Subsequently, upon her employment by the Federal Intelligence Service (Bundesnachrichtendienst), she had forwarded secret information such as reports prepared by German embassies, and in particular reports prepared by the Intelligence Service itself, to the secret service of the GDR. The first co-accused, living in Munich, had operated as courier; the two other co-accused had been agents of the secret service of the GDR and had also been living there.
13. The Court of Appeal found that the first applicant and the co-accused had thereby committed espionage. As regards the co-accused, the court, referring to a decision of the Federal Court of Justice (Bundesgerichtshof) of 29 May 1991, observed that there was no legal impediment to punishing them; however, the fact that their prosecution had only been possible following the German reunification had to be regarded as a mitigating circumstance.
14. In fixing the first applicant’s sentence, the Court of Appeal regarded as mitigating circumstances in particular that she had no criminal record, had a regular life and had also shown helpfulness in taking care of a handicapped child. She had got involved in her criminal conduct due to her relationship with one of the co-accused and she had not managed to discontinue her contacts with the secret service of the GDR. Moreover, due to a lack of adequate controls, she had had no particular difficulties in obtaining and forwarding the information concerned. Moreover, she had not obtained any financial advantage, but she would suffer serious professional disadvantage as a consequence of her conviction. Finally, the Court of Appeal took into account that the first applicant had largely admitted her guilt. However, in view of the aggravating circumstances, in particular the lengthy period of the first applicant’s involvement in espionage as well as the volume of secret information forwarded, the Court of Appeal regarded a prison sentence of six years and nine months appropriate.
15. On 24 June 1992 the Third Division of the Federal Court of Justice, sitting with five judges, dismissed the first applicant’s appeal on points of law (Revision).
16. On 12 February 1994 the first applicant was released, having served half of her sentence.
17. In April 1990 criminal proceedings were initiated against the second applicant on suspicion of having committed espionage. On 14 May 1990 the second applicant was arrested and taken into detention on remand.
18. The trial of the second applicant and one co-accused was held before the Düsseldorf Court of Appeal sitting as a court of first instance over several days in December 1991. In these and the following proceedings the second applicant was assisted by counsel.
19. On 23 December 1991 the Court of Appeal convicted the second applicant and the co-accused of espionage on behalf of the GDR, pursuant to Article 99 §§ 1 (1) and 2, first sentence, of the Criminal Code. The second applicant was sentenced to six years’ imprisonment. The second applicant was also deprived for a period of four years of the rights to hold public office, to vote and to be elected. The forfeiture of a sum of money amounting to 70,000 German marks was ordered. The co-accused was sentenced to two years’ imprisonment on probation, and he was deprived for a period of two years of the rights to hold public office, to vote and to be elected.
20. The Court of Appeal found that in the second half of the 1960s the second applicant had been contacted by agents of the Ministry for State Security. At the latest in 1969, he had agreed to work for the Ministry in question. The co-accused had acted as contact agent (Führungsoffizier). The second applicant had incited his friend to commit espionage on behalf of the GDR. His friend, who had died in 1989, had worked for the Federal Ministry of Defence and had had access to secret, and partly top secret, information. The applicant’s friend had taken copies of secret documents, or originals thereof, to his home where the originals had been photographed; copies and films had subsequently been forwarded by the second applicant to the co-accused.
21. The Court of Appeal observed that the second applicant and the co-accused had thereby committed espionage, within the meaning of Article 99 of the Criminal Code, which had been punishable at the time of their offences and had remained punishable following the accession of the GDR to the Federal Republic of Germany (FRG), as regulated in the German Unification Act (Gesetz zu dem Vertrag vom 31. August 1990 zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands) of 23 September 1990. As regards the second applicant, the court noted that he had acted as a citizen of the FRG against his own country. There was no appearance of a violation of his right to equal treatment. In particular, the German legislator was not obliged to enact legislation granting an amnesty or to limit the application of the provisions on espionage and treason. Finally, he could not be compared to secret agents of the Federal Intelligence Service who, irrespective of the different goals of the secret services concerned, acted on behalf of their own country and not against it. As regards the co-accused, the court, referring to a decision of the Federal Court of Justice of 29 May 1991, observed that there were no rules of public international law prohibiting a State from punishing foreigners having committed espionage abroad. Moreover, taking into account the different goals of the Federal Intelligence Service and the secret service of the GDR, his prosecution for espionage did not amount to discrimination against him, and the secret agents of the GDR could not have any legitimate expectation that they would not be punished for their conduct following the accession of the GDR to the FRG.
22. In fixing the second applicant’s sentence, the Court of Appeal regarded as mitigating circumstances in particular that he had no criminal record, had a regular life and had not committed espionage primarily for financial purposes, but had pursued political ideas. However, in view of the aggravating circumstances, in particular the lengthy period of the second applicant’s involvement in espionage, the involvement of his late friend, the kind of secret information forwarded as well as reasons of general crime prevention, the Court of Appeal regarded a prison sentence of six years appropriate. As regards the co-accused, the Court of Appeal took into account the fact that he was a citizen of the GDR and a secret agent acting from within that territory.
23. On 22 July 1992 the Third Division of the Federal Court of Justice, sitting with five judges, dismissed the second applicant’s appeal on points of law.
24. On 11 May 1994 the second applicant was released, having served two-thirds of his sentence.
25. The first applicant appealed to the Federal Constitutional Court on 18 July 1992. Following indications as to certain formal shortcomings in her constitutional complaint, she filed supplementary submissions on 18 August 1992. Her case was registered on 27 August 1992. The second applicant’s constitutional complaint of 13 August 1992 was received by the Federal Constitutional Court on 14 August 1992.
26. The processing of the applicants’ and other similar cases was postponed as the Second Division of the Federal Constitutional Court envisaged rendering a leading decision in some test cases, that is, the application for a ruling submitted by the Berlin Court of Appeal in July 1991 as well as two constitutional complaints. In 1993 a third constitutional complaint, covering general aspects, was added to the test cases. On 23 March 1994 the Second Division, having considered the further action to be taken in these cases, ordered the preparation of an expert opinion on questions of international public law. The expert opinion, which should initially have been ready by mid-August 1994, was received by the Second Division on 11 July 1994. The parties in the test cases were given an opportunity to submit comments before the end of August 1994. Deliberations were taken up again in November 1994, but again suspended between December 1994 and March 1995. However, during that period, a first draft of the decision was prepared.
27. On 15 May 1995 the Second Division of the Federal Constitutional Court rendered the said leading decision (2 BvL 19/91 and others – see paragraphs 43 et seq. below).
