KADUBEC v. THE SLOVAK REPUBLIC
Doc ref: 27061/95 • ECHR ID: 001-45928
Document date: October 30, 1997
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 27061/95
Jaroslav Kadubec
against
the Slovak Republic
REPORT OF THE COMMISSION
(adopted on 30 October 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-14). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-9). . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 10-14). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-45) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 15-20). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law and practice
(paras. 21-45). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 46-93) . . . . . . . . . . . . . . . . . . . . 10
A. Complaints declared admissible
(para. 46). . . . . . . . . . . . . . . . . . . . 10
B. Points at issue
(para. 47). . . . . . . . . . . . . . . . . . . . 10
C. As regards Article 6 para. 1 of the Convention
(paras. 48-84). . . . . . . . . . . . . . . . . . 10
a. As to the applicability of Article 6 of the
Convention
(paras. 48-71) . . . . . . . . . . . . . . . 10
b. As to compliance with Article 6 para. 1 of the
Convention
(paras. 72-83) . . . . . . . . . . . . . . . 13
CONCLUSION
(para. 84). . . . . . . . . . . . . . . . . . . . 15
D. As regards Article 6 para. 3 (c) of the Convention
(paras. 85-87). . . . . . . . . . . . . . . . . . 15
CONCLUSION
(para. 87). . . . . . . . . . . . . . . . . . . . 15
TABLE OF CONTENTS
Page
E. As regards Article 13 of the Convention
(paras. 88-90). . . . . . . . . . . . . . . . . . 15
CONCLUSION
(para. 90). . . . . . . . . . . . . . . . . . . . 16
F. Recapitulation
(paras. 91-93). . . . . . . . . . . . . . . . . . 16
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 17
[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 1943 and resident 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 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 14 October 1994 and registered
on 20 April 1995. 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 its admissibility
and merits. The Government's observations were submitted on
8 January 1996. The applicant replied on 14 March 1996. On
23 January 1996 the Commission granted the applicant legal aid for the
representation of his case.
6. 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 the application admissible.
7. 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 18 January 1997.
8. On 21 October 1997 the Commission decided that there was no basis
on which to apply Article 29 of the Convention.
9. 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
10. 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
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
11. 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.
12. 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.
13. The Commission's decision on the admissibility of the application
is annexed hereto.
14. 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
15. On 25 August 1993 the police intervened in an incident in a spa
house in Piestany and whilst doing so, they had to restrain the
applicant and to handcuff him. They gave notice of this incident to
the Piestany Local Office (Obvodny úrad).
16. On 30 November 1993 an officer of the Piestany Local Office's
legal department found that the applicant had committed a minor offence
(priestupok) against public order pursuant to Section 47 (1) (a) and
(c) of the Minor Offences Act (see "Relevant domestic law and practice"
below) in that he had disturbed boarders by his noisy behaviour and
refused to obey police officers. A fine of 1,000 Slovak crowns was
imposed on the applicant pursuant to Section 47 (2) of the Minor
Offences Act, and he was ordered to pay the costs of the proceedings
of 150 Slovak crowns.
17. The applicant considered that the decision to impose a fine on
him was unlawful and lodged an appeal with the Trnava District Office
(Okresny úrad). He alleged that his case had not been examined
properly and that he could not defend himself as the decision at issue
had been taken in his absence. He also proposed to hear a witness.
18. On 21 January 1994 the Trnava District Office dismissed the
applicant's appeal. Its decision was signed by the head of the legal
department and stated, inter alia, that in proceedings relating to
minor offences decisions are delivered by single staff members of the
competent authority.
19. On 18 March 1994 the applicant lodged a complaint with the
Constitutional Court (Ústavny súd). On 30 March 1994 the applicant
submitted proof of his indigence to the Constitutional Court and
requested that a lawyer be appointed ex officio. On 6 April 1994 the
Constitutional Court informed the applicant that the Constitutional
Court Act does not provide for the appointment of lawyers.
20. The applicant sought redress with the President of the Bar
Association but was unable, within the time-limit set by the
Constitutional Court, to find a lawyer who would be willing to
represent him. On 25 May 1994 the Constitutional Court rejected the
complaint for the applicant's failure to instruct a lawyer to represent
him in the proceedings as required by Section 22 of the Constitutional
Court Act.
B. Relevant domestic law and practice
Constitutional provisions
21. 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.
22. 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.
23. 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
24. The applicant was fined for a minor offence against public order
pursuant to the Minor Offences Act (Zákon o priestupkoch) of
28 August 1990 as in force at the relevant period.
25. 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."
26. 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."
27. 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."
28. 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."
29. Section 47 governs minor offences against public order. Pursuant
to Section 47 (1) (a) and (c), a person who disobeys a public officer
acting in his official capacity or offends public decency commits a
minor offence against public order. According to Section 47 (2), such
a minor offence is punishable with a maximum fine of 1,000 Slovak
crowns.
30. Pursuant to Section 51 the proceedings concerning minor offences
are governed, unless otherwise provided, by the Administrative
Proceedings Act.
31. Section 52 provides that the following administrative authorities
are entitled to examine minor offences:
a) local offices (obvodné úrady),
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.
32. Cases involving minor offences against public order are examined,
pursuant to Section 58 (b) of the Minor Offences Act, by the police
authorities which are subordinated to the Ministry of the Interior.
33. Under Section 63 (1) the police authority submits 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.
34. 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."
35. 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)..."
36. 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
37. 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.
