Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30900/96

by Ondrej GALLO

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 September 1996, 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

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

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 26 July 1995 by

Mr. Ondrej Gallo against the Slovak Republic and registered on 1 April

1996 under file No. 30900/96;

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 1939. He is retired

and resides in Kosice. The facts of the case, as submitted by the

applicant, may be summarised as follows.

A. The particular circumstances of the case

By an order dated 23 February 1990 the Minister of the Interior

suspended the applicant from the police. By another order of 17 July

1990 the applicant was dismissed pursuant to Section 100 para. 1 (e)

of Act No. 100/1970 (see "The relevant domestic law" below). The

dismissal was based on the finding of a special commission according

to which between 1983 and 1989 the applicant had repeatedly used

official cars for private purposes and had abused his position of the

Head of the Public Security Section of the National Security Corps in

Kosice.

The applicant complained that his guilt had not been proved and

that the Minister's decision to dismiss him violated his right to be

presumed innocent. On 16 October 1990 the Minister of the Interior

upheld his decision of 17 July 1990. He held, inter alia, that no

criminal charges against the applicant were determined by the decision

to dismiss him. The decision concerning the applicant's dismissal

became final on 22 October 1990.

On 26 September 1990 the Presov Military Prosecutor introduced

criminal proceedings against the applicant on the ground that by the

acts imputed to him by the Minister he had committed criminal offences.

On 15 April 1991 the proceedings were discontinued as the offences of

which the applicant had been accused fell under the presidential

amnesty of 1 January 1990. The applicant requested that the

proceedings should be pursued as he considered himself innocent.

On 18 May 1994 the Velky Krtís District Court (Okresny súd)

acquitted the applicant, and on 27 September 1994 the Banská Bystrica

Regional Court (Krajsky súd) upheld this decision. The courts held

that insofar as the acts imputed to the applicant could have been

established, they did not attain a degree of gravity which would

warrant qualifying them as offences under the Criminal Code.

The applicant requested several times that, having regard to his

acquittal, the Minister of the Interior should quash the decision

concerning his dismissal and order allowances and damages to be paid

to him. On 27 September 1994 the Minister informed the applicant that

he had been dismissed in accordance with Section 100 para. 1 (e) of Act

No. 100/1970, and that no criminal charge against him had been

determined by that decision.

On 12 October 1994 the Minister informed the applicant, with

reference to Section 139 of Act No. 410/1991, that his right to claim

that the decision to dismiss him should be quashed had lapsed, and that

it was therefore irrelevant that the applicant had been acquitted. On

25 January 1995 the Minister informed the applicant that he would

examine his claim for damages on receipt of the criminal courts'

decisions in the applicant's case.

The applicant sought judicial review of both the order concerning

his dismissal from the police and the Minister's refusal to quash it

after his acquittal.

On 28 April 1995 the Supreme Court (Najvyssí súd) discontinued

the proceedings. It held that it lacked jurisdiction to examine the

applicant's claims concerning his dismissal in 1990. It noted that

decisions concerning dismissal from the police pursuant to Act No.

100/1970 had not been reviewable by courts, and that in any event

Section III of Act No. 519/91 excluded the judicial review of

administrative organs' decisions which had become final prior to 1

January 1992, i.e. the date when the administrative judiciary had been

established.

As to the complaint about the Minister's refusal to quash the

decision concerning the applicant's dismissal, the Supreme Court

recalled that Section 141 of Act No. 410/1991 provided for judicial

review of, inter alia, decisions concerning a policeman's dismissal,

but not of such decisions as were challenged by the applicant. It

pointed out that the applicant's claim in this respect could only be

considered as a request for an extraordinary remedy. Its refusal was

not, however, reviewable by courts.

On 5 June 1995 the applicant lodged a constitutional complaint.

He claimed, inter alia, that his right to be presumed innocent had been

violated, and that the Supreme Court should have dealt with the merits

of his action. He requested that the Minister's decisions to suspend

and to dismiss him from the police and the Supreme Court's judgment of

28 April 1995 should be quashed. The applicant also complained that

no allowances and damages had been paid to him.