28. On 23 May 1995 the Second Section of the Second Division of the Federal Constitutional Court, in separate decisions, refused to admit the first and second applicants’ constitutional complaints. The Constitutional Court referred to sections 93a and 93b of the Federal Constitutional Court Act and to the decision of the Second Division of 15 May 1995, which was attached to the decisions in the applicants’ cases. The first applicant received the decision on 9 June 1995. The second applicant’s counsel received the decision on 3 June 1995, and the second applicant himself on 21 June 1995.
29. Under the criminal law of the FRG, treason (Landesverrat) is punishable under Article 94 and espionage (geheimdienstliche Agententätigkeit) under Article 99 of the Criminal Code (Strafgesetzbuch). The provisions of the Criminal Code are applicable to offences committed within the territory of the FRG (Inlandstaten), pursuant to Article 3 of the Criminal Code. According to Article 5 § 4, Articles 94 and 99 are also applicable to offences committed abroad (Auslandstaten).
30. The Criminal Code of the GDR also contained provisions regarding the punishment of espionage and treason to the disadvantage of the GDR or one of its allies. These provisions extended to espionage on behalf of the FRG.
31. The Treaty between the Federal Republic of Germany and the German Democratic Republic on German Unification (Einigungsvertrag) of 31 August 1990 abolished, with effect from 3 October 1990, the Criminal Code of the GDR and extended the applicability of the criminal law of the FRG to the territory of the GDR (with some exceptions irrelevant in the present context).
32. In the course of the negotiations on the above Treaty, an amnesty for persons having committed espionage on behalf of the GDR was considered; however, this matter was not pursued on account of reservations among members of the general public and of envisaged difficulties in the Federal Diet (Bundestag). Further attempts to introduce such an amnesty in 1990 and 1993 remained unsuccessful.
33. Under the terms of Article 93 § 1 of the Basic Law (Grundgesetz), the Federal Constitutional Court shall rule, inter alia, on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 § 4, 33, 38, 101, 103 and 104 of the Basic Law.
34. Article 100 § 1 of the Basic Law provides, inter alia, that, where a court considers unconstitutional a law whose validity is relevant to its decision, the proceedings shall be stayed and the question submitted to the Federal Constitutional Court if the Basic Law is considered to have been breached. According to paragraph 2 of this provision, where a court has doubts whether a rule of public international law is an integral part of federal law and whether such a rule directly creates rights and duties for the individual, the question shall be submitted to the Federal Constitutional Court.
35. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht). The 1985 version of the Federal Constitutional Court Act (applicable with effect from 1 January 1986) was subsequently amended with a view to reducing the court’s workload. The amendments adopted in 1993 (which came into force on 11 August 1993), among other things, reorganised the procedure for individual complaints (sections 93a-93d of the 1993 Federal Constitutional Court Act).
36. According to section 2 of the Act, the Federal Constitutional Court is made up of two divisions, each composed of eight judges.
37. Sections 90 to 96 of that Act concern constitutional complaints lodged by individuals.
“(1) Any person who claims that one of his basic rights or one of his rights under Articles 20 § 4, 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court.
(2) If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.
...”
“The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.”
38. Sections 93a to 93c of the 1985 Act provided as follows:
“A complaint of unconstitutionality shall require acceptance prior to a decision.”
“(1) A Section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if -
1. the complainant has not paid the required advance at all (section 34(6)) or has not paid it on time,
2. the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons, or
3. the Division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section 93c below.
The order shall be final.
(2) The Section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because the Federal Constitutional Court has already decided on the relevant question of constitutional law...
(3) The decisions of the Section shall be taken without oral pleadings. In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused, it is sufficient to refer to the legal aspect determining the refusal.”
“If the Section neither refuses acceptance of a complaint of unconstitutionality nor upholds it, the Division shall then decide on acceptance. It shall accept the complaint of unconstitutionality if at least two judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant. Section 93b(3) above shall apply mutatis mutandis.”
Sections 93a to 93d of the 1993 Act read:
“(1) A complaint of unconstitutionality shall require acceptance prior to a decision.
(2) It is to be accepted,
a. if it raises a constitutional issue of general interest,
b. if this is advisable for securing the rights mentioned in section 90(1); or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage for the complainant.”
“The Section may refuse acceptance of a complaint of unconstitutionality or accept it in the event of section 93c. In other cases, the Division shall decide on acceptance.”
“(1) If the conditions of section 93a(2)(b) are met and the Federal Constitutional Court has already decided on the relevant question of constitutional law, the Section may uphold the complaint of unconstitutionality if it is clearly justified...”
“(1) The decision pursuant to sections 93b and 93c shall be taken without oral pleadings. It is unappealable. The order by which acceptance of a complaint of unconstitutionality is refused does not require any reasoning.
...”
39. Section 94 provides for the right of third parties to be heard in complaint proceedings in the Federal Constitutional Court.
40. Section 95 concerns the ruling of the Federal Constitutional Court if the complaint is upheld and reads:
“(1) If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission. The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law.
(2) If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision and in cases pursuant to the first sentence of section 90(2) above it shall refer the matter back to a competent court.
(3) If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void. The same shall apply if a complaint of unconstitutionality pursuant to paragraph 2 above is upheld because the quashed decision is based on an unconstitutional law. Section 79 shall apply mutatis mutandis.”
41. Section 79, to which section 95(3) refers, provides:
“(1) In the event that a final conviction is based on a legal provision, which has been declared incompatible with the Basic Law or has been declared null and void pursuant to section 78, or based on the interpretation of a legal provision, which has been declared incompatible with the Basic Law by the Federal Constitutional Court, a reopening of the criminal proceedings is admissible, in accordance with the provisions of the Code of Criminal Procedure.
(2) In all other respects, subject to the provisions of section 95(2) or a specific statutory provision, final decisions based on a rule declared null and void pursuant to section 78 shall remain unaffected. Such decisions shall not be enforceable...”
42. The Federal Constitutional Court may issue an interim injunction (einstweilige Anordnung) in order to avoid serious disadvantages (zur Abwehr schwerer Nachteile), to prevent imminent violence (zur Verhinderung drohender Gewalt) or for another important reason in the general interest (aus einem anderen wichtigen Grund zum gemeinen Wohl), pursuant to section 32 of the Constitutional Court Act.