38. Pursuant to Section 6 (1), the head of the Local Office shall be
appointed and revoked by the head of the District Office.
39. 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.
40. 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
41. 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
42. 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.
43. Pursuant to Section 3 (4), 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.
44. Section 202 of the Criminal Code provides that a person who, in
public, commits a gross indecency or causes a grave disturbance, in
particular, by attacking another person, profaning a cultural or
historical monument or a grave, or who disturbs in a serious manner a
meeting or a ceremony shall be punished by a maximum prison sentence
of two years or by a fine.
45. The Criminal Code refers to repressive measures for a criminal
offence as "penalties" (tresty).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
46. The Commission has declared admissible the applicant's complaints
that his right to a fair hearing before an independent and impartial
tribunal was violated in the proceedings leading to the imposition of
a fine on him, that he was deprived of the right to defend himself
through legal assistance in these proceedings and that he had no
effective remedy before a national authority in this respect.
B. Points at issue
47. 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,
- whether there has been a violation of Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention, and
- whether there has been a violation of Article 13 (Art. 13) of 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
48. 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."
49. The applicant alleges, in substance, that Article 6 (Art. 6) of
the Convention is applicable to his case.
50. 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.
51. They 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. The Government therefore consider that the minor offence
in question is not criminal in nature.
52. 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 fine imposed on the applicant amounted to
1,000 Slovak crowns, i.e. approximately one sixth of the then average
monthly salary, and that it was the maximum fine which can be imposed
for the minor offence in question. The Government also submit 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.
53. 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).
54. 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.
55. 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).
56. 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.
57. 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).
58. 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).
59. In this respect, the Commission recalls that the applicant was
fined for a minor offence against public order under Section 47 (1) (a)
and (c) of the Minor Offences Act on the ground that he had disturbed
boarders in a spa house and refused to obey police officers.
60. 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.
61. 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".
62. 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.
63. In addition, the Minor Offences Act contains several provisions
which, in the Commission's view, 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.
64. 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.
65. In determining the type and amount of the sanction the
administrative authorities shall 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.
66. The Commission also notes that Section 202 of the Criminal Code
classifies as a criminal offence the fact that a person "commits a
gross indecency or causes a gross disturbance". The characteristics
of such a criminal offence are similar, to a certain extent, to those
of a minor offence under Section 47 (1) (c) of the Minor Offences Act.
67. 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.
68. 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.
69. 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).
70. 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.
71. 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
72. The applicant submits that his right to a fair and public hearing
before an independent and impartial tribunal has not been respected.
73. 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.
74. 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).
75. 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).
76. The Commission recalls that the applicant was involved in an
incident in the course of which police officers restrained and
handcuffed him following his failure to obey them. His case was
subsequently examined by the police department in Piestany. In fact,
Section 58 (b) entitles police authorities to examine cases involving
minor offences against public order.
77. The police department submitted a report on the applicant's case
to the Piestany 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.
78. An officer of the Piestany Local Office's legal department
examined the applicant's case and established that the applicant had
committed a minor offence against public order pursuant to
Section 47 (1) (a) and (c) of the Minor Offences Act in that he had
disturbed other persons in a spa house and refused to obey police
officers. The applicant's appeal was dismissed by the head of the
legal department of the Trnava District Office.
79. Thus, the proceedings against the applicant were initiated by the
police, i.e. an authority subordinated to the Ministry of the Interior.
The applicant's case was subsequently examined by the Piestany Local
and Trnava 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.
80. 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 department officers
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.
81. 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 Piestany Local Office and the Trnava District Office did not comply
with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
82. The Commission notes that the administrative organs' decisions
in the applicant's case were not reviewable by the general courts. The
applicant attempted to lodge a constitutional complaint pursuant to
Article 127 of the Constitution but it was rejected as he had failed
to appoint a lawyer representing him in the proceedings. However, the
respondent Government do not suggest that the applicant's
constitutional complaint had any prospect of success and the Commission
has before it no information that would indicate that the
Constitutional Court had jurisdiction to review the applicant's case.
83. Thus, under Slovak law the decisions of the administrative
authorities in the applicant's case 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) of the Convention. The
Commission therefore finds that the applicant's right to a fair hearing
before an independent and impartial tribunal established by law has not
been respected.
CONCLUSION
84. 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 6 para. 3 (c) (Art. 6-3-c) of the Convention
85. Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:
"Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of
justice so require;"
...
86. The Commission recalls that the guarantees under Article 6
para. 3 (Art. 6-3) develop in more detail the concept of a fair trial
laid down in Article 6 para. 1 (Art. 6-1) of the Convention. In the
light of its wider examination of the issues arising under Article 6
para. 1 (Art. 6-1) and its finding above on the lack of independence
of the administrative authorities dealing with the applicant's case,
the Commission finds it unnecessary to examine this issue further.
CONCLUSION
87. The Commission concludes, unanimously, that no separate issue
arises under Article 6 para. 3 (Art. 6-3) of the Convention.
E. As regards Article 13 (Art. 13) of the Convention
88. The applicant further complains that he had no effective domestic
remedy in respect of his complaints 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."
89. 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
90. The Commission concludes, unanimously, that the application does
not raise a separate issue under Article 13 (Art. 13) of the
Convention.
F. Recapitulation
91. 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. 84).
92. The Commission concludes, unanimously, that no separate issue
arises under Article 6 para. 3 (Art. 6-3) of the Convention (para. 87).
93. The Commission concludes, unanimously, that no separate issue
arises under Article 13 (Art. 13) of the Convention (para. 90).
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission