Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 38855/97

by Alica MALFATTI

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 September 1997

by Alica MALFATTI against the Slovak Republic and registered on

3 December 1997 under file No. 38855/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian national. She was born in 1932 and

resides in Rome. Before the Commission the applicant is represented

by Mr S. Detvai, a lawyer practising in Bratislava.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

On 27 June 1945 Slovak authorities handed the applicant's father,

Ján Eszterházy, over to Soviet security forces at the latter's request.

He was to be returned to Slovak authorities within ten days but was

deported to the Soviet Union.

On 14 August 1946 criminal proceedings were brought against the

applicant's father in Slovakia in accordance with the Slovak National

Council's Order No. 33/1945 (see "The relevant domestic law" below).

On 10 June 1947 the National Court (Národny súd) issued an arrest

warrant against the applicant. In the arrest warrant, the court noted

that the applicant's father was staying at an unknown place abroad.

On 17 August 1947 the public prosecutor indicted the applicant's

father for treason and proposed that the proceedings be continued in

his absence.

On 16 September 1947 the National Court refused to stay the

proceedings until the whereabouts of the applicant's father became

known as requested by the defence counsel. On the same day the

National Court convicted the applicant's father of treason and

sentenced him to the death penalty. The applicant's father was further

deprived of civil rights and his property was confiscated.

In 1949 Soviet authorities extradited the applicant's father to

Czechoslovakia. Following an individual pardon granted by the

president of Czechoslovakia the death penalty imposed on the

applicant's father was changed to a life sentence. The applicant's

father died in prison in 1957.

On 8 May 1995 the applicant requested the General Prosecutor's

Office to lodge a complaint about breach of the law (staznost pre

porusenie zákona) in the proceedings leading to her father's

conviction. The applicant alleged, inter alia, that the proceedings

had been unlawful as her father could not defend himself before the

National Court.

On 20 May 1996 a public prosecutor of the General Prosecutor's

Office dismissed the applicant's request. He pointed out that the

applicant's father had been convicted pursuant to a special law of

retributive nature which had been temporarily enacted at the end of the

World War II. The public prosecutor further recalled that this law had

ceased to be effective on 31 December 1947 and concluded that the

extraordinary remedy set out in Section 266 et seq. of the Code of

Criminal Procedure could not be used in the case of the applicant's

father.

On 3 April 1997 the General Prosecutor informed the applicant

that Section 266 et seq. of the Code of Criminal Procedure could not

be used in the case of her father as the latter had been convicted in

the context of extraordinary proceedings under a special law which had

ceased to be effective on 31 December 1947. The General Prosecutor

expressed his opinion that a review of the judgment in question would

only be possible if a law was enacted to this effect.

B. The relevant domestic law

The applicant's father was convicted of an offence under and in

proceedings conducted pursuant to Order No. 33/1945 on Punishment of

Fascist Criminals, Occupants, Traitors and Collaborators and on the

Establishment of People's Judiciary (Nariadenie o potrestaní

fasistickych zlocincov, okupantov, zradcov a kolaborantov a o zriadení

ludového súdnictva) of 15 May 1945, as amended.

Under Order No. 33/1945 special people's courts (including the

National Court) were established. People's courts ceased to exist and

the relevant legal rules governing their functioning ceased to be

effective on 31 December 1947.

Pursuant to Section 266 para. 1 of the Code of Criminal

Procedure, the General Prosecutor may challenge before the Supreme

Court (Najvyssí súd), by means of a complaint about breach of the law,

a final decision of a court or other authority which was delivered as

a result of miscarriage of justice.

Section 268 para. 2 of the Code of Criminal Procedure provides

that when the Supreme Court establishes, upon a complaint lodged by the

General Prosecutor, that there was a breach of the law as a result of

a decision or proceedings which preceded its delivery, it shall deliver

a judgment to this effect.

Under Section 269 para. 2 of the Code of Criminal Procedure, if

the Supreme Court finds that there was a breach of the law to the

disadvantage of the accused person, it shall quash the decision in

question or the relevant part thereof.