43. On 22 July 1991 the Berlin Court of Appeal (Kammergericht) suspended criminal proceedings relating to charges of espionage, treason and corruption in order to obtain a decision by the Federal Constitutional Court on the question whether persons who had been living in the GDR and had committed the above offences from the territory of the GDR could be prosecuted. Furthermore, in 1991 and later, numerous persons convicted of such offences lodged constitutional complaints with the Federal Constitutional Court, claiming that their respective convictions violated in particular their rights of liberty, as guaranteed under Article 2 § 2 of the Basic Law, as well as their right to equality, as guaranteed under Article 3.
44. On 15 May 1995 the Second Division of the Federal Constitutional Court rendered a leading decision on the request submitted by the Berlin Court of Appeal and three of the constitutional complaints.
45. The request submitted by the Berlin Court of Appeal was declared partly inadmissible; as regards the remainder, the Federal Constitutional Court held that there was no rule of public international law, forming an integral part of federal law, prohibiting criminal prosecution of espionage committed on behalf and within the territory of a State which had later peacefully become part of the State spied upon. Furthermore, as regards the first of the three constitutional complaints, it found that the complainant’s conviction violated his constitutional rights; the first- and second-instance judgments were set aside and the case was referred back to the first-instance court. With regard to the second individual case, the sentencing was found to have violated constitutional rights, the judgments of the lower courts were, to that extent, set aside and the matter was referred back to the first-instance court. The third constitutional complaint was dismissed.
46. In its decision, the Federal Constitutional Court recalled its case-law according to which the prosecution for treason and espionage as provided for under Articles 94 and 99 of the Criminal Code amounted to an interference with the rights of liberty under Article 2 of the Basic Law which was justified from a constitutional point of view. This finding also applied to the extent that secret agents of the GDR were liable to punishment even if they had only acted within the territory of the GDR or abroad. In this respect, the Constitutional Court considered that the relevant provisions of the Criminal Code aimed at protecting the external security of the FRG, and took into account that the offences in question had been committed at a time when the FRG was particularly exposed to secret service operations of its enemies.
47. However, according to the Constitutional Court, the question arose whether or not the accession of the GDR to the FRG required a new appraisal of the constitutional issues, in particular with regard to espionage committed from the territory of the GDR by persons who were citizens of the GDR and living there.
48. The Constitutional Court found that the fact that espionage on behalf of the GDR was prosecuted as a criminal offence whereas the criminal provisions of the GDR regarding espionage committed by agents of the Federal Intelligence Service had been repealed in the context of the Unification Treaty did not amount to discrimination. Rather, such difference in treatment resulted from the particularities of national security rules (Staatsschutzrecht), which protected the State against espionage by foreign powers. Thus, espionage against the FRG on behalf of the GDR remained a punishable act even after the accession of that State.
49. Moreover, the punishment for espionage on behalf of the GDR following the reunification of Germany did not breach any general rules of public international law, contrary to Article 25 of the Basic Law. The Constitutional Court, having regard to a legal opinion of the Heidelberg Max Planck Institute for foreign public law and public international law of 1 July 1994, observed that, under public international law, a State was entitled to enact legislation relating to criminal offences committed within its territory as well as to offences committed by foreigners abroad to the extent that its existence or important interests were at risk. There was no justification for espionage under public international law and there were no rules on the criminal liability for espionage following the accession of another State.
50. Furthermore, the prosecution of espionage on behalf of the GDR on the basis of the criminal laws in force in the FRG at the time of the offences concerned did not amount to a violation of the rule that no act could be prosecuted unless it was not a criminal offence under the relevant law at the time when it was committed. The Constitutional Court noted that the scope of the provisions on treason and espionage was determined by Articles 3, 5 and 9 of the Criminal Code, which had been in force before the time of the offences in question. The extension of the jurisdiction of the FRG regarding such offences was a consequence of the accession of the GDR and the Unification Treaty.
51. The Constitutional Court next examined whether or not the results of this extension of the jurisdiction of the FRG amounted to a breach of the rule of law (Rechtsstaatsprinzip) and, in particular, the principle of proportionality.
52. The Constitutional Court found that, in the unique situation of the German reunification, the prosecution of citizens of the GDR, who had been living in the GDR and had acted solely within the territory of the GDR or of other States where they were safe from extradition or punishment, violated the principle of proportionality. Consequently, there was a technical bar to prosecution (Verfolgungshindernis) regarding this group of persons. Criminal prosecution and punishment as a means of protecting legal interests should not result in a disproportionate interference with the rights of the persons concerned.
53. In this context, the Constitutional Court considered the difference between the punishment for espionage and for other criminal offences. Public international law did not prohibit espionage, but it also allowed the State spied upon to punish spies even if they had only acted abroad. There was no differentiation between espionage on behalf of a totalitarian State and espionage on behalf of a State with a free democratic basic order. Thus, espionage had an ambivalent nature: it served the interests of the observing State, where it was accordingly regarded as lawful, and prejudiced the interests of the State being spied upon, where it was therefore regarded as a punishable offence. Punishment of foreign spies was not, therefore, justified on account of a general moral value judgment of reproach (Unwerturteil) regarding the espionage act, but only for the purpose of protecting the State spied upon.
54. According to the Federal Constitutional Court, the fall of the GDR, and the consequent termination of any protection for its spies, together with the replacement of its legal order by that of the FRG, which rendered prosecution possible, resulted in a disproportionate prejudice towards the group of offenders who had committed espionage on behalf of the GDR solely within the latter’s territory and had not left the sphere of its protection, or had only been within the territory of other States where they had not risked extradition or punishment in respect of such acts. The reunification had at the same time repealed the punishment of espionage activities on behalf of the FRG. The court further found that any punishment of this group of persons would jeopardise the process of creating German unity.
55. With regard to other citizens of the GDR who had committed espionage within the territory of the FRG or one of its allies, or in a third State where they had risked extradition or punishment, there was no general bar to prosecution as the above conditions were not necessarily all met. However, those persons had, as a consequence of the fall of the GDR, also lost the protection of that State, if only the expectation of being exchanged in case of arrest. Moreover, even confronted with the legal order of the FRG, these persons’ sense of wrongdoing (Unrechtsbewußtsein) was attuned to the legal order of the GDR. Above all, they were meanwhile prosecuted by their own State in respect of espionage activities committed at a time when they regarded that State as a foreign State. In such cases all relevant circumstances had to be weighed in the light of the above considerations with a view to determining whether or not prosecution should be continued, or in fixing the sentence.
56. In their separate opinion to the Federal Constitutional Court’s judgment, three judges of the Second Division explained that they disagreed with the judgment as far as the finding of a technical bar to the prosecution of a group of persons having committed espionage was concerned.
