Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26138/95

I.L.

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 30 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-50) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 17-25). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law and practice

(paras. 26-50). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 51-93) . . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 51). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 52). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 6 para. 1 of the Convention

(paras. 53-88). . . . . . . . . . . . . . . . . . 11

a. As to the applicability of Article 6 of the

Convention

(paras. 53-76) . . . . . . . . . . . . . . . 11

b. As to compliance with Article 6 para. 1 of the

Convention

(paras. 77-87) . . . . . . . . . . . . . . . 14

CONCLUSION

(para. 88). . . . . . . . . . . . . . . . . . . . 16

D. As regards Article 13 of the Convention

(paras. 89-91). . . . . . . . . . . . . . . . . . 16

CONCLUSION

(para. 91). . . . . . . . . . . . . . . . . . . . 16

E. Recapitulation

(paras. 92-93). . . . . . . . . . . . . . . . . . 16

TABLE OF CONTENTS

Page

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 17

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 23

[ORIGINAL VERSION]

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 1953 and resident in

Povazská Bystrica.

3. The application is directed against the Slovak Republic. The

respondent Government were represented by their Agent, Mr. R. Fico.

4. The case concerns proceedings before administrative authorities

leading to the imposition of a fine under the Minor Offences Act. The

applicant invokes Articles 6 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 13 June 1994 and registered on

6 January 1995.

6. On 19 October 1995 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 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 the admissibility and

merits of the applicant's complaints under Articles 6, 13 and 14 of the

Convention. It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 8 January 1996.

The applicant replied on 20 January, 12 and 22 March, 21 June and on

5 August 1996.

8. On 15 October 1996 the case was transferred from the Second

Chamber to the Plenary Commission, by decision of the latter. On

21 October 1996 the Commission declared admissible the applicant's

complaints under Articles 6 and 13 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 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 18 December 1996, to which the

applicant replied on 14 January 1997.

10. On 21 October 1997 the Commission decided that there was no basis

on which to apply Article 29 of the Convention.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. 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

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 30 October 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to 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.

15. The Commission's decisions on the admissibility of the

application are annexed hereto.

16. 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

17. At the relevant period the applicant lived in a block of flats

in Dubnica nad Váhom which was owned by a co-operative. In June 1992

the applicant requested, pursuant to newly adopted legislation, that

the flat should be sold to him.

18. Subsequently his neighbours and other individuals disturbed the

applicant by noisy behaviour, mockery, offences and threats. On

several occasions the door and windows of his flat and his letter box

were damaged. The applicant considers that the purpose of these

interferences was to dissuade him from buying the flat.

19. On several occasions the applicant asked the police department

in Dubnica nad Váhom to investigate the disturbances and to prosecute

the responsible persons. The police informed the applicant that the

facts he had complained of could not be established. As they found no

evidence of an offence or a minor offence, the police closed the

investigation. On 15 April 1994 the police department in Dubnica nad

Váhom gave notice of these facts to the Dubnica nad Váhom Local Office

(Obvodny úrad) pursuant to Section 63 of the Minor Offences Act (see

"Relevant domestic law and practice" below).

20. On 11 May 1994 the Dubnica nad Váhom Local Office found that the

applicant had committed a minor offence (priestupok) pursuant to

Section 49 (1) (d) of the Minor Offences Act in that without

justification he had accused family B. of causing a nuisance. The

decision was based on the evidence submitted by the police department

in Dubnica nad Váhom and also on the facts which were established in

the course of the proceedings before the Local Office.

21. The applicant was fined 300 Slovak crowns and ordered to pay the

costs of the proceedings of 150 Slovak crowns. The decision of the

Local Office was signed by the head of its legal department.

22. On 28 July 1994 the Povazská Bystrica District Office (Okresny

úrad) dismissed the applicant's appeal and upheld the decision of the

Local Office. The applicant's case was examined by the legal

department of the District Office and the decision was signed by the

head of that department.

23. On 16 August 1994 the applicant brought a complaint before the

Constitutional Court (Ústavny súd). In his submissions of

5 October 1994 he alleged, inter alia, a violation of Article 6 of the

Convention in that there had been no fair and public hearing in his

case, and that the administrative authorities dealing with the case

lacked impartiality.

