Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26138/95

by I. L.

against the Slovak Republic

The European Commission of Human Rights sitting in private on

21 October 1996, 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

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. M. de SALVIA, Deputy 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 13 June 1994 by

I. L. against the Slovak Republic and registered on 6 January 1995

under file No. 26138/95;

Having regard to:

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

the Commission;

- the Commission's decision of 19 October 1995 to communicate the

applicant's complaints concerning the proceedings leading to the

imposition of a fine and to declare inadmissible the remainder

of the application;

- the observations submitted by the respondent Government on

8 January 1996 and the observations in reply submitted by the

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

5 August 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak citizen born in 1953. He is a software

programmer and resides in Dubnica nad Váhom.

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

summarised as follows.

The particular circumstances of the case

Since 1989 the applicant has been living in a block of flats

owned by a co-operative. In June 1992 he requested, pursuant to a

newly adopted legislation, that the flat should be sold to him.

Since then his neighbours and other individuals have disturbed

him 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 is to dissuade him from buying the flat.

On several occasions, the applicant asked the police to

investigate the disturbances and to prosecute the responsible persons.

The police informed the applicant that the alleged facts had not been

established. They found no evidence of an offence or a minor offence

and terminated the investigation. On 15 April 1994 the police gave

notice of these facts to the Dubnica nad Váhom Local Office (Obvodny

úrad).

On 11 May 1994 the latter found that the applicant had committed

a minor offence (priestupok) pursuant to Section 49 (1) (d) of the

Minor Offences Act ("the Act" - see "Relevant domestic law" below) in

that he had accused without justification family B. of causing

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

the costs of the proceedings of 150 Slovak crowns. On 28 July 1994 the

Povazská Bystrica District Office (Okresny úrad) upheld this decision.

On 16 August 1994 the applicant lodged a complaint with the

Constitutional Court (Ústavny súd). In his submissions of

5 October 1995 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.

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 comes 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 the

minor offences, is also fully binding 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."

Relevant domestic law

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 amended. The following provisions of the Act were

applicable to the applicant's case during the relevant period.

In accordance with Section 1 of the Act, administrative 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 or

contravene public order and civic propriety.

Pursuant to Section 2 (1) of the Act, 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 the Minor

Offences Act or another act, unless such act represents a separate

administrative offence punishable under special legal rules or a

criminal offence.

The Act refers to repressive measures for minor offences as

"sanctions" (sankcie). Repressive measures for offences under the

Criminal Code are referred to as "penalties" (tresty).

Section 11 (1) of the Act provides for the following sanctions

for a minor offence:

a) reprimand,

b) fine,

c) prohibition to exercise a certain activity,

d) confiscation of an object.

Section 11 (2) provides that a sanction can be imposed either

separately or in combination with another sanction. However, a

reprimand cannot be combined with a fine.

Pursuant to Section 11 (3) of the Act, an administrative

authority can decide not to impose a sanction if it considers that the

mere fact that it has dealt with the minor offence is sufficient to

reform its perpetrator.

Section 12 (1) of the Act provides that, when deciding on the

type and amount of the sanction, the authority concerned shall take

into account 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.

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.

Pursuant to Section 51 of the Act, the proceedings concerning

minor offences are governed, unless otherwise provided, by the

Administrative Proceedings Act.

According to Section 73 (1) of the Act, a person 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.

Section 73 (2) provides that an accused 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 suggestions and lodge remedies. An accused cannot be

forced to make statements and to plead guilty.

Pursuant to Section 77 of the Act, the operative part of a

decision by which an accused is found guilty of a minor offence shall

comprise, inter alia, 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 and, as the case may be, the

decision not to impose a sanction in accordance with Section 11 (3) of

the Act.

Pursuant to Section 83 (1) of the Act, certain decisions on minor

offences (imposition of a fine exceeding 2,000 Slovak crowns,

prohibition on the exercise of a certain activity for a period

exceeding six months or the confiscation of an object of a value

exceeding 2,000 Slovak crowns) can be reviewed by the courts. In such

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

Procedure on administrative judicature are applied.

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.

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.

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.

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 shall not be excluded from the jurisdiction of courts of law.

Article 121 of the Constitution entitles the Government to grant

a pardon in matters concerning minor offences.

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.

COMPLAINTS

The applicant alleges that his right to a fair hearing before an

independent and impartial tribunal established by law, as guaranteed

by Article 6 of the Convention, was violated in the proceedings leading

to the imposition of a fine on him. He also alleges a violation of

Article 13 of the Convention in this respect.

The applicant further complains that in the proceedings in which

he was fined he was discriminated against on the ground of being of

Czech origin.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 June 1994 and registered on

6 January 1995.

On 19 October 1995 the Commission decided to communicate the

applicant's complaints concerning the proceedings leading to the

imposition of a fine on him to the respondent Government and to declare

the remainder of the application inadmissible.

The Government's written observations were submitted on

8 January 1996. The applicant replied on 20 January 1996. He

submitted further observations on 12 and 22 March, 21 June and

5 August 1996.

THE LAW

1. The applicant complains that his right to a fair hearing by an

independent and impartial tribunal and his right to an effective remedy

before a national authority was violated in the proceedings in which

he was fined under the Minor Offences Act. He alleges a violation of

Articles 6 and 13 (Art. 6, 13) of the Convention which provide, so far

as relevant, as follows:

Article 6 (Art. 6)

"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.

..."

Article 13 (Art. 13)

"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."

The Government submit that Article 6 (Art. 6) of the Convention

is not applicable to the proceedings at issue. In particular, they

point out that the minor offence for which the applicant was fined does

not fall under criminal law in the Slovak legal system.

In the Government's view, the act for which the applicant was

fined lacks a serious character and cannot also constitute a breach of

the general criminal law. 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 the Act does

not encourage punishment. They therefore consider that the minor

offence at issue is not criminal in nature.

Finally, the Government contend 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 imposition of a sanction under the Act is

within the discretionary power of the administrative authority

concerned, and that the sanctions for minor offences are not entered

in the criminal record.

The applicant disagrees and alleges, in substance, that his

rights guaranteed by Articles 6 and 13 (Art. 6, 13) of the Convention

were violated.

After an examination of these issues in the light of the parties'

submissions, the Commission considers that they raise questions of fact

and law, including the question of the applicability of Article 6

(Art. 6) of the Convention, which can only be determined by an

examination of the merits. It follows that the applicant's aforesaid

complaints cannot be declared inadmissible as being manifestly ill-

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

Convention. No other grounds of inadmissibility have been established.

2. The applicant further alleges that the authorities dealing with

his case discriminated against him on the ground that he is of Czech

origin. He alleges a violation of Article 14 (Art. 14) of the

Convention which reads as follows:

"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 Commission finds, insofar as the matter complained of has

been substantiated and is within its competence, that in the present

case there is no appearance of discrimination contrary to Article 14

(Art. 14) 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 INADMISSIBLE the applicant's complaint under Article 14

of the Convention;

DECLARES ADMISSIBLE, without prejudging the merits, the

remainder of the application.

M. de SALVIA S. TRECHSEL

Deputy Secretary President

to the Commission of the Commission

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LAUKO v. SLOVAKIA

LAUKO v. SLOVAKIA