57. Mrs Gabriele Gast and Mr Dieter Popp applied to the Commission on 1 May 1995. They alleged, inter alia, a violation of Article 6 § 1 of the Convention as regards the length of the proceedings before the Federal Constitutional Court.
58. The Commission declared the application (no. 29357/95) partly admissible on 20 October 1997. In its report of 28 May 1998 (former Article 31 of the Convention) , it expressed the opinion, by twenty votes to eleven, that there had been no violation of Article 6 § 1.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4898
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HOLDRY v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1957, is a French national and resident in Triel-sur-Seine. He is a technician by profession. In the proceedings before the Court, he is represented by Me N. Creuzillet, a lawyer practising in Paris.
In 1986 the applicant married a German national in France, and two children were born in wedlock in 1986 and 1989.
Apparently in 1992, the applicant’s wife separated from the applicant and returned to Germany with the two children. She instituted divorce proceedings with the Memmingen District Court (Amtsgericht). Moreover, divorce proceedings were instituted with the Versailles tribunal de grande instance. In March 1993 the Memmingen District Court granted the applicant’s claim under the Hague Convention on the Civil Aspects of International Child Abduction (Haager Übereinkommen über die zivilrechtlichen Aspekte internationaler Kindesentführung) that the children be returned to France. Upon appeals lodged by the competent Youth Office and the applicant’s wife, his claims was dismissed by the Augsburg Civil Sections (Zivilsenate) of the Munich Court of Appeal (Oberlandesgericht) in May 1993. In June 1993 the Memmingen District Court granted the applicant’s wife custody of the children pending the spouses’ separation. However, in July 1993 the Versailles Regional Court decided that the children should live at the applicant’s place of residence. In March 1994 the Versailles tribunal de grande instance granted the applicant custody of the children.
In July 1994 the applicant applied with the Memmingen District Court for a right of access (Umgangsrecht) to his children in August 1994 and during the Christmas holidays, as well as a regular access during these holiday periods, which he intended to spend with them in France. He also requested information about his children. He further applied for an interim injunction.
In these court proceedings, both spouses were represented by counsel.
On 4 August 1994 the Memmingen District Court dismissed the applicant’s request for an interim injunction. The defendant had accepted his right to information.
On 23 November 1994 the Memmingen District Court dismissed the applicant’s request for access. The court observed that the applicant wished to spend holidays with his children in France, while the defendant, suggesting supervised visits, objected to uncontrolled access. The court considered that, despite his assurances, there was a real risk that the applicant would not return the children at the end of the holidays and thereby create a danger for their well-being. In this respect, the court had regard to the course of the spouses’ separation and divorce proceedings. Having regard to an expert opinion prepared in the context of the custody proceedings, it noted that the children had a very good relationship with their mother and that they were fully integrated at their place of residence. Moreover, given the legal situation in France, the applicant’s assurances that he would return the children at the end of the holidays were not sufficient. In this respect, the court noted that he was not prepared to accept that the children were living with the defendant and that she had custody.
On 12 April 1995 the Munich Court of Appeal dismissed the applicant’s appeal. The court, referring to section 1634 of the Civil Code (Bürgerliches Gesetzbuch), confirmed that granting the applicant a right of access including the right to take the children to France was - for the time being - contrary to the children’s well-being. The court noted that the applicant had expressly stated that he did not apply for access to his children in Germany; and that this matter was not, therefore, at issue in the proceedings.

Under section 1634 of the Civil Code, the parent not holding custody is entitled to have access to the child. This right of access may be suspended if such a measure is necessary in the best interest of the child.
In this respect, the Court of Appeal noted that the children, when questioned by a single judge in March 1995, had indicated that they were only prepared to visit the applicant in France if accompanied by their mother. They feared to loose the security of their mother’s presence. According to a psychological expert opinion of February 1993, separating the children from their mother entailed a risk for their well-being.
On 13 June 1995 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). The Constitutional Court considered that the constitutional complaint raised no issue of fundamental importance. In particular, the impugned court decisions did not disclose any discrimination against the applicant, but was reasoned by the risk that the applicant might separate the children from their mother. Moreover, the applicant had not been generally refused a right of access, but only in the concrete circumstances and having regard to the children’s well-being. The possibility to visit the children in Germany was not excluded. The decision was served upon the applicant’s counsel on 20 June 1995.
Meanwhile, on 9 May 1995 the Versailles tribunal de grande instance, in a default judgment, had granted divorce. It had further decided that both parents had joint custody of the children and that the children should live with their mother. As regards access, it decided that, in case of disagreement between the parents, the applicant had a right of access to the children during all short school holidays and half of the summer holidays.


ITEMID: 001-81958
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF INKOVTSOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1942 and lives in Sevastopil.
5. In 1996 the applicant, at the material time an employee of the National Maritime Institute (the “Institute”; Морський гідрофізичний інститут Національної Академії Наук України), provided services of a typist and a linen-keeper on board the Institute's ship, which was chartered by the private company “Sata” (the “Company”; Мале приватне підприємство “Сата”) for international sea voyages. Pursuant the contract between the Institute and the Company, the latter was responsible for the payment of trip allowances (іноземна валюта взамін добових) to the crew.
6. On 14 January 1997 the applicant instituted civil proceedings in the Leninsky District Court of Sevastopil (the “District Court”; Ленінський районний суд м. Севастополя) against the Institute, seeking salary and trip allowance arrears in the amounts of 414.66 Ukrainian hryvnyas (UAH) and 1,422 U.S. dollars (USD) respectively. The Company was summoned to participate in the proceedings on the defendant's side.
7. On 11 March 1997 the District Court, having heard the case in the Company's absence, allowed the applicant's claims in full, having awarded her the salary arrears from the Institute and the trip allowance arrears from the Company. This decision became final.
8. On 19 September 1997 the Presidium of the Sevastopil City Court (the “City Court”; Севастопольський міський суд), following a “protest” lodged by its President, quashed the judgment of 11 March 1997 in respect of the trip allowance award by way of supervisory review procedure and remitted the case for a fresh consideration in that respect. Particularly, the Presidium found that the District Court had insufficiently explored the contractual relationship between the parties and their payment obligations towards the applicant in the light of the applicable law.
9. On 25 November 1997 the District Court, having held one hearing for which only the applicant appeared, ordered the Institute, as her employer, to pay her the full amount claimed. The Company had not been summoned to participate in the proceedings.
10. On 20 January 1998 the City Court quashed this judgment on the Institute's appeal in cassation and remitted the case for a fresh consideration. It found that the District Court again had insufficiently explored the contractual relationship between the parties and that it should have summoned the Company to participate in the proceedings. The court further considered that it was not necessary for it to assume first-instance jurisdiction over the case, as the matter was not complex.