24. On 24 November 1994 the Constitutional Court dismissed the

applicant's constitutional complaint as being manifestly ill-founded.

The Constitutional Court held, inter alia:

(Translation)

"A minor offence is characterised, in general, by a wrongful

breach of law or legal obligations in different spheres of public

administration which represents a minor danger for the society.

Because of its character, a minor offence is not subject to

examination by a court... In accordance with the Minor Offences

Act, the examination of minor offences falls within the

competence of administrative authorities. Pursuant to Section 83

of the Minor Offences Act, in conjunction with Section 244 et

seq. of the Code of Civil Procedure, the lawfulness of

administrative organs' decisions on minor offences can be

reviewed by courts only in cases where a fine exceeding

2,000 Slovak crowns has been imposed, the exercise of a certain

activity has been prohibited for a period exceeding six months

or an object of a value exceeding 2,000 Slovak crowns has been

confiscated. The aforesaid provision of the special act

governing minor offences is fully binding also on the

Constitutional Court of the Slovak Republic."

(Original)

"Priestupok je vo vseobecnosti charakterizovany ako zavinené

porusenie práva, resp. právnych povinností na jednotlivych

úsekoch státnej správy s mensou spolocenskou nebezbecnostou.

Tento charakter priestupku ho vylucuje z uplatnovania

zodpovednosti pred súdom... Podla zákona o priestupkoch

prejednávanie priestupkov patrí do pôsobnosti orgánov státnej

správy. Súdy preskúmavajú podla ustanovenia § 83 zákona o

priestupkoch v spojitosti s ustanoveniami § 244 a nasledujúcimi

Obcianskeho súdneho poriadku zákonnost rozhodnutia o priestupku

iba v prípade, ak bola ulozená pokuta vyssia ako 2 000 Sk, alebo

zákaz cinnosti na cas dlhsí ako sest mesiacov, alebo prepadnutie

alebo zhabanie veci, ktorej hodnota presahuje 2 000 Sk. Citované

ustanovenie osobitného zákona o priestupkoch platí v celom

rozsahu aj pre Ústavny súd SR."

25. On 2 July 1997 the Constitutional Court rejected the applicant's

request for review of its decision of 24 November 1994.

B. Relevant domestic law and practice

Constitutional provisions

26. Article 46 para. 2 of the Constitution guarantees to everybody

who claims to have been denied his or her rights through a decision

made by a public authority the right to turn to a court of law and have

the legality of the decision reviewed, unless otherwise provided by

law. The review of decisions in matters of fundamental rights and

freedoms may not be excluded from the jurisdiction of courts of law.

27. Article 121 of the Constitution entitles the Government to grant

a pardon in matters concerning minor offences. Such a pardon was

granted in 1990 and 1992.

28. Pursuant to Article 127 of the Constitution, the Constitutional

Court decides on complaints about final decisions made by, inter alia,

local government authorities and local self-governing bodies in cases

concerning violations of the fundamental rights and freedoms of

citizens, unless the protection of such rights falls under the

jurisdiction of another court.

Minor Offences Act

29. The applicant was fined for a minor offence against civic

propriety pursuant to the Minor Offences Act (Zákon o priestupkoch) of

28 August 1990 as in force at the relevant period.

30. Section 1 of the Minor Offences Act defines its purpose as

follows:

(Translation)

"Administrative authorities of the Slovak Republic and municipal

organs shall encourage the citizens to respect legal rules and

the rights of other citizens. They shall ensure, in particular,

that citizens do not impede the conduct of the administration ...

and contravene public order and civic propriety."

(Original)

"Orgány státnej správy Slovenskej republiky a obce vedú obcanov

k tomu, aby dodrziavali zákony a ostatné právne predpisy a

respektovali práva spoluobcanov; dbajú najmä o to, aby obcania

nestazovali plnenie úloh státnej správy ... a nenarúsali verejny

poriadok a obcianske spolunazívanie."

31. Section 2 (1) defines a minor offence under the Minor Offences

Act as follows:

(Translation)

"A minor offence is a wrongful act which interferes with or

causes danger to the public interest and is expressly classified

as a minor offence in this Act or another law, unless such act

represents a separate administrative offence punishable under

special legal rules or a criminal offence."

