Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26138/95

by I.L.

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 19 October 1995, the following members being present:

MM. H. DANELIUS, President

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 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 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 citizen born in 1953. He is a software

programmer and resides in Dubnica nad Váhom.

The facts of the case, as submitted by the applicant, 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.

The applicant unsuccessfully sought redress with the co-operative

and the Dubnica nad Váhom Town Office (Mestsky úrad). He was informed,

inter alia, that he could claim the alleged violation of the right to

protection of his dignity and honour before a court.

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 pursuant to Section 49 (1) (d) of Act No. 372/1990 (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 1994 he claimed, inter alia, that the administrative organs'

decisions to fine him should be quashed. He also asked for a review

of the police's decisions to terminate investigation of the alleged

offences against him.

In particular, he alleged a violation of Article 3 of the

Convention in that the manner in which the proceedings before these

authorities had been held encouraged his neighbours to continue

disturbing and offending him. He further alleged a violation of

Article 6 of the Convention in that there had been no fair and public

hearing within a reasonable time in his case, and that the

administrative authorities dealing with the case lacked independence.

The applicant also invoked Articles 8 and 14 of the Convention.

On 24 November 1994 the Constitutional Court dismissed the

applicant's constitutional complaint as being manifestly ill-founded.

It recalled that pursuant to Section 83 of Act No. 372/1990 the

lawfulness of administrative organs' decisions on minor offences is

reviewable by courts only in cases where, inter alia, a fine exceeding

2,000 Slovak crowns has been imposed. The Constitutional Court

declared itself fully bound by this provision. It further held that

it lacked jurisdiction to review decisions of police authorities.

Relevant domestic law

The applicant was fined for a minor offence against civic

propriety pursuant to Act No. 372/1990 on Minor Offences (Zákon o

priestupkoch) of 28 August 1990 as amended ("the Act").

Pursuant to Section 2 (1) of the Act a minor offence is a

negligent or intentional action which is directed against or causes

danger to the public interest and is expressly classified as a minor

offence in Act No. 372/1990 or another act, unless such action

represents a separate administrative offence punishable under other

legal rules, or a criminal offence.

The Act refers to repressive measures for minor offences as

"sanctions" (sankcie). 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.

According to Section 49 (1) (d) of the Act a person who

deliberately violates civic propriety by, inter alia, unjustifiedly

accusing other person of a minor offence commits a minor offence

against civic propriety. By Section 49 (2) such an offence is

punishable with a maximum fine of 3,000 Slovak crowns.

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) are reviewable by the courts. In such

a case the relevant provisions 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 competent authorities

that a criminal offence, a minor offence or another administrative

offence punishable under special rules has been committed.

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.

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 fundamental rights and freedoms of citizens,

unless the protection of such rights falls under the jurisdiction of

another court.

COMPLAINTS

The applicant complains of ill-treatment by various individuals

and official authorities, of the refusal to investigate his complaints

in this respect and to prosecute the responsible persons, and of the

proceedings leading to the imposition of a fine on him. He alleges a

violation of Articles 1, 3, 6, 8, 10, 13 and 14 of the Convention.

THE LAW

1. The applicant alleges a violation of his rights under the

Convention in the proceedings leading to the imposition of a fine on

him. He refers to Articles 6, 13 and 14 (Art. 6, 13, 14) of the

Convention in this respect. The Commission considers that it cannot,

on the basis of the file, determine the admissibility of this complaint

and that it is therefore necessary, in accordance with Rule 48 para.

2 (b) of the Rules of Procedure, to give notice of this part of the

application to the respondent Government.

2. The applicant further complains that the Slovak authorities which

dealt with his case violated his right to freedom of expression

guaranteed by Article 10 (Art. 10) of the Convention in that they

imposed a fine on him for having made statements against his neighbour

which he was not able to prove.

Article 10 (Art. 10) of the Convention, as far as relevant,

provides:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, ... for the protection

of the reputation or rights of others ..."

The Commission does not consider it necessary to examine whether

the applicant has complied with the requirement as to the exhaustion

of domestic remedies laid down in Article 26 (Art. 26) of the

Convention since this complaint is in any event inadmissible for the

following reasons.

