EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 36909/97

Franti Å¡ek Gaulieder

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

I. INTRODUCTION

(paras. 1-15) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-10) .................................................... 1

C. The present Report

(paras. 11-15) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-32) ....................................................... 4

A. The particular circumstances of the case

(paras. 16-29) .................................................. 4

B. Relevant domestic law

(paras. 30-32) .................................................. 5

III. OPINION OF THE COMMISSION

(paras. 33-56) ........................................................ 7

A. Complaints declared admissible

(para. 33) ...................................................... 7

B. Points at issue

(para. 34) ...................................................... 7

C. As regards Article 3 of Protocol No. 1

(paras. 35-45) .................................................. 7

CONCLUSION

(para. 46) ...................................................... 9

D. As regards Articles 4 § 1, 10, 11, and 14 of the Convention

(paras. 47-49) .................................................. 9

CONCLUSION

(para. 50) ..................................................... 10

E. As regards Article 13 of the Convention

(paras. 51-52) .................................................... 10

CONCLUSION

(para. 53) ....................................................... 10

F. Recapitulation

(paras. 54-56) .................................................... 10

PARTLY DISSENTING OPINION OF MR S. TRECHSEL JOINED BY

MM M. NOWICKI AND A. ARABADJIEV ..................................... 11

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ................. 12

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Slovak citizen, born in 1951 and resident in Galanta.  He was represented before the Commission by Mr J. Havl át, a lawyer practising in Bratislava .

3 . The application is directed against the Slovak Republic.  The respondent Government were represented by their Agent, Mr R. Fico.

4 . The case concerns the termination of the applicant’s office of a Member of Parliament.  The applicant invokes Article 3 of Protocol No. 1 and Articles 4 § 1, 10, 11, 13 and 14 of the Convention.

B. The proceedings

5 . The application was introduced on 16 June 1997 and registered on 17 July 1997.

6 . On 19 January 1998 the Commission decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 18 May 1998, after an extension of the time-limit fixed for this purpose. The applicant replied on 4 June 1998.

8 . On 19 October 1998 the Commission declared admissible the applicant's complaints under Article 3 of Protocol No. 1 and under Articles 4 § 1, 10, 11, 13 and 14 of the Convention.  It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 30 October 1998 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 21 December 1998, to which the applicant replied on 14 January 1999.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  For this purpose, the President of the Commission met with the parties in Bratislava on 5 February 1999.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI Č

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16 . The applicant stood as a candidate for election to the National Council of the Slovak Republic in the 1994 parliamentary election.  On 27 July 1994 he signed a contract with the Movement for A Democratic Slovakia (Hnutie za demokratické Slovensko) which had put him on its electoral list.  He also signed a letter of resignation from the National Council which was not dated.  In September 1994 the applicant was elected a member of the National Council for a four years' period.

17 . On 26 November 1996 the applicant informed the President of the National Council that he had withdrawn, as from 5 November 1996, from the parliamentary group of the Movement for A Democratic Slovakia and that he had not joined any other parliamentary party.  The applicant further stated that he had not resigned from his office and that he had sent no letter of resignation to the President of the National Council.

18 . On 28 November 1996 the Office of the National Council received a letter dated 26 November 1996 which stated that the applicant wished to resign from his office.

19 . On 3 December 1996 the President of the National Council informed the journalists that he had received a letter of resignation from the applicant. In a letter dated 3 December 1996 and delivered on 4 December 1996 the applicant informed the President of the National Council that he had not sent the letter of 26 November 1996 and that he would not resign from his office until its expiry.

20 . On 4 December 1996 the National Council adopted Resolution No. 482 in which it took note of the applicant's decision to resign.  As from this date, the applicant's office ceased to exist.  In the debate which preceded the vote the applicant informed the members of the National Council that he had neither written nor posted the letter of 26 November 1996.  The applicant further reiterated that it was not his intention to resign from his office.

21 . On 12 December 1996 the applicant lodged a petition with the Constitutional Court (Ústavný súd).  He alleged a violation of his constitutional rights in that his office had been terminated against his will.

22 . On 23 January 1997 the Constitutional Court declared admissible the applicant's complaint under Article 81 (1) of the Constitution (see "Relevant domestic law" below).

23 . On 23 July 1997 the Constitutional Court found that by adopting Resolution No. 482 of 4 December 1996 the National Council had violated the applicant's right under Article 81 (1) of the Constitution.  The Constitutional Court held that Members of Parliament were entitled to carry out their office and that they had the right to resign, provided that it was their genuine will, by means that were legally relevant.

24 . The Constitutional Court found that the signature in the letter of 26 November 1996 was genuine, but that the applicant had not dispatched the letter.  The Constitutional Court noted that after the delivery of the aforesaid letter the applicant had expressly denied, on four occasions, his alleged intention to resign.  The Constitutional Court therefore concluded that the letter of 26 November 1996 could not be considered as a legally relevant document justifying the termination of the applicant's office pursuant to Article 81 (1) of the Constitution.

25 . Finally, the Constitutional Court held that it lacked jurisdiction to quash Resolution No. 482 of 4 December 1996 and pointed out that it was up to the National Council to redress its unlawful action.