(Original)

"Priestupkom je zavinené konanie, ktoré porusuje alebo ohrozuje

záujem spolocnosti a je za priestupok vyslovne oznacené v tomto

alebo inom zákone, ak nejde o iny správny delikt postihnutelny

podla osobitnych právnych predpisov, alebo o trestny cin."

32. Section 11 of the Minor Offences Act entitles the competent

authorities to impose "sanctions" (sankcie) on the perpetrators of

minor offences. It reads as follows:

(Translation)

"1. The following sanctions may be imposed for a minor offence:

a) reprimand,

b) fine,

c) prohibition to exercise a certain activity,

d) confiscation of an object.

2. A sanction can be imposed either separately or in combination

with another sanction; a reprimand cannot be combined with a

fine.

3. It is permissible to decide not to impose a sanction if the

mere fact that the minor offence was examined is sufficient to

reform its perpetrator."

(Original)

"1. Za priestupok mozno ulozit tieto sankcie:

a) pokarhanie,

b) pokutu,

c) zákaz cinnosti,

d) prepadnutie veci.

2. Sankciu mozno ulozit samostatne alebo s inou sankciou;

pokarhanie nemozno ulozit spolu s pokutou.

3. Od ulozenia sankcie mozno v rozhodnutí o priestupku upustit,

ak k náprave páchatela postací samotné prejednanie priestupku."

33. Section 12 (1) of the Minor Offences Act provides:

(Translation)

"When determining the type and amount of the sanction, the

seriousness of the minor offence and, in particular, the way and

the circumstances in which it was committed, its consequences,

the degree of guilt, the motive and the person of the perpetrator

including whether or not he or she has already been punished for

the same act in ... disciplinary proceedings should be taken into

account."

(Original)

"Pri urcení druhu sankcie a jej vymery sa prihliadne na závaznost

priestupku, najmä na spôsob jeho spáchania a na jeho následky,

na okolnosti, za ktorych bol spáchany, na mieru zavinenia, na

pohnútky a na osobu páchatela, ako aj na to, ci a akym spôsobom

bol za ten isty skutok postihnuty v ... disciplinárnom konaní."

34. Section 49 of the Act governs minor offences against civic

propriety. Pursuant to Section 49 (1) (d) a minor offence is committed

by a person who deliberately offends against civic propriety by threat

of bodily harm, by causing minor bodily injury, by unjustifiedly

accusing another person of a minor offence, by annoyances or other rude

behaviour. According to Section 49 (2) such a minor offence is

punishable with a maximum fine of 3,000 Slovak crowns.

35. Pursuant to Section 51 the proceedings concerning minor offences

are governed, unless otherwise provided, by the Administrative

Proceedings Act (Zákon o správnom konaní).

36. Section 52 provides that the following administrative authorities

are entitled to examine minor offences:

a) local offices,

b) police authorities if the minor offence was committed in breach of

the generally binding legal rules relating to the security of road

traffic,

c) other organs of State administration if a special law so provides.

37. Pursuant to Section 58 (b), cases involving minor offences

against civic propriety are examined, if they are directed against the

security of persons, by the police authorities which are subordinated

to the Ministry of the Interior.

38. Section 59 (1) provides that minor offences are to be examined

either on the basis of investigation carried out by the competent

police authority or upon a notification submitted by an individual,

organisation or authority.

39. Under Section 63 (1) the police authority shall submit to the

competent administrative organ a report on the outcome of its

examination of a case. Such a report shall comprise, inter alia, a

description of the relevant facts and shall specify which minor offence

they are alleged to constitute.

40. Section 73 provides:

(Translation)

"1. A citizen is accused of a minor offence as soon as the

administrative authority has taken the first procedural step

against him or her. Such a person shall be considered innocent

until his or her guilt has been established by a final decision.

2. A person accused of a minor offence has the right to comment

on all facts that are imputed to him or her as well as on the

evidence related to these facts, to present facts and evidence

in his or her defence, make submissions and have recourse to

remedies. He or she cannot be forced to make statements or to

plead guilty."

(Original)

"1. Obcan je obvineny z priestupku, len co správny orgán

vykonal voci nemu prvy procesny úkon. Na takého obcana sa hladí

ako na nevinného, kym jeho vina nebola vyslovená právoplatnym

rozhodnutím.