11. On 5 March 1998 the City Court returned the case-file to the District Court. The District Court summoned the Company to participate in the proceedings as a co-defendant and between April and May 1998 scheduled three hearings, two of them being adjourned on account of a co-defendant's absence.
12. On 12 May 1998 the District Court heard the case in the Company's absence and found the Company liable to pay the applicant USD 1,422 in trip allowance arrears converted into the national currency. In its reasoning the court referred to the provisions of the freight contract and partial payments made by the Company to this end. The Company appealed, but its appeal was returned as “not lodged” on account of its failures to comply with procedural formalities. The judgment became final.
13. On an unspecified date the Company paid the applicant UAH 300 of the award due.
14. On 27 October 2000 the City Court quashed the judgment of 12 May 1998 by way of supervisory review procedure, following a “protest” lodged by its President, and remitted the case for a fresh consideration to the District Court. In particular, the Presidium noted that the District Court had not given due regard to the fact that the applicable law allowed the applicant to claim trip allowance from either her employer or the ship charterer, irrespective of the fact that the freight contract vested the payment obligation in the latter.
15. Between April and August 2001 the court held three hearings, one of them adjourned on account of the applicant's absence. On 8 August 2001 the District Court, having heard the testimonies of the parties and the ship captain, dismissed the applicant's claims. In particular, it found that the documentary evidence necessary to establish the existence and amount of the debt was not in accordance with applicable accounting rules and therefore insufficient.
16. On 28 September 2001 the District Court found that the applicant's appeal against the judgment of 8 August 2001 did not comply with the requirements of procedural law and gave her a time-limit to rectify its shortcomings. On 11 October 2001 the District Court found that the applicant had insufficiently followed its instructions and returned the appeal to the applicant as “not lodged”. On 18 December 2001 the City Court upheld this decision on the applicant's appeal.
17. On 18 March 2002 the applicant lodged an appeal in cassation against the decisions to return her appeal against the judgment of 8 August 2001 as “not lodged”. On 20 May 2003 the Supreme Court rejected the applicant's request for leave to appeal in cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82677
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ELEZAJ v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr Lulzim Elezaj (the first applicant), his wife Ollga Elezaj (the second applicant) and their son Dennis Elezaj (the third applicant) are Albanian nationals, who were born in 1969, 1975 and 2004 respectively and lived in Landskrona. Before the Court the applicants, who were granted legal aid, were represented Mr Arne Augustsson, a lawyer practising in Båstad.
The Swedish Government (“the Government”) were represented by their Agent, Mr Carl Henrik Ehrenkrona of the Ministry for Foreign affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 December 2000 the Swedish authorities refused to issue a visa to the applicant spouses, who wanted to visit the first applicant’s brother in Sweden.
On 25 October 2001 the applicant spouses entered Sweden and applied for asylum. In support thereof they explained that the first applicant risked being killed in a blood feud in Albania. In the 1950s his father had killed a person in a quarrel over some real estate and in June 2001 the first applicant and his brother in Albania had been told that vengeance was imminent. The first applicant’s father had stated that he should be the object of the vengeance, but the opposing family had insisted that someone of the same age as the murdered relative should be chosen. Blood feud was an ancient phenomenon, which occurred mainly in the countryside, but in the last few years, it had become more frequent as an increasing number of persons were in possession of firearms. The applicants maintained that the police were powerless against blood feuds, and claimed to be aware of other cases of assassination due to blood feud which the police had not been capable of preventing. The first applicant’s brother had fled to the USA, whereas the first applicant had remained in Albania. Due to the threat, however, he had been forced to stay in his home and had accordingly been prevented from leading a normal life. The applicant spouses submitted a document (no. 1) issued on 6 June 2001 by the village “chief” in Pjetroshan, where the applicant spouses used to live, and a document (no. 2) issued on the same date by the chairman of the Kastrat Municipality, both confirming that the first applicant would be killed in a blood feud. The latter added that so far reconciliation attempts by the Mission on Blood Feud Reconciliation had failed.
By decision of 18 October 2002 the Migration Board (Migrationsverket) refused to grant the applicant spouses asylum. It observed that recently blood feuds had become more frequent in Albania again, particularly in the northern parts of the country where the applicants came from, and that the authorities were not always capable of protecting the citizens. Nevertheless, finding that nothing seemed to prevent the applicants from moving to another part of the country and thereby avoiding any possible actions of vengeance from the opposing family, the Board concluded that they could not be regarded as refugees within the meaning of the Aliens Act.
The applicant spouses appealed to the Aliens Appeals Board (Utlänningsnämnden) and stated that moving to another part of Albania would be to no avail since the country was so small that the opposing family would find them easily. The applicants also stated that they had settled well in Sweden and that the first applicant had found a job.
By decision of 15 October 2003 the Aliens Appeals Board upheld the decision, adhering to the reasons set out in the Migration Board’s decision.
Thereafter the applicant spouses lodged a total of six new applications for a residence permit.
In the first new application to the Aliens Appeals Board, the applicant spouses submitted that after twelve years of infertility the second applicant had finally become pregnant following in vitro fertilisation in Sweden. Due to the deportation decision, however, the second applicant had been very stressed and anxious. Thus, invoking considerations for her life and health, plus the allegedly almost nonexistent maternity care in Albania, the applicants argued that they should be granted residence permits on humanitarian grounds. They added that during pregnancy and following delivery, the possibility of avoiding the blood feud would be practically impossible. Finally, they submitted several documents concerning the second applicant’s pregnancy.
The application was refused on 1 December 2003 by the Aliens Appeals Board, which found that the circumstances invoked by the applicants were not such that they could be considered in need of protection within the meaning of the Aliens Act.
On 23 January 2004 the applicant spouses lodged their second new application to the Aliens Appeals Board and submitted inter alia a document (no. 3) issued on 5 December 2003 by Luan Poposhi, Director of the Republic of Albania Police Department, Tirana District, stating that the Police Department and the Ministry of Public Order could not protect the first applicant’s life as far as the blood feud with the named opposing family was concerned. The applicant spouses submitted a further document (no. 4), also issued on 5 December 2003, by Hasan Ukaj, President of the Albanian Association of Enmity Reconciliation. The latter indicated that the blood feud between the named families was known to the association, which had informed the authorities, which in response had stated that they would not be able to offer the first applicant protection. Both the association and the village chief had tried to intervene, but to no avail.
