AS TO THE ADMISSIBILITY OF

Application No. 36909/97

by František GAULIEDER

against the Slovak Republic

The European Commission of Human Rights sitting in private on 19 October 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

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

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 June 1997 by František GAULIEDER against the Slovak Republic and registered on 17 July 1997 under file No. 36909/97;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 18 May 1998 and the observations in reply submitted by the applicant on 4 June 1998;             

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1951 and resident in Galanta .              The facts of the case, as submitted by the parties, may be summarised as follows.             

A. The particular circumstances of the case

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.

On 26 November 1996 the applicant informed the President of the National Council that he had withdrawn, as from 5 November 1996, from the parliamentary group of the Movement for A Democratic Slovakia  and that he had not joined any other parliamentary party.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.

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

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 and delivered on 4 December 1996 the applicant informed the President of the National Council that he had not sent the letter dated 26 November 1996 and that he would not resign from his office until its expiry.

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.

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.

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

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 para. 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.

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 para. 1 of the Constitution.

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 acting.

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 has not been renewed.

B. Relevant domestic law

The following provisions of the Constitution of the Slovak Republic are relevant in the present case:

Article 73

[translation]

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."

Article 81

[translation]

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

...

COMPLAINTS

The applicant complains that he was unlawfully deprived of his right to sit as a member of the National Council of the Slovak Republic.  He invokes Article 3 of Protocol No. 1 and Article 4 para. 1 of the Convention.

The applicant further complains that the National Council decided to terminate his office on the basis of a letter which he had not dispatched and thereby violated his right to respect for his private life as guaranteed by Article 8 of the Convention.

The applicant complains that the termination of his office was motivated by the fact that he had withdrawn from the party for which he had been elected and of which he no longer shared the opinions and that, for similar reasons, the National Council refused, in disregard of the Constitutional Court's finding in his favour , to renew his office.  He considers that he was thereby prevented from holding opinions and to impart information and ideas as an independent Member of Parliament and alleges a violation of Article 10 of the Convention.

The applicant further complains that he did not have at his disposal an effective remedy before a national authority as guaranteed by Article 13 of the Convention.

Finally, the applicant complains under Article 14 of the Convention that he was discriminated against in the enjoyment of his right to freedom of expression as guaranteed by Article 10 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

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

On 19 January 1998 the Commission decided to communicate the application to the respondent Government.

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

THE LAW

1. The applicant complains that he was unlawfully deprived of his right to sit as a member of the National Council of the Slovak Republic, and that he was thereby prevented from holding opinions and  imparting information and ideas as an independent Member of Parliament.  He invokes Article 3 of Protocol No. 1 and Articles 4 para. 1, 10, 13 and 14 of the Convention.  The Commission has examined these complaints also under Article 11, both taken alone and in conjunction with Articles 13 and 14 of the Convention.  The aforesaid provisions read, so far as relevant, as follows:

Protocol No. 1, Article 3 of the Convention

"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."

Article 4 para. 1 of the Convention

"No one shall be held in slavery or servitude."

...

Article 10 of the Convention

"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 of the Convention

"1. Everyone has the right to freedom of peaceful assembly and 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.  This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

Article 13 of the Convention

"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."

Article 14 of the Convention

"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."

The Government contend that the case raises an issue only under Article 3 of Protocol No. 1.

The applicant contests the Government's view.  He  recalls that on several occasions he expressly informed both the President and the members of the National Council of the Slovak Republic that he did not wish to resign and considers it irrelevant from the legal point of view that prior to his election he had signed a letter to this effect.  In the applicant's view, there exist no particular circumstances justifying the deprivation of his office and the subsequent refusal to renew it.

The Commission considers that the aforesaid complaints raise serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.  It follows that this part of the application cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.  No other ground for declaring it inadmissible has been established.

2. The Commission has also examined the applicant's complaint under Article 8 of the Convention, both taken alone and in conjunction with Article 13 of the Convention but finds, to the extent that it has been substantiated and is within its competence, that it does not disclose any appearance of a violation of the rights and freedoms guaranteed by the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicant's complaint under Article 8 of the Convention, both taken alone and in conjunction with Article 13 of the Convention;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder              of the application.

        M. de SALVIA                                                        S. TRECHSEL

         Secretary                                                                      President

     to the Commission                                                   of the Commission