2. Obvineny z priestupku má právo vyjadrit sa ku vsetkym

skutocnostiam, ktoré sa mu kladú za vinu a k dôkazom o nich,

uplatnovat skutocnosti a dôkazy na svoju obhajobu, podávat návrhy

a opravné prostriedky. K vypovedi ani k priznaniu ho nemozno

donucovat."

41. Section 77, so far as relevant, provides:

(Translation)

"The operative part of a decision by which an accused of a minor

offence is found guilty shall comprise also the description of

the act including the place and time when the minor offence was

committed, the finding of guilt, the type and amount of the

sanction or, as the case may be, the decision not to impose a

sanction (Section 11 para. 3)..."

(Original)

"Vyrok rozhodnutia o priestupku, ktorym je obvineny z priestupku

uznany vinnym, musí obsahovat tiez popis skutku s oznacením

miesta a casu spáchania priestupku, vyslovenie viny, druh a vysku

sankcie, prípadne rozhodnutie o upustení od ulozenia sankcie

(§ 11 ods. 3)..."

42. Pursuant to Section 83 (1) of the Minor Offences Act, decisions

on minor offences by which a fine exceeding 2,000 Slovak crowns was

imposed, the exercise of a certain activity was prohibited for a period

exceeding six months or an object of a value exceeding 2,000 Slovak

crowns was confiscated can be reviewed by the courts. In such cases

the provisions of Section 244 et seq. of the Code of Civil Procedure

on administrative judiciary are applied.

Local State Administration Act

43. Section 1 (1) of Act No. 472/1990 on the Organisation of Local

State Administration (Zákon o organizácii miestnej státnej správy), as

amended, empowers District Offices and Local Offices to carry out local

State administration falling within the competence of the Slovak

Republic. The exercise of local administration by the aforesaid

authorities shall be managed and controlled by the Government.

44. Pursuant to Section 6 (1), the head of the Local Office shall be

appointed and revoked by the head of the District Office.

45. In accordance with Section 8 (1), the head of the District Office

shall be appointed by the Government upon the proposal of the Ministry

of the Interior.

46. The officers of Local and District Offices are subordinated to

the heads of these offices and their contract of employment is

governed, as in the case of other salaried employees, by the provisions

of the Labour Code.

Code of Civil Procedure

47. Pursuant to Section 135 (1) of the Code of Civil Procedure,

courts are bound, inter alia, by the decisions of the competent

authorities that a criminal offence, a minor offence or another

administrative offence punishable under special rules has been

committed.

Criminal Code

48. Section 3 (1) of the Criminal Code defines a criminal offence as

an act which is dangerous to society and the characteristics of which

are laid down in the Criminal Code. However, pursuant to Section 3 (2)

of the Criminal Code, an act whose dangerousness is negligible is not

a criminal offence even if it has the characteristics of the latter.

49. Pursuant to Section 3 (4) of the Criminal Code, the degree of

dangerousness of an act is determined, in particular, by the importance

of the protected interest which was affected by that act, by the

circumstances and the way in which the act was committed and its

consequences, by the person of its perpetrator, the degree of his or

her guilt and by his or her motive.

50. The Criminal Code refers to repressive measures for a criminal

offence as "penalties" (tresty).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

51. The Commission has declared admissible the applicant's complaints

that his right to a fair hearing before an independent and impartial

tribunal established by law was violated in the proceedings before the

Dubnica nad Váhom Local Office and the Povazská Bystrica District

Office and that he had no effective remedy before a national authority

in this respect.

B. Points at issue

52. The issues to be determined are the following:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention, and

- whether there has been a violation of Article 13 of (Art. 13) the

Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

a. As to the applicability of Article 6 (Art. 6) of the

Convention

53. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

54. The applicant alleges, in substance, that Article 6 (Art. 6) of

the Convention is applicable to his case.

55. The Government submit that the minor offence for which the

applicant was fined has never fallen under criminal law in the Slovak

legal system and that it cannot fall within the scope of the general

criminal law as it lacks a serious character.

56. The Government contend, with reference to Section 1 of the Minor

Offences Act, that the purpose of the latter is to prevent wrongful

acts of an administrative nature in the exercise of the public

administration and in relations between citizens, and that it does not

encourage punishment. They therefore consider that the minor offence

in question is not criminal in nature.