If a new decision on the issue in question is required, the

Supreme Court shall, pursuant to Section 270 para. 1 of the Code of

Criminal Procedure, order the authority in question to re-examine the

case and to deliver a new decision.

COMPLAINTS

The applicant complains that the General Prosecutor refused to

lodge a complaint about breach of the law in her father's case and thus

deprived her of the possibility of having the charges against her

father determined in proceedings that would conform to the law. She

alleges a violation of Article 6 paras. 1 and 3 (a), (b), (c) and (d)

of the Convention, and of Articles 2 para. 1 and 4 para. 2 of Protocol

No. 7.

THE LAW

The applicant complains about the refusal, by the General

Prosecutor, to lodge a complaint about breach of the law in her

father's case. She alleges a violation of Article 6 (Art. 6) of the

Convention and Articles 2 para. 1 and 4 para. 2 of Protocol No. 7

(Art. P7-2-1, P7-4-2) which provide, so far as relevant, as follows:

Article 6 (Art. 6) of the Convention

"1. 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.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

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;

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;"

...

Protocol No. 7, Article 2 para. 1 (P7-2-1) of the Convention

"Everyone convicted of a criminal offence by a tribunal shall

have the right to have his conviction or sentence reviewed by a

higher tribunal. The exercise of this right, including the

grounds on which it may be exercised, shall be governed by law."

Protocol No. 7, Article 4 (P7-4) of the Convention

"1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for

an offence for which he has already been finally acquitted or

convicted in accordance with the law and penal procedure of that

State.

2. The provisions of the preceding paragraph shall not prevent

the reopening of the case in accordance with the law and penal

procedure of the State concerned, if there is evidence of new or

newly discovered facts, or if there has been a fundamental defect

in the previous proceedings, which could affect the outcome of

the case."

...

To the extent that the applicant complains that her father's

right to have his conviction and sentence reviewed by a higher tribunal

was not respected, the Commission recalls that the applicant's father

was convicted and sentenced by a judgment delivered by the National

Court on 16 September 1947. Since the Commission can only deal with

applications against the Slovak Republic concerning matters which are

subsequent to 18 March 1992 (see No. 23131/93, Dec. 4.3.96, D.R. 85-B,

p. 65), the criminal proceedings leading to the conviction of the

applicant's father fall outside the competence ratione temporis of the

Commission.

As regards the applicant's complaints under Article 6 (Art. 6)

of the Convention concerning the dismissal of her request for a

complaint about breach of the law to be lodged in her father's case,

the Commission notes that pursuant to Section 266 para. 1 of the Code

of Criminal Procedure the use of this extraordinary remedy was within

the discretionary power of the General Prosecutor, the relevant

provisions imposing no formal obligations on him in this respect.

Accordingly, Section 266 para. 1 of the Code of Criminal

Procedure cannot be held to have introduced a remedy directly available

to the applicant in domestic law. In accordance with the Commission's

case-law, the refusal by the General Prosecutor to lodge a complaint

about breach of the law as requested by the applicant cannot affect the

date of the final decision in the case of the applicant's father (see

No. 9136/80, Dec. 10.7.81, D.R. 26, pp. 242, 244).

In the Commission's view, the General Prosecutor, when deciding

on the applicant's request, did not determine or re-determine any

"criminal charge" against the applicant's father (see, mutatis

mutandis, No. 19155/92 and 21655/93, Dec. 16.5.95, D.R. 81-A, pp. 5,

13). Furthermore, the Convention does not guarantee, as such, a right

to review of a trial (see No. 14739/89, Dec. 9.5.89, D.R. 60, pp. 296,

301). The proceedings before the General Prosecutor fall, therefore,

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

To the extent that the applicant alleges a violation of

Article 4 para. 2 of Protocol No. 7 (P7-4-2) the Commission considers

that no right to a retrial can be deduced from this provision under

which it is possible, in the context of protection of freedom from

double jeopardy set out in para. 1 of the same Article, to re-open a

case under certain circumstances. Accordingly, this complaint is also

outside the scope of the Convention and the protocols thereto.

It follows that the application is incompatible with the

Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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MALFATTI v. THE SLOVAK REPUBLIC

MALFATTI v. THE SLOVAK REPUBLIC

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