The Constitutional Court (Ústavny súd) rejected the complaint on

12 July 1995. It held that in proceedings concerning constitutional

complaints it could only review the challenges of final decisions made

by administrative authorities or local self-governing bodies in cases

involving violations of fundamental rights and freedoms unless the

protection of such rights fell under the jurisdiction of the general

courts. Furthermore, it could not examine the alleged violation of

rights which had occurred prior to the entry into force of the

Constitution on 1 October 1992. The Constitutional Court concluded

that it lacked jurisdiction to deal with the applicant's case.

B. The relevant domestic law

Section 100 para. 1 (e) of Act No. 100/1970 on Service in the

National Security Corps (Zákon o sluzobnom pomere príslusníkov Zboru

národnej bezpecnosti) of 17 November 1970, as amended, provides that

a member of the corps can be dismissed in case of breach of his or her

oath, failure to carry out his or her duties, or gross abuse of

authority and if his or her further service would cause prejudice to

the National Security Corps.

Pursuant to para. 1 (f) of the same Section, a member of the

corps can be dismissed if he or she was convicted of a criminal offence

and sentenced, by a judgment that has become final, to a term of

imprisonment.

Section 124 of Act No. 100/1970 provides for the possibility of

quashing, by means of an extraordinary remedy, final decisions under

the aforesaid Act if their unlawfulness is established. However, such

decisions can only be quashed within three years after they have become

final.

Pursuant to Section 125 of Act No. 100/1970 final decisions under

this Act can be quashed, at the request of the policeman concerned, if

important new facts are established. The request for such a decision

to be quashed is to be lodged within three years after it has become

final.

Act No. 410/1991 on Service in the Police Corps (Zákon o

sluzobnom pomere príslusníkov Policajného zboru) of 25 September 1991

replaced Act No. 100/1970 as regards members of the Police Corps. It

entered into force on 1 November 1991.

Pursuant to Section 138 of the aforesaid Act final decisions may

be quashed, at the request of the policeman concerned, if important new

facts are established. Such a request can only be lodged within three

years after the decision at issue has become final.

Section 139 of Act No. 410/1991 entitles the Minister to quash

a decision, within three years after it has become final, if its

unlawfulness is established.

Section 141 para. 1 (a) of Act No. 410/1991 provides for judicial

review of certain decisions concerning the dismissal of policemen.

Pursuant to para. 2 of the same Section the request for review of such

decisions is to be filed within 30 days after they have become final.

Act No. 519/1991 amended the Code of Civil Procedure in that,

inter alia, the decisions of administrative organs became reviewable

by courts unless the law provided otherwise. It entered into force as

from 1 January 1992. Pursuant to Section III para. 4 (a) of the

aforesaid Act, actions against decisions of administrative authorities

can be examined by courts only in cases when the available remedies

were exhausted and the decisions complained of became final after the

entry into force of Act No. 519/1991.

COMPLAINTS

The applicant complains that the Minister refused to quash the

decision concerning his dismissal notwithstanding that he had been

acquitted. In his view, his right to be presumed innocent was thereby

violated. He also complains that he was deprived of his right to a

judicial review of both the decision concerning his dismissal and the

Minister's refusal to quash it after his acquittal.

The applicant further complains that he did not receive the

allowances he was entitled to, and that no damages were paid to him

after his acquittal. He alleges a violation of Articles 3, 6 and 7 of

the Convention.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing ... by an independent and impartial

tribunal established by law...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

a) To the extent that the applicant complains that the courts

refused to deal with his complaint about the Minister's decision to

dismiss him, the Commission recalls that the Supreme Court discontinued

the proceedings as it found, inter alia, that the decision at issue had

not been reviewable by courts pursuant to Act No. 100/1970, and that

in any event Section III of Act No. 519/91 excluded the judicial review

of administrative organs' decisions which had become final prior to 1

January 1992.

The Commission considers, even assuming that the impossibility

of having the Minister's decision to dismiss the applicant reviewed by

a judicial body with full jurisdiction amounted to a breach of Article

6 (Art. 6) of the Convention, that the applicant would have become a

victim of it on 22 October 1990 at the latest, i.e. when this decision

became final. Such a breach would have been instantaneous in regard

to the applicant's rights under Article 6 (Art. 6) of the Convention.