26 . On 30 September 1997 the National Council considered a draft resolution proposing that Resolution No. 482 of 4 December 1996 be quashed and the applicant's office be renewed.  Sixty-eight members  supported the draft resolution, forty-two members voted against it and thirty-three members abstained.  Since the draft resolution could only be adopted subject to its approval by at least seventy-four members, the applicant's office was not renewed.             

27 . Following the adoption of Resolution No. 482 of 4 December 1996 the Office of the National Council paid the applicant the equivalent of his five months' remuneration in accordance with Section 2 of Act No. 120/1993 of 21 April 1993.

28 . In September 1998 a parliamentary election was held in Slovakia. The applicant did not stand as a candidate.

29 . On 18 December 1998 the newly elected National Council adopted Resolution No. 1385 in which it took note of the Constitutional Court's finding of 23 July 1997 and expressed its regret that during the previous term the National Council had not taken any measures with a view to remedying the violation of the applicant's constitutional rights.  In the resolution the National Council also pointed out that after the termination of his office the applicant had received five months' remuneration to which he was entitled in accordance with the relevant law.

B. Relevant domestic law

30 . Article 73 of the Constitution provides as follows:

"1. The National Council of the Slovak Republic shall comprise 150 members elected              for a period of four years.

2. The members represent the citizens.  They shall exercise their office individually              in accordance with their conscience and convictions, and shall not be bound by any              instructions."

"1. Národná rada Slovenskej republiky má 150 poslancov, ktorí sú volení na štyri roky.

2. Poslanci sú zástupcovia občanov. Mandát vykonávajú osobne podľa svojho svedomia a presvedčenia a nie sú viazaní príkazmi. "

31 . Article 81 of the Constitution provides as follows:

"1. A member [of the National Council] may resign from his or her office.

2. The office of a member [of the National Council] shall cease to exist after his or her final conviction of a particularly serious wilful offence."

"1. Poslanec sa m ôže funkcie poslanca vzdať.

2. Mandát poslanca zaniká, ak poslanec bol právoplatne odsúdený za obzvlášť závažný úmyselný trestný čin. "

32 . Act No. 120/1993 of 21 April 1993 governs the remuneration of certain persons vested with powers under the Constitution.  Section 2 provides, inter alia , that a member of the National Council of the Slovak Republic has the right to receive remuneration during five months after his or her office ceases to exist.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

33 . The Commission has declared admissible the applicant's complaints that:

- he was unlawfully deprived of his right to sit as a member of the National Council of the Slovak Republic;

- he was held in servitude and prevented from holding opinions and imparting information and ideas as an independent Member of Parliament, that his freedom of association with others was not respected and that he was discriminated against in the enjoyment of his freedom of expression and freedom of association;

- he had no effective remedy at his disposal.

B. Points at issue

34 . The points at issue in the present case are:

- whether there has been a violation of Article 3 of Protocol No. 1;

- whether there has been a violation of Articles 4 § 1, 10 and 11 of the Convention as well as of Article 14 of the Convention in conjunction with Articles 10 and 11 of the Convention; and

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 3 of Protocol No. 1

35 . Article 3 of Protocol No. 1 provides as follows:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

36 . The applicant submits that prior to the termination of his office he expressly informed both the President and the members of the National Council of the Slovak Republic that he did not wish to resign.  In his view, there exist no particular circumstances justifying the termination of his office and the subsequent refusal to renew it.

37 . The Government concede, with reference to the Constitutional Court's finding of 23 July 1997, that the case raises an issue under Article 3 of Protocol No. 1.

38 . The Government further recall that in Resolution No. 1385 of 18 December 1998 the newly elected members of the National Council expressed their regret that in the course of the previous term the National Council had failed to take any steps with a view to ensuring compliance with the Constitutional Court's finding of 23 July 1997. They point out that the applicant received a five months' remuneration after his office had been terminated.  Finally, the Government maintain that at present the applicant can only obtain redress, should the Convention organs find a violation of Article 3 of Protocol No. 1 in his case, by means of an award of just satisfaction.

39 . The Commission first notes that the applicant's office, which was originally to expire in September 1998, was terminated by the National Council's Resolution No. 482 of 4 December 1996.  Thus the applicant was not able, despite his proclaimed will to do so, to exercise his office for more than twenty-one months.

40 . In these circumstances, the Commission considers that the applicant can still claim to be a victim within the meaning of former Article 25 § 1 of the Convention.  In the Commission's view, the fact that the applicant received five months' remuneration after the termination of his office cannot change this position since he would have been entitled to it in any event, along with the other members of the National Council, if he had exercised his office throughout the period for which he had been elected.

41 . As to the merits of this part of the application, the Commission recalls that Article 3 of Protocol No. 1 guarantees the individual's right to stand for election and, once elected, to sit as a Member of Parliament.  States enjoy a wide margin of appreciation as regards the conditions to which the exercise of these rights may be subjected, but it is for the Convention organs to determine in the last resort whether the requirements of the Convention have been complied with.  The Convention organs have to satisfy themselves that the rights in question are not curtailed to such an extent as to impair their very essence and deprive them of their effectiveness; that any restrictions on their exercise are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see, mutatis mutandis, No. 28858/95, Dec. 25.11.96, D.R. 87-A, pp. 130, 137).             

