FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13624/03 by J á n KOKY and Others against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 22 September 2009 as a Chamber composed of:

Nicolas Bratza, President, Lech Garlicki, Ljiljana Mijovi ć , David Th ó r Bj ö rgvinsson, J á n Å ikuta, P ä ivi Hirvel ä , Mihai Poalelungi, judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 17 April 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are ten Slovak nationals of Roma ethnic origin. Their particulars appear in the appendix. They are represented before the Court by Mr A. Dobrushi of the European Roma Rights Center in Budapest and Mr C. Igboanusi of the League of Human Rights Advocates in Bratislava .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

At approximately 7 p.m. on 28 February 2002 an argument arose when the non ‑ Romani owner of a bar in the village of G ánovce -Filice refused to serve an alcoholic drink to a person of Roma ethnic origin. During the dispute the owner of the bar telephoned her son who was believed to be a member of an extremist “skinhead” group.

At about 10 p.m. on the same day a group of approximately 30 young men armed with baseball bats and iron bars surrounded the Roma settlement where the applicants lived. They shouted threatening racist phrases, for example “Tsiganes, come out, we will kill you all today”, and started to break the windows and doors of several houses in the settlement. They entered several of the homes, physically attacked the inhabitants and damaged their buildings and possessions. One Romani man managed to telephone the police while hiding under a bed. When the attackers learned that the police had been called they left the settlement but continued to physically attack all Roma persons that they encountered.

The police arrived at the settlement at 11 p.m., approximately one hour after the incident. They conducted a preliminary interview with several victims of the attack.

During the incident two of the applicants suffered serious physical injuries. Mr Rastislav Koky (the fifth applicant) had to spend two weeks in hospital with multiple head injuries and Mr Martin Ko č ko (the second applicant) spent one month in hospital with injuries to his arms. Damage to the applicants ’ property and possessions was estimated at a minimum of 13,000 Slovak korunas.

On 1 March 2002 the District Police Investigator in Poprad initiated a criminal investigation into the offence of violating the privacy of a home, causing intentional damage to private property and causing intentional bodily harm. In a further decision, given on 13 March 2002 , the offence of violence against a group of inhabitants was added.

On 10 April 2002, during a line-up and by looking at photographs, four applicants identified persons who they believed may have taken part in the attack.

On 26 April 2002 the District Police Investigator suspended the criminal investigation into the attack. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person. The decision also stated that the attack in issue had been preceded by an incident in the course of which a person of Roma origin had struck a waitress who had refused to serve him a drink. After the attack on the Roma settlement, a group of unidentified Roma persons had broken windows in the house of the waitress and had damaged her son ’ s car. The facts were therefore not established to prove a racially motivated offence.

Two applicants filed a complaint against the decision to suspend the investigation. They submitted, with reference to the facts of the case, that the attack had been racially motivated and that it had been organised by persons who were close to the family of the waitress concerned.

The District Prosecutor in Poprad rejected the complaint on the ground that it was filed by unauthorised persons as Article 173(4) of the Code of Criminal Procedure did not entitle the victim to file a complaint against the decision on a stay of criminal prosecution. Under Article 142(1) the complaint could only be filed by the person directly affected by the decision or by the person who initiated the investigation. Only a resolution whereby a decision was made directly on the claims of the victim as stipulated in Article 43 could be deemed to be a decision directly affecting the victim. The resolution on a stay of criminal prosecution, however, makes no decision on such claims. Nevertheless, the District Prosecutor reviewed the impugned decision and found it to be unlawful. In a letter dated 22 May 2002 she informed the applicants that she had quashed the decision on 3 May 2002 and ordered the investigator to resume the investigation into the case.

On 3 May 2002 the police investigator issued a decision by which he resumed the criminal proceedings in accordance with the instruction of the public prosecutor. The decision stated that the offence had been racially motivated and that further investigation was required into the case.

On 26 June 2002 the police investigator again suspended the proceedings pursuant to Article 173(1)(e) of the Code of Criminal Procedure.

The applicants submit that the police investigators did not conduct any interviews with them, witnesses or suspects between 3 May 2002 and 26 June 2002.

On 3 July 2002 the first and fifth applicants filed a second complaint against the decision to suspend the investigation. They alleged that in the course of a line-up organised on 10 April 2002, the injured Roma had identified several persons involved in the attack against them. They therefore requested that the criminal proceedings should be resumed with a view to establishing the relevant facts of the case.

On 11 July 2002 the applicants wrote to the General Prosecutor to inform him that they had filed a complaint with the District Prosecutor and to ask the General Prosecutor what further steps they were required to take. It is not known if the General Prosecutor replied to this letter.