In the Commission's view the fine for an offence against civic

propriety imposed on the applicant constituted an interference with the

exercise of the latter's freedom of expression. Such an interference

is in breach of Article 10 (Art. 10) of the Convention, unless it is

justified under paragraph 2 of Article 10 (Art. 10-2), i.e. it must be

"prescribed by law", have an aim that is legitimate under Article 10

para. 2 (Art. 10-2) and be "necessary in a democratic society".

The legal basis of the interference under consideration was Act

No. 372/1990. The Commission finds that the provisions of this Act

were accessible, and the fine complained of was also foreseeable under

the relevant legislation (cf., mutatis mutandis, Eur. Court H.R.,

Barthold judgment of 25 March 1985, Series A no. 90, pp. 21-23,

paras. 45-48). The sanction issued against the applicant can,

therefore, be considered as "prescribed by law" for the purposes of

Article 10 para. 2 (Art. 10-2) of the Convention.

Moreover, the decision complained of aimed to protect "the

reputation or rights of others", namely the members of family B. whom

the applicant had accused, without being able to justify it, of having

committed a minor offence against him. This is a legitimate aim under

Article 10 para. 2 (Art. 10-2) of the Convention.

It remains to be determined whether the interference complained

of was "necessary in a democratic society" and proportionate to the

legitimate aims pursued (cf., e.g., Eur. Court H.R., Observer and

Guardian judgment of 26 November 1991, Series A no. 216 pp. 29-30,

para. 59).

In its decision of 11 May 1994 the Dubnica nad Váhom Local Office

found that the applicant had unjustifiedly accused family B. of causing

him nuisance with the aim of making him leave his flat. Thereby the

factual ingredients of a minor offence against civic propriety pursuant

to Section 49 (1) (d) of the Act were given.

The Commission considers that the sanction imposed on the

applicant was not disproportionate to the legitimate aim pursued, and

that the reasons adduced were relevant and sufficient.

In these circumstances, the interference complained of can be

regarded as "necessary in a democratic society" within the meaning of

Article 10 para. 2 (Art. 10-2) 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.

3. a) To the extent that the applicant alleges a violation of his

rights under the Convention by his neighbours and other individuals,

the Commission recalls that it cannot entertain complaints against an

individual (cf. No. 11590/85, Dec. 18.7.86, D.R. 48 p. 258). This part

of the application is therefore incompatible ratione personae with the

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

Convention.

b) The applicant also complains that the competent Slovak

authorities failed to secure the respect for his private life

guaranteed by Article 8 (Art. 8) of the Convention. The Commission

notes, however, that the applicant failed to lodge a claim for

protection of his dignity and honour with the competent civil court

pursuant to Section 11 et seq. of the Civil Code.

For these reasons, the applicant failed to comply 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.

c) The applicant further alleges a violation of his rights

guaranteed by Article 6 (Art. 6) of the Convention in that the Slovak

authorities failed to prosecute persons who had allegedly committed

offences against him.

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

Convention does not include a right to have criminal proceedings

instituted against third persons (cf. No. 9777/82, Dec. 14.7.83, D.R.

34, p. 158).

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.

d) The applicant complains that by failing to prosecute persons

who have ill-treated him the Slovak authorities have also violated his

rights under Article 3 (Art. 3) of the Convention.

Pursuant to Article 3 (Art. 3) of the Convention no one shall be

subjected to torture or to inhuman or degrading treatment or

punishment.

The Commission notes, that the applicant has failed to

substantiate the facts complained of before the competent Slovak

authorities. Moreover, before the Commission the applicant has adduced

no evidence of any severe or long-lasting effects as a result of the

treatment complained of. In the Commission's view, the examination of

this complaint does not disclose any appearance of a violation of

Article 3 (Art. 3) of the Convention.

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

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

Convention.

e) Finally, the applicant complains of violations of his rights

under Articles 13 (Art. 13+1+3+6+8+10) and 14 (Art. 14+1+3+6+8+10) of

the Convention in combination with Articles 1, 3, 6 (in respect of the

refusal to prosecute third persons), 8 and 10 of the Convention. The

Commission has examined these complaints, but finds that, insofar as

they 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 also manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaints

concerning the proceedings leading to the imposition of a fine;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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LAUKO v. SLOVAKIA

LAUKO v. SLOVAKIA

LEXI