On 30 January 2004 the Aliens Appeals Board decided to stay the enforcement of the applicants’ deportation and on 11 February 2004 it sent documents nos. 3 and 4 to the Swedish Embassy in Rome in order to investigate their authenticity (as Sweden has no representation in Tirana, the said Embassy handles all matters regarding Albania).
On 24 March 2004 the third applicant was born. His request of 14 April 2004 for a residence permit in Sweden was immediately transferred to the Aliens Appeals Board to enable the applicants’ cases to be considered jointly.
In an assessment of 15 April 2004, submitted to the Aliens Appeals Board, the Swedish Embassy in Rome found that documents nos. 3 and 4 were forged. It specified that there was no authorisation for anyone within the Albanian police to issue any certificate about the possibility of offering someone protection. Moreover, it was very odd that a person representing a police department would make any statement on behalf of the Ministry of Public Order. Regarding the Albanian Association of Enmity Reconciliation and its representatives, they were unknown both to the Embassy and its contacts, which indicated that the organisation did not exist or was inactive. The Embassy added that according to the information provided, one of the better known Albanian organisations in the field was called “Committee of Nationwide Reconciliation”.
Having been confronted with the Embassy’s assessment, the first applicant stated that it was his father in Albania who had forwarded the documents. The first applicant had no idea whether the organisation called Albanian Association of Enmity Reconciliation was active or not. There were a lot of smaller organisations like that, of which the Embassy and its contacts could not be aware. Moreover, in his view, the fact that the Embassy had referred to the best known organisation indicated that it had been impossible for the Embassy to make a further investigation into which smaller organisations actually existed.
On 4 May 2005, before the Aliens Appeals Board the applicants submitted a document (no. 5) in Albanian issued on 30 April 2004, allegedly by Asllan Dogjani, the Chief of Police in Shkoder, and a document (no. 6), also in Albanian, issued on 4 May 2004, allegedly by Pajtim Ajazi, representing the Albanian Organisation against Blood Feuds. The applicants maintained that the documents proved that neither the police nor the organisation against blood feud could protect them upon return to Albania.
On 29 June 2004, referring among other things to the findings of the Swedish Embassy in Rome, the Aliens Appeals Board refused anew to grant the applicants a residence permit. It did not find it necessary to undertake any further investigations as to documents nos. 5 and 6.
On 13 October 2004, the applicants were reported to have absconded and the police decided to issue a warrant for their detention. The applicants stayed in hiding thereafter.
A third new application, and a request to stay the deportation order, was submitted to the Aliens Appeals Board on 26 November 2004. In this connection the applicants submitted a so-called certificate of 24 November 2004 (no. 7) signed by Gjin Marku, chairman of the Committee of Nationwide Reconciliation in Albania, together with a resolution of 17 September 2004 by the said Committee “of the Second Congress of Reconciliation Missionaries about the prevention of blood feud and observance of legal state”, which concerned the general situation in Albania on blood feuds. The Aliens Appeals Board had document no. 7 translated, in which Gjin Marku stated that the Committee had actively attempted mediation between the two named families, but so far unsuccessfully. Thus, and since the police had no possibility of protecting individuals involved in blood feuds, the Committee had advised the applicants to leave Albania until the tensions had diminished and a reconciliation was within reach.
On 22 December 2004 the Aliens Appeals Board rejected the application, stating that the grounds invoked by the applicants had already in substance been assessed in the previous decisions and that the new document (no. 7) did not alter the Board’s position.
On 13 January 2005, a fourth new application was submitted, which was rejected by the Aliens Appeals Board on the same day.
On 24 January 2005, a fifth new application was submitted, which was rejected by the Aliens Appeals Board on 10 February 2005.
On 9 May 2005 the applicants lodged their case with the Court.
On 11 May 2005, a sixth new application was submitted to the Aliens Appeals Board, which rejected it on 23 May 2005.
On 22 June 2005 the Court requested that the Swedish Government submit their views on the authenticity of the two documents (nos. 3 and 5) allegedly issued by the Albanian police stating that they would not be able to protect the first applicant upon return to Albania.
On 16 August 2005, on the basis of an investigation carried out during a meeting on 28 July 2005 at the police headquarters in Shkoder, approximately 100 kilometres north of Tirana, with the participation of a delegation from the Swedish Embassy in Rome and various Albanian police officials in high-ranking positions, the Government maintained that they had every reason to believe that the documents were forged.
Firstly, having conducted a thorough investigation into whether a blood feud dispute existed between the two named families in question, the police in Shkoder concluded that no such case was registered or known to the police, although normally disputes of this kind were known to the police. The Government added that in a totally different case, the Albanian police had actually been able to confirm the existence of a blood feud between two Albanian families, of which a family member had applied for asylum in Sweden.
Secondly, the alleged statements were totally incompatible with the official policy and guidelines applied by the police, according to which police certificates may only refer to purely factual circumstances.
Thirdly, the documents contained several obvious formal and other errors, when compared with authentic documents from the police archives, for example as to the letter-head and format of letters. The documents seemed to be typed on a traditional typewriter, whereas most Albanian authorities were computerised, notably when it came to official documents.
More specifically as to document no. 3, there was a Mr Poposhi in the police force in Tirana, but he did not hold the position of director. The document contained a number of errors and discrepancies, which indicated that it was false.
As regards document no 5, the police in Shkoder affirmed that Mr Dogjani had been Head of Police. He had left his post in January 2005. His former colleagues, who were well acquainted with his signature, stated that the document was an obvious forgery. They showed documents from the police archives which undoubtedly had been signed by Mr Dogjani. The signatures differed clearly. They also noted that the first name of Mr Dogjani was wrongly spelled in the document in question; Aslllan instead of Asllan.
On 31 October 2005 the Committee of Nationwide Reconciliation submitted a letter to the Court (no. 8) signed by the aforementioned Gjin Marku, which stated, among other things:
“The Committee of Nationwide Reconciliation has verified the documents, presented by [the first applicant’s father] to the Swedish authorities and confirms that the certificate released by the police authorities is fake. But the relatives of [the first applicant] were obliged to take false documents from the police authorities for the protection of [the first applicant’s] life, taking into consideration the very tense situation. The Albanian Police is not aware and informed about most of the conflicts for blood feud because denunciation to the police aggravates the conflict and might cause uncontrollable bloodshed at any instant ...”
On 6 January 2006, at the Government’s request, the Court adjourned the application following the enactment of an interim amendment to the Aliens Act, on the basis of which the applicants’ case would be tried anew.