57. Finally, the Government consider that the nature and degree of

severity of the penalty incurred by the applicant do not warrant

classifying the minor offence at issue as criminal, either. They point

out, in particular, that the maximum fine which can be imposed for the

minor offence committed by the applicant amounts to 3,000 Slovak

crowns, i.e. half of the then average monthly salary, that the

imposition of a sanction under the Minor Offences Act is within the

discretionary power of the administrative authority concerned, that

sanctions for minor offences cannot be converted into a prison sentence

and that they are not entered on a person's criminal record.

58. The Commission recalls that in order to determine whether an

offence qualifies as "criminal" for the purposes of the Convention, the

first matter to be ascertained is whether or not the text defining the

offence belongs, in the legal system of the respondent State, to the

criminal law; next, the nature of the offence and, finally, the nature

and degree of severity of the penalty that the person concerned risked

incurring must be examined, having regard to the object and purpose of

Article 6 (Art. 6), to the ordinary meaning of the terms of that

Article and to the laws of the Contracting States (see Eur. Court HR,

Garyfallou AEBE v. Greece judgment of 24 September 1997, to be

published in Reports of Judgments and Decisions 1997, para. 32, with

further reference).

59. As to the first criterion, the Commission notes that in

Section 2 (1) of the Minor Offences Act a distinction is expressly

drawn between "minor offences" under the aforesaid Act, "other

administrative offences" punishable under special legal rules and

"criminal offences" which are punishable under criminal law.

60. The Minor Offences Act refers to fines or other repressive

measures for minor offences as "sanctions" (sankcie) whereas the

Criminal Code classifies repressive measures for criminal offences as

"penalties" (tresty).

61. Furthermore, the treatment of minor offences is governed by the

Administrative Proceedings Act and, in cases where judicial review is

provided for, by the relevant provisions of the Code of Civil Procedure

governing the administrative judiciary. Proceedings relating to minor

offences are, thus, distinct from criminal proceedings which are

governed by the Code of Criminal Procedure. In the Commission's view,

the above facts indicate that Slovak law does not formally classify the

minor offence for which the applicant was fined as criminal.

62. However, the significance of the approach taken in domestic law

is only relative. The remaining two criteria, namely the nature of the

offence in question and the nature and degree of severity of the

penalty incurred by the person concerned, are factors of greater

importance (see Eur. Court HR, Öztürk v. Germany judgment of

21 February 1984, Series A no. 73, p. 19, para. 52).

63. In this respect, the Commission recalls that the aforesaid two

criteria are alternative and not cumulative ones: for Article 6

(Art. 6) to apply by virtue of the words "criminal charge", it suffices

that the offence in question should by its nature be "criminal" from

the point of view of the Convention, or should have made the person

concerned liable to a sanction which, in its nature and degree of

severity, belongs in general to the "criminal" sphere. This does not

exclude that a cumulative approach may be adopted where the separate

analysis of each criterion does not make it possible to reach a clear

conclusion as to the existence of a "criminal charge" (see Eur. Court

HR, the Garyfallou AEBE v. Greece judgment cited above, para. 33, with

further references).

64. As regards the nature of the offence in question, the Commission

recalls that the applicant was fined for a minor offence against civic

propriety under Section 49 (1) (d) of the Minor Offences Act on the

ground that he had unjustifiedly accused his neighbours of disturbing

him.

65. Section 2 (1) of the Minor Offences Act defines a minor offence

as a "wrongful act which interferes with or causes danger to the public

interest and is expressly classified as a minor offence". Thus, the

rule of law infringed by the applicant is directed not against a given

group possessing a special status, but its provisions potentially

affect the whole population.

66. The aim of the Minor Offences Act, as defined in Section 1, is

to "encourage the citizens to respect legal rules and the rights of

other citizens" and to "ensure, in particular, that citizens do not ...

contravene public order and civic propriety".