As to the aforesaid Supreme Court's finding of 28 April 1995, the

Commission considers that it merely confirmed the aforesaid

impossibility of judicial review (cf., mutatis mutandis, Eur. Court HR,

Kefalas and Others v. Greece judgment of 8 June 1995, Series A no. 318-

A, pp. 19-20, para. 45).

Thus, the alleged interference with the applicant's right of

access to a court occurred on 22 October 1990 at the latest, whereas

the former Czech and Slovak Federal Republic only ratified the

Convention and recognised the right of individual petition pursuant to

Article 25 (Art. 25) of the Convention on 18 March 1992. However, the

Convention only governs, for each Contracting Party, facts subsequent

to its entry into force with respect to that Party.

The applicant's constitutional complaint cannot be considered as

an effective remedy capable of bringing the case within the competence

ratione temporis of the Commission as the Constitutional Court lacks

jurisdiction to deal with complaints which relate to a period prior to

1 October 1992.

It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention within the

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

b) The applicant further complains that the Minister refused to

quash the decision to dismiss him notwithstanding that he had been

acquitted, and that the Supreme Court did not deal with his claim in

this respect.

The Commission recalls that Article 6 (Art. 6) of the Convention

is only applicable, inter alia, to disputes ("contestations") over a

"right" which can be said, at least on arguable grounds, to be

recognised under domestic law (cf. Eur. Court HR, Skärby v. Sweden

judgment of 28 June 1990, Series A no. 180-B, p. 36, para. 27).

Under Slovak law the applicant could only request that the

Minister of the Interior should quash the decision to dismiss him if

either the existence of relevant new facts or the unlawfulness of this

decision was established. Such a request represented an extraordinary

remedy the use of which was within the discretionary power of the

Minister. The applicant could lodge it within three years after the

decision concerning his dismissal had become final, i.e. until 22

October 1993.

In these circumstances, the Commission considers that the right

claimed by the applicant, namely to have the decision concerning his

dismissal quashed on the ground that he had been acquitted in 1994, was

not recognised, even on arguable grounds, under Slovak law.

Accordingly, Article 6 (Art. 6) of the Convention was not applicable

to the proceedings at issue.

To the extent that the applicant complains, in substance, that

the Minister refused to re-admit him to the police, the Commission

recalls that the Convention does not guarantee as such any right to

access to the civil service (cf. Eur. Court HR, Kosiek v. the Federal

Republic of Germany judgment of 28 August 1986, Series A no. 105, p.

20, para. 35).

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

c) The applicant further alleges a violation of his right to be

presumed innocent in that the Minister of the Interior refused to quash

his decision concerning the applicant's dismissal after the latter had

been acquitted.

The Commission recalls that on 27 September 1994 the Minister

informed the applicant that he had been dismissed in accordance with

Section 100 para. 1 (e) of Act No. 100/1970 and that no criminal

charges had been thereby determined. On 12 October 1994 the Minister

informed the applicant that in accordance with Section 139 of Act No.

410/1991 his right to claim a review of the decision by which he had

been dismissed had lapsed. The Minister considered it therefore

irrelevant that the applicant had been acquitted.

These comments cannot be considered as a formal declaration that

the applicant is guilty. Furthermore, it does not appear from the

documents submitted that the Slovak authorities dealing with the

applicant's case made any other statements, in the period falling

within the competence ratione temporis of the Commission, which would

imply that the applicant is guilty.

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.

2. To the extent that the applicant complains that he did not

receive the allowances he was entitled to and that no damages were paid

to him after his acquittal, the Commission notes that it does not

appear from the documents submitted that he brought these claims before

the general courts. In this respect the applicant has not, therefore,

complied with the requirement as to the exhaustion of domestic remedies

laid down in Article 26 (Art. 26) of the Convention.

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 Articles 3 and 7

(Art. 3, 7) of the Convention. The Commission has examined such

complaints but finds that, insofar as they have been substantiated and

are within its competence, they do not disclose any appearance of a

violation of the rights and freedoms set out in 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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GALLO v. THE SLOVAK REPUBLIC

GALLO v. THE SLOVAK REPUBLIC