Thus, the Migration Board decided on its own accord to examine whether the applicants could be granted residence permits under the temporary wording of Chapter 2, section 5 b of the Aliens Act. The applicants invoked essentially the same grounds as previously and claimed that the certificates and information provided by the Committee of Nationwide Reconciliation could not be disputed. They also pointed out that they had settled well in Sweden. They submitted various documents, including a copy of a fax of 1 August 2005 (no. 9) from the said Committee to the Swedish Embassy in Rome, in which Gjin Marku confirmed, among other things, that the Committee had a case file concerning the applicants.
On 27 March 2006 the Migration Board found against the applicants.
Three days later, on 30 March 2006 the applicants lodged yet another application with the Migration Board under the temporary legislation, arguing that the documents from the Committee of Nationwide Reconciliation and “the statement from the Swedish Embassy” had not been assessed together. It appeared that the applicants referred to the assessment of 15 April 2004 submitted by the Swedish Embassy in Rome to the Aliens Appeals Board. It also appeared that the applicants or their counsel believed that the assessment contained a statement from the Swedish Embassy “that the Committee of Nationwide Reconciliation was an objective, trustful and on absolutely objective grounds, a correct official organization to be respected and believed by the Swedish aliens authorities.”
In a decision of 29 May 2006 the Migration Board rejected the application. It noted among other things that the relevant documents had been assessed in previous decisions, thus the document from the Swedish Embassy had been included in the Aliens Appeals Board’s decision of 29 June 2004, and the documents from the Committee of Nationwide Reconciliation had been included respectively in the Aliens Appeals Board’s decision of 22 December 2004 and the Migration Board’s decision of 27 March 2006.
On 8 August 2006 the first applicant was detained by the police with a view to deportation. Maintaining, inter alia, that he had filed a complaint to the Court, he requested that the Migration Board stay the deportation order. His request was refused by the latter on 14 and 15 August 2006.
On 15 August 2006 the deportation order against the first applicant was implemented. Since the second and the third applicant did not turn up for a voluntary deportation they were reported as having absconded.
On 17 August 2006, the Court rejected the applicants’ request for an application of Rule 39 of the Rules of Court.
The applicants appealed against the Migration Board’s decision of 14 August 2006 to the Migration Court, before which they submitted an email of 17 August 2006 (no. 10) from Gjin Marku, of the Committee of Nationwide Reconciliation, stating that the first applicant was in extreme danger. He was hiding in the mountains in Northern Albania but risked his life every moment that passed. The Migration Board submitted its comments to the Migration Court and enclosed a statement of 27 July 2006 from the Swedish Embassy in Rome, although it concerned a different case. In the statement, the Embassy expressed the opinion that the legal value of certificates from Gjin Marku was questionable and that they could not be relied on as sole ground in matters concerning asylum applications.
On 18 August 2006 the Migration Court suspended the refusal-of-entry order as to the first applicant and the deportation order as to the second and third applicants.
An oral hearing was held on 19 October 2006. The applicants were not present, but were represented by their counsel. The Migration Court noted that both the first and the second applicant had signed the summons to attend the hearing. The summons signed by the first applicant had been handed over to the Migration Court on the day of the hearing, but disclosed no date of signature. The second applicant had signed on 18 August 2006. Counsel maintained that the aliens authorities had failed to take documents nos. 8, 9 and 10 into account. No information was provided as to the applicants’ whereabouts.
By judgment of 26 October 2006, finding that no new circumstances had been invoked and noting that it could not be excluded that the first applicant remained in Sweden, the Migration Court found against the applicants.
On 14 November 2006 the Migration Court of Appeal refused the applicants’ request for leave to appeal against the Migration Court’s judgment.
On 8 February 2007 the Court decided under Rule 54 § 2 of the Rules of Court to communicate the complaints under Articles 2 and 3 of the Convention and under Rule 41 to give the application priority.
By letter of 4 April 2007 the applicants’ counsel informed the Court that the first applicant had re-entered Sweden. He had managed to borrow approximately 3,250 euros (EUR) from cousins and friends and to obtain a visa to enter Italy, from where he had joined his wife and child, who were still living in hiding.
A new Aliens Act (SFS 2005:716), replacing the 1989 Aliens Act, entered into force on 31 March 2006. The Act established a new system for examining and determining applications for asylum and residence permits. While the Migration Board continued to carry out the initial examination, an appeal against the Board’s decision was determined by one of the three new Migration Courts. The Migration Court of Appeal was the court of final instance. It examined appeals against the decisions of the Migration Courts, provided leave to appeal was granted. Upon the entry into force of the new Act, the Aliens Appeals Board ceased to exist. The Migration Board acted as the alien’s opposing party in proceedings before the courts.
The provisions mainly applied in the present case were to be found in the 1989 Aliens Act, now repealed. In accordance with the Act, an alien staying in Sweden for more than three months had to, as a rule, have a residence permit (chapter 1, section 4). A residence permit could be issued, inter alia, to an alien who, for humanitarian reasons, was to be allowed to settle in Sweden (chapter 2, section 4). Serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the granting of a residence permit.
An alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to a residence permit in Sweden (chapter 3, section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself of the protection of that country. This applied irrespective of whether such persecution was at the hands of the authorities of the country or whether those authorities could not be expected to offer protection against persecution by private individuals (chapter 3, section 2). An “alien otherwise in need of protection” denoted, inter alia, a person who had left the country of his nationality because he had a well-founded fear of being sentenced to death or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 3, section 3, subsection 1). By making that a separate ground for granting a residence permit, the legislature had highlighted the importance of such considerations. The correspondence between national legislation and Article 3 of the Convention had been emphasised as a result.
In enforcing a decision on refusal of entry or expulsion, the risk of torture and other inhuman or degrading treatment or punishment was taken into account. In accordance with a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (chapter 8, section 1). In addition, he could not, in principle, be sent to a country where he risked persecution (chapter 8, section 2).
Until 15 November 2005 an alien who was to be refused entry or expelled in accordance with a decision that had gained legal force could be granted a residence permit if he filed a so-called “new application” with the Aliens Appeals Board based on circumstances which had not previously been examined in the case concerning refusal of entry or expulsion. A residence permit could then be granted if the alien was entitled to a residence permit under chapter 3, section 4, of the Act or if it would be contrary to the requirements of humanity to enforce the refusal-of-entry or expulsion decision (chapter 2, section 5 b, in its wording before 15 November 2005).