67. In order to ensure this aim, administrative authorities are

entitled, under Section 11 (1) of the Minor Offences Act, to impose a

reprimand or a fine, to prohibit the exercise of a certain activity or

to confiscate an object from the perpetrators of minor offences. The

Commission is of the opinion that the aforesaid sanctions are not only

deterrent but also, by their very nature and the effect they are liable

to have on the persons affected by them, punitive. In the Commission's

view, the inherently punitive aspect of these sanctions can be deduced,

a contrario, from para. 3 of Section 11 under which the administrative

authorities may decide not to impose a sanction if the mere fact that

the minor offence was examined is sufficient to reform its perpetrator.

68. In addition, the Minor Offences Act contains several provisions

which indicate that the minor offences it governs are of a criminal

nature. In particular, Section 73 provides for a certain number of

procedural guarantees which are similar to those which are usually

granted to persons accused of a criminal offence. Thus an individual

is considered as being accused of a minor offence as soon as the

administrative authority undertakes the first procedural step against

him or her and is considered innocent until his or her guilt has been

established by a final decision; such a person has the right to comment

on all facts that are imputed to him or her as well as on the evidence

related to these facts, to present facts and evidence in his or her

defence, make submissions, have recourse to remedies and cannot be

forced to make statements or to plead guilty.

69. Furthermore, under Section 77 of the Minor Offences Act, the

operative part of a decision by which an accused of a minor offence is

found guilty comprises, inter alia, the finding of guilt and the type

and amount of the sanction.

70. In determining the type and amount of the sanction the

administrative authorities consider, under Section 12 (1) of the Minor

Offences Act, the seriousness of the minor offence and, in particular,

the way and the circumstances in which it was committed, its

consequences, the degree of guilt, the motive and the person of the

perpetrator, including whether or not he or she has already been

punished for the same act in other proceedings. The Commission recalls

that similar criteria are set out in Section 3 (4) of the Criminal Code

for the purpose of determining the degree of dangerousness of acts

which are capable of constituting a criminal offence.

71. The Commission further considers that the fact that

Section 49 (1) (d) of the Minor Offences Act under which the applicant

was fined classifies as minor offences against civic propriety "a

threat of bodily harm, causing minor bodily injury or rude behaviour"

also indicates the nature of the offence in question.

72. Under Section 135 (1) of the Code of Civil Procedure civil courts

are bound, as in the case of offences under criminal law, by the

decisions of administrative authorities that a minor offence was

committed regardless of whether or not such a decision was reviewable

by a court.

73. Finally, the Commission recalls that pursuant to Article 121 of

the Constitution, the Government is entitled to grant a pardon in

matters relating to minor offences.

74. The Commission is of the opinion that the general character of

the rule of law infringed by the applicant, the purpose of the penalty

which is both deterrent and punitive, and also the above mentioned

specific features of the legislation governing minor offences and the

proceedings relating thereto suffice to show that the offence in

question was, in terms of Article 6 (Art. 6) of the Convention,

criminal in nature. As regards the respondent Government's argument

that the minor offence in question lacked a serious character, the

Commission recalls that it would be contrary to the object and purpose

of Article 6 (Art. 6) if the States were allowed to remove from the

scope of this Article a whole category of offences merely on the ground

of regarding them as petty (see, mutatis mutandis, Eur. Court HR, the

Öztürk v. Germany judgment cited above, p. 20, para. 53).

75. In view of its above finding as to the criminal nature of the

minor offence in question, the Commission does not consider it

necessary to analyse also the seriousness of the sanction at stake.

76. In conclusion, the Commission finds that the proceedings in

question involved the determination of a "criminal charge".

Accordingly, Article 6 (Art. 6) of the Convention is applicable in the

present case.

b. As to compliance with Article 6 para. 1 (Art. 6-1) of the

Convention

77. The applicant submits that his right to a fair and public hearing

before an independent and impartial tribunal has not been respected.

78. The Government consider that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable and make no comments on the question

whether or not its guarantees were respected in the proceedings under

consideration.

79. The Commission recalls that, as regards the guarantees provided

for in Article 6 para. 1 (Art. 6-1) of the Convention, conferring the

prosecution and punishment of minor offences on administrative

authorities is not inconsistent with the Convention provided that the

person concerned is enabled to take any decision thus made against him

or her before a tribunal that does offer the guarantees of Article 6

(Art. 6) (see Eur. Court HR, the Öztürk v. Germany judgment cited

above, pp. 21 and 22, para. 56, with further reference).

