Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27061/95

by Jaroslav KADUBEC

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

L. LOUCAIDES

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 14 October 1994

by Jaroslav Kadubec against the Slovak Republic and registered on

20 April 1995 under file No. 27061/95;

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

application;

- the observations submitted by the respondent Government on

8 January 1996 and the observations in reply submitted by the

applicant on 14 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak citizen born in 1943. He is unemployed

and resides in Bratislava.

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

summarised as follows.

The particular circumstances of the case

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).

On 30 November 1993 the Piestany Local Office 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

("the Act" - see "Relevant domestic law" 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 Act, and he was ordered to pay the

costs of the proceedings of 150 Slovak crowns.

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, inter alia, 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. On 21 January 1994 the Trnava District Office upheld the

decision challenged by the applicant.

On 18 March 1994 the applicant lodged a complaint with the

Constitutional Court (Ústavny súd). He alleged that the administrative

authorities dealing with his case had not established the facts

correctly as he could not present his arguments. The applicant further

alleged that he was indigent and that for this reason the

Constitutional Court should appoint a lawyer for him.

On 25 March 1994 the Constitutional Court asked the applicant to

submit, within ten days, the power of attorney representing him in the

proceedings. 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. He was advised to request a lawyer to represent him. The

applicant was informed that if he failed to submit the power of

attorney within 21 days his complaint would be rejected.

On 8 April 1994 the applicant requested the President of the

Slovak Bar Association to appoint a lawyer for him. On 12 April 1994

he completed his request by giving the names of five lawyers who had

refused to represent him without charging him fees. On 19 April 1994

the applicant was informed that his request for the appointment of a

lawyer would be examined by the Bar Association at the beginning of

May 1994.

On 19 April 1994 the applicant informed the Constitutional Court

of these facts and requested that his complaint should be examined

after a lawyer had been appointed for him. After that date he has not

received any reply from the Bar Association.

On 25 May 1994 the Constitutional Court rejected the applicant's

complaint. It noted that the complaint did not meet the formal

requirements since the applicant had failed, despite two prior

requests, to authorise a lawyer to represent him in the proceedings as

required by Section 22 of the Constitutional Court Act.

Relevant domestic law

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 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.

According to Section 47 (1) (a) and (c) of the Act, 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) of the Act such a minor offence is punishable with

a maximum fine of 1,000 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.

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.

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.

Pursuant to Section 22 of the Constitutional Court Act (Zákon o

organizácii Ústavného súdu Slovenskej republiky, o konaní pred ním a

o postavení jeho sudcov) of 20 January 1993, participants to the

proceedings before the Constitutional Court (if they are individuals

or legal persons) have to be represented by a barrister or by a

commercial lawyer.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in that his case was not examined by an independent and impartial

tribunal established by law, and that he was deprived of the right to

defend himself through legal assistance.

He also complains that he had no effective remedy before a

national authority in this respect and alleges a violation of

Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 October 1994 and registered

on 20 April 1995.

On 19 October 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written 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.

THE LAW

The applicant complains that his right to a fair hearing before

an independent and impartial tribunal, to defend himself through legal

assistance and to an effective remedy before a national authority was

violated in the proceedings concerning the fine which he had to pay

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.

...

3. 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;

..."

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 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 does 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 submits that Article 6 (Art. 6) of the Convention

is applicable and that its guarantees were not respected in the

proceedings in which he was fined.

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 complaints

cannot, therefore, 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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

M. de SALVIA S. TRECHSEL

Deputy Secretary President

to the Commission of the Commission

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KADUBEC v. THE SLOVAK REPUBLIC

KADUBEC v. THE SLOVAK REPUBLIC

LEXI