Amendments to chapter 2, section 5 b, of the 1989 Aliens Act entered into force on 15 November 2005, whereby a new legal remedy of a temporary nature was introduced. The new procedure for obtaining a residence permit replaced the rules relating to new applications for a residence permit laid down in chapter 2, section 5 b, in its previous wording. Furthermore, the amendments to the 1989 Act introduced additional legal grounds for granting a residence permit to aliens against whom a final expulsion order had been made. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children. The temporary provisions remained in force until the new Aliens Act entered into force on 31 March 2006. The Migration Board continued, however, to examine applications which it had received before that date but had not yet determined.
C. Relevant background material
Albania became a member of the Council of Europe on 13 July 1995 and ratified the European Convention on Human Rights on 2 October 1996.
The British Home Office, Immigration and Nationality Directorate, stated inter alia in its Operational Guidance Note, Albania, of 3 April 2007:
“3.6 Blood feuds
3.6.1 Some claimants will apply for asylum or make a human rights claim based on ill-treatment amounting to persecution as a result of a ‘blood feud’. The term blood feud can often be used in a very loose sense, which does not always refer to the strict code of honour and shame and related provisions in the Kanun and as such the reasons cited for involvement in a blood feud can include disputes with neighbours over land, accidental death caused by traffic accidents or fights, or resurfaced pre-communist disputes.
3.6.2 Treatment. Albania continued to experience high levels of violent crime during 2006 with many killings occurring as the result of individual or clan vigilante actions connected to traditional ‘blood feuds’ or to criminal gang conflicts. According to the interior ministry, at least five persons were killed during 2006 in blood feuds based on the medieval Code of Lek Dukagjini (the kanun). In 2006, the National Reconciliation Committee (NRC), a nongovernmental organisation (NGO) that worked on blood feud issues, estimated that there were as many as 78 deaths from feuds nationwide. Corruption also remained a major problem during the year.
3.6.3 Under the kanum, only males are acceptable targets in blood feuds; however, women and children were often killed or injured in attacks in 2006. According to the National Reconciliation Committee, approximately 860 families were effectively self-imprisoned during 2006 due to blood feuds. Property disputes accounted for four-fifths of formally declared blood feuds during 2006, with the remainder pertaining to issues of honour or violations of the home (e.g., theft, trespassing, etc.). The NRC estimated that there were several hundred additional blood feuds stemming from trafficking, which are typically not formally declared out of shame. Of the 738 families reported effectively self-imprisoned in 2005, 166 left the country, including 93 families that sought formal political asylum in other countries. The NRC claimed that fear of revenge prevented approximately 182 children from attending school in 2006, 86 of whom were permanently confined to their houses.
3.6.4 Police investigations into the 2004 murder of Emin Spahija, head of the NGO Peace Missionaries League that worked exclusively on blood feud issues was still on-going in 2006. A suspect was arrested but has not yet been formally charged.
3.6.5 In May 2005, parliament approved a law establishing a co-ordination council, chaired by the president, to develop a national strategy against blood feuds and co-ordinate activities of government agencies. However, the council was inactive during 2006. The court of serious crimes tried blood feud cases in 2006 and the law provides for 20 years to life imprisonment for killing in a blood feud.
3.6.6 Sufficiency of protection. In September 2005, the Ministry of Public Order was transferred to the authority of a new Ministry of the Interior. Local police units report to the Ministry of the Interior and are the main force responsible for internal security. The Albanian State Police (ASP) employed approximately 12,000 officers. As noted above, the law provides for 20 years to life imprisonment for killing linked to a blood feud. There is no evidence to indicate that individual Albanians fearing the actions of those seeking to carry out a blood feud cannot access protection from the Albanian police and pursue these through the legal mechanisms that have been set up to deal with blood feuds.
3.6.7 Internal relocation. The law provides freedom of movement within Albania and in 2006 the Government generally respected this right in practice. However, due to significant internal migration, many citizens no longer had local registration and status, leading to a loss of access to services such as education and medical care. Whilst there may be some difficulties accessing local services internal relocation to escape the localised threat of a blood feud will not generally be unduly harsh. Whether internal relocation would enable an individual to avoid a threat in an individual case will depend on the tenacity of those attempting to enforce the blood feud.


ITEMID: 001-67334
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BIKKIN AND BORTAYCHUK v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mrs Valentina Yevgenyevna Bortaychuk and Dmitriy Stepanovich Bikkin, are Russian nationals who were born in 1950 and 1956 respectively and live in the village of Lavrentiya in the Chukotka Region. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 December 2000 the first applicant, Mrs Bortaychuk, filed an action with the Chukotskiy District Court of the Chukotka Region against a State-run enterprise, her employer, claiming unpaid salary and damages. Several hearings were held in March and April 2002.
On 12 April 2002 the court allowed the applicant's claims in part.
On 21 November 2002 the Chukotka Regional Court quashed the judgment on the applicant's appeal.
On 19 March 2003 the Chukotskiy District Court found for the applicant in part. The applicant did not appeal and the judgment came into force.
On 23 May 1996 the second applicant, Mr Bikkin, an investigator, brought an action with the Chukotskiy District Court against the police, his employer, claiming his monthly salary, allegedly due to him for the period from November 1995 to May 1996, and damages in this respect.
On 5 October 1998 the court allowed the claims in part.
On 26 November 1998 the Chukotka Regional Court quashed the judgment on the applicant's appeal and remitted the case to the first instance.
On 11 February 2000, as a result of a new examination of the case, the district court allowed the applicant's claims in part.
On 30 March 2000 the regional court quashed the judgment on the applicant's appeal and remitted the case to the first instance.
On 27 March 2002 the district court found for the applicant in part. On an unspecified date this judgment was upheld by the appeal court.
On 7 April 1998 the applicant was dismissed. On 10 June 1998 he filed an action with the Chukotskiy District Court against the police claiming reinstatement in his post of investigator and damages. According to the applicant, the case file was lost when being sent from the Chukotka Regional Court, which considered the applicant's complaint, to the district court.
On 19 May 2000 the district court received the applicant's new action, which was identical to the first one.
On 19 December 2002 the district court found for the applicant and ordered his reinstatement.
On 20 February 2003 the regional court quashed the judgment on the defendant's appeal and remitted the case to the first instance.
On 2 June 2003 the case was transferred for examination to the Anadyr Town Court of the Chukotka Region.
As of 20 November 2003 the proceedings in the case were still pending.
Under the Code of Criminal Procedure of 1960 as well as the Code of Criminal Procedure of 2001 (Article 38), which came into force on 1 July 2002, the police investigator is responsible for the institution of criminal proceedings and investigation of crimes, and takes decisions during the investigation phase.