80. The Commission further recalls that a body exercising judicial

functions meets the requirements of a "tribunal" only if, inter alia,

it is independent of the executive. In determining whether a body can

be regarded as "independent", account must be taken of the manner of

appointment of its members, their terms of office, the existence of

guarantees against outside pressures and the question as to whether

there is the appearance of independence. Security against the removal

of members of the tribunal by the executive during their term of office

is a necessary corollary of their independence (see Eur. Court HR, Le

Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981,

Series A no. 43, p. 24, para. 55; Bryan v. the United Kingdom judgment

of 22 November 1995, Series A no. 335-A, p. 15, para. 37, with further

reference).

81. The Commission notes that the applicant's case was first examined

by the Dubnica nad Váhom police department. In fact, Section 58 (b)

entitles police authorities to examine cases involving minor offences

against civic propriety directed against the security of persons.

82. The police department concluded that the facts of which the

applicant had accused his neighbours could not be established and

submitted a report on the applicant's case to the Dubnica nad Váhom

Local Office. Section 63 (1) of the Minor Offences Act provides that

such a report shall specify which minor offence the facts of a

particular case are alleged to constitute.

83. The Dubnica nad Váhom Local Office examined the applicant's case

and established that the applicant had committed a minor offence

against civic propriety pursuant to Section 49 (1) (d) of the Minor

Offences Act. The Local Office's decision of 11 May 1994 was signed

by the head of the latter's legal department. The applicant's appeal

was dismissed by the legal department of the Povazská Bystrica District

Office and the relevant decision was signed by the head of that

department.

84. Thus, the proceedings against the applicant were initiated by the

police which is an authority subordinated to the Ministry of the

Interior. The applicant's case was subsequently examined by the

Dubnica nad Váhom Local Office and the Povazská Bystrica District

Office, i.e. administrative authorities responsible for State

administration and furtherance of the Government's policies. The

respondent Government do not suggest that the aforesaid authorities

acted in the applicant's case as "tribunals" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

85. The Commission notes that the head of the Local Office is

appointed by the head of the competent District Office and the latter

by the Government upon the proposal of the Ministry of the Interior.

The applicant's case was dealt with by the legal departments of both

the Local Office and the District Office, i.e. salaried staff

subordinated to the heads of those authorities. Slovak law does not

provide for a specific term of office of the employees of such

authorities and their contract of employment is governed, as in the

case of other employees, by the Labour Code.

86. In these circumstances the Commission considers that the officers

deciding on the applicant's case lacked the requisite appearance of

independence from the executive. Accordingly, the proceedings before

the Dubnica nad Váhom Local Office and the Povazská Bystrica District

Office did not comply with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

87. Since under Slovak law the decisions of the aforesaid authorities

could not be subject to subsequent control by a judicial body that has

full jurisdiction and does provide the guarantees of Article 6 para. 1

(Art. 6-1), and the Constitutional Court was not able to review the

applicant's case at all, the Commission finds that the applicant's

right to a fair hearing before an independent and impartial tribunal

established by law has not been respected.

CONCLUSION

88. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

D. As regards Article 13 (Art. 13) of the Convention

89. The applicant further complains that he had no effective domestic

remedy in respect of his complaint under Article 6 (Art. 6) of the

Convention. He alleges a violation of Article 13 (Art. 13) of the

Convention which provides 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."

90. The Commission refers to the constant case-law of the Convention

organs according to which in cases of the present kind Article 6

(Art. 6) constitutes the lex specialis in relation to Article 13

(Art. 13) whose requirements are less strict and are, accordingly,

absorbed by those of Article 6 (Art. 6) (see Eur. Court HR, Kamasinski

v. Austria judgment of 19 December 1989, Series A no. 168, pp. 45-46,

para. 110). It follows that a separate examination of the facts of the

case under Article 13 (Art. 13) is not called for.

CONCLUSION

91. The Commission concludes, unanimously, that the application does

not raise a separate issue under Article 13 (Art. 13) of the

Convention.

E. Recapitulation

92. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 88).

93. The Commission concludes, unanimously, that no separate issue

arises under Article 13 (Art. 13) of the Convention (para. 91).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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LAUKO v. SLOVAKIA

LAUKO v. SLOVAKIA

LEXI