Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30894/96

by V.S.

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

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 9 January 1996 by

V.S. against the Slovak Republic and registered on 1 April 1996 under

file No. 30894/96;

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 a Slovak national born in 1915. He is retired

and resides in Cífer.

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

summarised as follows.

In 1964 the local government in Cífer issued two documents

stating that the applicant had been a member of the paramilitary

organization Hlinka Guard (Hlinkova garda) and that his family had

supported the so called "Slovak State" which had existed from 1939 to

1945. The applicant learned about these documents from a decision of

the Trnava District Prosecutor's Office of 8 July 1983 referring to

them and also to the fact that during World War II the applicant had

been arrested by the Gestapo.

On 23 April 1985 the Trnava District Court (Okresny súd)

dismissed the applicant's action in which he alleged that one of the

aforesaid documents issued in 1964 interfered with his honour and

reputation and claimed that it should not be used by the local

government. The District Court established that the document had been

in the meantime destroyed and that it had never been used to the

detriment of the applicant.

On 18 September 1985 the Bratislava Regional Court (Krajsky súd)

upheld this decision. It pointed out that the Trnava District

Prosecutor's Office had obtained a copy of the document from an

individual.

Subsequently the applicant lodged an action for protection of his

honour and reputation against two officers who had issued the documents

in 1964 and against two other persons who, in his view, had spread

defamatory information contained in those documents. On 11 May 1988

the Trnava District Court dismissed the action. It established that

the applicant had been a member of the Hlinka Guard and concluded that

the mentioning of this fact in an official document could not be

considered as a defamation.

On 13 May 1993 the applicant lodged a new action for protection

of his honour and reputation. It was directed against three officers

of the local government in Cífer whom the applicant considered

responsible for issuing and distributing one of the documents issued

in 1964 and against a judge of the Trnava District Court who, in the

applicant's view, had unlawfully dismissed his action on 11 May 1988.

On 10 February 1994 the Bratislava Regional Court discontinued

the proceedings against the first and the second defendant. It held

that it could not deal with this part of the action as a final court

decision on the same claim against those local government officers had

been delivered by the Trnava District Court on 11 May 1988. The

Regional Court also noted that the first defendant had died and that

the applicant had withdrawn his action against him.

As regards the third and the fourth defendant (i.e. another local

government officer and the Trnava District Court's judge), the Regional

Court dismissed the applicant's action. It established, inter alia,

that the third defendant had not been involved in issuing the document

in question and held that the applicant had not shown that that

defendant had interfered with the applicant's honour and reputation.

As regards the action against the Trnava District Court's judge, the

Regional Court held that his decision to dismiss the applicant's claim

could not be considered as an interference with the applicant's right

to protection of his honour and reputation.

On 19 July 1994 the Supreme Court (Najvyssí súd) upheld the part

of the Regional Court's judgment by which the action against the third

and the fourth defendant had been dismissed and quashed the Regional

Court's decision concerning the second defendant. The Supreme Court

shared the Regional Court's view that there existed a final decision

as regards the applicant's claim concerning the issuing of the document

of 1964. However, the Supreme Court considered that the Regional Court

should have examined whether the second defendant had not interfered

with the applicant's right to protection of his honour and reputation

by other means and should also have heard the second defendant in

person.

Subsequently the Bratislava Regional Court held three hearings

in the course of which it heard both the applicant and the second

defendant. The court intended also to hear witnesses but the applicant

stated that there were no witnesses to prove that the second defendant

had made defamatory statements in his regard.

The Regional Court established that the applicant's claim in

respect of the second defendant concerned exclusively the document

which had been issued in 1964. The court recalled that it could not

deal with this claim as a final decision on it had been delivered

earlier by the Trnava District Court. On 18 April 1995 the Bratislava

Regional Court discontinued the proceedings against the second

defendant.

On 31 August 1995 the Supreme Court upheld this decision. It

noted that the applicant had not shown that the second defendant was

responsible for other interference with his rights than that in respect

of which a final decision already existed.

On 4 October 1995 the applicant addressed a complaint to the

Constitutional Court (Ústavny súd). On 25 October 1995 a judge

informed the applicant that the Constitutional Court lacks jurisdiction

to review the decisions of general courts.

Subsequently, the applicant unsuccessfully requested the General

Prosecutor's Office that a complaint in the interest of the law

(staznost pre porusenie zákona) should be lodged in his case.

COMPLAINTS

The applicant complains that the courts failed to ensure respect

for his right to protection of his honour and reputation in that they

ignored the evidence before them and decided arbitrarily on his claim.

He alleges a violation of Article 19 para. 1 of the Constitution of the

Slovak Republic which guarantees to everyone the right to protection

of his or her dignity, honour, reputation and good name.

THE LAW

1. To the extent that the applicant alleges a violation of his

rights in the proceedings leading to the decision of the Bratislava

Regional Court of 18 September 1985 and to the decision of the Trnava

District Court of 11 May 1988, the Commission recalls that the

Convention only governs, for each Contracting Party, facts subsequent

to its entry into force with respect to that Party.

Since the former Czech and Slovak Federal Republic ratified the

Convention on 18 March 1992, this part of the application must be

rejected as being incompatible ratione temporis with the Convention

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

2. To the extent that the applicant complains about the dismissal

of his action against the third and the fourth defendant in the

proceedings which he had instituted on 13 May 1993, the Commission

notes that the final decision in respect of these defendants had been

delivered by the Supreme Court on 19 July 1994. Since the applicant

introduced the application on 9 January 1996, he has not respected the

six months' time-limit laid down in Article 26 (Art. 26) of the

Convention.

The Commission has noted that subsequently the applicant sought

redress before the Constitutional Court and the General Prosecutor's

Office. Since the Constitutional Court lacked jurisdiction to deal

with the applicant's case and the lodging of a complaint in the

interest of the law was within the discretionary power of the public

prosecutor, these remedies cannot be regarded as effective.

Accordingly, the dismissal of the applicant's requests addressed to the

aforesaid authorities cannot be taken into consideration in determining

the date of the final decision (see No. 9136/80, Dec. 10.7.81, D.R. 26,

p. 242; No. 12604/86, Dec. 10.7.91, D.R. 70, pp. 125, 135).

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

3. Finally, the applicant alleges a violation of his right to

protection of his dignity, honour, reputation and good name in that his

claim against the second defendant in the proceedings which he had

instituted on 13 May 1993 was arbitrarily dismissed. The Commission

will examine this complaint under Article 8 (Art. 8) of the Convention

the first paragraph of which guarantees to everyone, inter alia, the

right to respect for his or her private life.

The Commission notes that the Bratislava Regional Court, after

the case had been returned to it by the Supreme Court, held three

hearings in the course of which it heard both the applicant and the

second defendant. The court intended also to hear witnesses but the

applicant stated that there were no witnesses to prove that the second

defendant had made defamatory statements in his regard.

Thus in the proceedings before the Regional Court the applicant

failed to show that his claim raised a separate issue from that on

which a final decision had been delivered in 1988. As courts lack

jurisdiction to decide on an issue which had become res iudicata, the

Regional Court discontinued the proceedings. This decision was

subsequently reviewed by the Supreme Court which found that the

Regional Court had correctly established and assessed the facts of the

applicant's case.

The Commission has before it no information that would indicate

that the decision in question is arbitrary and that the courts gave

inadequate consideration to the applicant's right to respect for his

private life. The Commission therefore considers that the decision to

discontinue the proceedings against the second defendant cannot be

interpreted as a failure to provide protection for the applicant's

rights under Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly ill-

founded 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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