42 . In the present case the applicant’s office was terminated with reference to a letter in which he had allegedly expressed his wish to resign.  The applicant then sought redress before the Constitutional Court which found that his office had been terminated despite his genuine will, and there is no dispute between the parties as regards this conclusion. A subsequent attempt to provide redress to the applicant by means of reinstatement in his office remained unsuccessful.

43 . As a result, the applicant was not able to carry out his office during the period preceding the expiry of the four years’ term for which he had been elected. The applicant could not obtain redress despite the Constitutional Court’s finding that his rights under Article 81 (1) of the Constitution had been violated.

44 . In these circumstances, the Commission concludes that the applicant was prevented from effectively exercising his right to sit as a Member of Parliament throughout the period for which he had been elected. The respondent Government do not contend and the Commission has before it no information which would indicate that the termination of the applicant's office prior to its expiry pursued any legitimate aim.

45 . Accordingly, the applicant's right to sit as a Member of Parliament as guaranteed by Article 3 of Protocol No. 1 has not been respected.

CONCLUSION

46 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of Protocol No. 1.

D. As regards Articles 4 § 1, 10, 11, and 14 of the Convention

47 . The applicant further complains, with reference to the above facts, that he was held in servitude and that the termination of his office prevented him from holding opinions and imparting information and ideas, either alone or in association with other members of the National Council of the Slovak Republic. He alleges a violation of Articles 4 § 1, 10 and 11 of the Convention which read, so far as relevant, as follows:

Article 4

“1. No one shall be held in slavery or servitude.”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11

“1. Everyone has the right to freedom of ... association with others...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others...”

48 . The applicant further complains that as a result of the above facts he was discriminated against in the enjoyment of his rights under Articles 10 and 11 of the Convention. He alleges a violation of Article 14 of the Convention which provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

49 . The Commission notes that these complaints relate in substance to various aspects of the exercise by the applicant of his right to sit as a member of the National Council of the Slovak Republic which the Commission took into consideration when examining the complaint under Article 3 of Protocol No. 1.  Moreover, these complaints are based on the same facts as those which relate to the complaint under Article 3 of Protocol No. 1. In these circumstances, and having regard to the conclusion reached in paragraph 46 above, the Commission does not consider it necessary to examine separately these complaints.

CONCLUSION

50 . The Commission concludes, unanimously, that it is not necessary to examine separately the complaints under Articles 4 § 1, 10, 11, and 14 of the Convention.

E. As regards Article 13 of the Convention

51 . Finally, the applicant complains that he did not have at his disposal an effective remedy as regards the alleged violation of his rights guaranteed by the Convention. He alleges a violation of Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

52 . Having regard to the conclusions reached above (see paragraphs 46 and 50), the Commission does not consider it necessary to examine separately this complaint.

CONCLUSION

53 . The Commission concludes, by 26 votes to 3, that it is not necessary to examine separately the complaint under Article 13 of the Convention.

F. Recapitulation

54 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of Protocol No. 1 (paragraph 46).

55 . The Commission concludes, unanimously, that it is not necessary to examine separately the complaints under Articles 4 § 1, 10, 11, and 14 of the Convention (paragraph 50).

56 . The Commission concludes, by 26 votes to 3, that it is not necessary to examine separately the complaint under Article 13 of the Convention (paragraph 53).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF Mr S. TRECHSEL

JOINED BY MM M. NOWICKI AND A. ARABADJIEV

I regret that I cannot follow the majority in their finding that it is not necessary to examine the complaints of the applicant under Article 13 of the Convention. Quite to the contrary, I am of the opinion that there has been a violation of that Article.

It is true that the applicant had the possibility to apply to the Constitutional Court. His appeal was even successful, at least on paper. However, by the end of the day the judgement of the Constitutional Court proved to be powerless. In the terms of Article 13: The applicant had at his disposal a remedy and he could complain of the violation of his fundamental right. Yet, the remedy was not “effective”.

The Commission itself seems to have been of this opinion. I see a certain contradiction in the fact that, on the one hand, the applicant continued to be regarded as a “victim” within the meaning of former Article 25 of the Convention, while, on the other hand, it implies that the appeal to the Constitutional Court was an effective remedy. In para. 43 it says expressly: “The applicant could not obtain redress despite the Constitutional Court’s finding that his rights under Article 81 (1) of the Constitution had been violated”.

My opinion does not, of course, amount to passing a general judgement on the value of the constitutional appeal in Slovak law. Nor does it mean that the Constitutional Court ought generally to have the power to overrule any decision of Parliament, including legislation. Finally, it is not the task of the Convention organs to state in which way the High Contracting Parties should act in order to fulfil their obligations under the Convention.

The only thing I am saying is that, in the present case, the applicant did not enjoy the right to an effective remedy before a national authority as guaranteed by Article 13 of the Convention. I therefore find a violation of the Convention on this issue, too.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.