On 17 July 2002 a public prosecutor of the District Prosecutor ’ s Office in Poprad issued a decision by which she rejected the complaint on the ground that it had been filed by unauthorised persons. Nevertheless, she again reviewed the impugned decision. In a separate letter dated 17 July 2002, she informed the applicants that the police investigator had performed all of the acts necessary to carry out a successful prosecution. According to the letter, none of the injured persons had identified the persons who had allegedly been involved in the offences in issue. Additional action had been taken with a view to identifying the perpetrators, such as a comparison of the traces found at the scene of the incident with buccal mucus samples of the suspects, but the available evidence did not permit the bringing of charges against any particular person.

On 20 September 2002 all ten applicants filed a complaint with the Constitutional Court . They complained that the decision of the District Office of Investigation in Poprad to suspend the proceedings on 26 June 2002 violated their right to judicial protection under Article 46(1) of the Constitution and of Article 13 of the Convention. The applicants submitted that the authorities had stayed the criminal prosecution before taking all necessary steps to ensure its success.

On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust the other remedies available as required by Article 53(1) of the Constitutional Court Act. In particular, it had been open to the applicants to ask the public prosecutor, pursuant to Article 167 of the Code of Criminal Procedure, to instruct the police investigator under Article 174(2) (a) and (c) of the Code to proceed with the case. Had the public prosecutor dismissed such a request, the applicants could have used the remedies available under sections 31 et se q. of Act 153/2001 Coll.

No appeal against the decision of the Constitutional Court was available.

B. Relevant domestic law and practice

1. The Code of Criminal Procedure

Under Article 173(1)(e) an investigator shall suspend criminal proceedings where it has been impossible to establish facts allowing for the prosecution of a particular person.

Pursuant to Article 173(3), prior to suspending criminal proceedings the authority concerned is obliged to make all necessary arrangements for ensuring the successful completion of the proceedings. Where the reason for suspending the case has fallen away, the proceedings are to be resumed.

Article 173(4) provides that a decision to suspend criminal proceedings is to be served on the injured person and, within 48 hours, also on the public prosecutor involved.

Pursuant to Article 141, a remedy against a decision is a complaint, and any decision of an investigator and police authority, except a decision to commence a criminal prosecution, can be challenged. Section 142(1) provides that unless stipulated by law or otherwise, a complaint may only be filed by a person directly concerned by the decision.

Under Article 174(1), public prosecutors supervise respect for the law at the preliminary stage of criminal proceedings. Pursuant to paragraph 2(a) and (c), public prosecutors are entitled, in particular, to give binding instructions on investigations into criminal offences as well as to carry out an investigation and issue a decision in any matter within their competence.

Pursuant to Article 167 the accused and the injured person have the right, at any moment during the investigations to ask a public prosecutor to eliminate delays in an investigation or any shortcomings in the conduct of the investigator or a police authority. No time-limit applies to the filing of such a request which a public prosecutor is obliged to deal with speedily. The petitioner is to be informed about the conclusion reached.

According to Article 43(1), an injured person is also entitled to claim compensation for damages, propose evidence or additional evidence to be presented, consult the case file, be present at the main court hearing and at the hearing on the appeal, give his or her opinion on the evidence presented, make a final speech before the court and lodge an appeal to the extent stipulated by the Code of Civil Procedure.

Pursuant Article 43(2) the injured person is entitled to claim damages against the accused. He or she is also entitled to propose that the court orders the convicted person to pay damages claimed. The proposal has to be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and to the amount of damages claimed.

2. Act 153/2001 Coll.

Act 153/2001 governs public prosecution including the role and powers of public prosecutors.

Pursuant to section 31(1) and (2), public prosecutors review the lawfulness of actions and decisions of public authorities, including the police and investigators. They do so on the basis, inter alia , of oral or written petitions filed by individuals or legal persons requesting them to take an action within their competence. In exercising this power public prosecutors may take measures necessary for the elimination of the violations found.

Pursuant to section 32 (1) and (2) a petition can be lodged with every level of the prosecution service. A public prosecutor confirms receiving a written petition within 10 days from the date when it was received.

Pursuant to section 32 (3) if a public prosecutor is not competent to deal with a petition he/she is obliged to transfer it within 10 days to a competent public prosecutor or to a competent public body and to inform a petitioner accordingly.

Pursuant to section 33(1) and (2) public prosecutors are obliged to deal with a petition within two months from the date when it was filed and within the same time-limit they are obliged to inform a petitioner of the manner in which the petition was dealt with.

Section 34(1) provides that a person who has filed a petition may re-file it with a view to having determined whether or not his or her original petition was dealt with in a lawful manner. Such a re-filed petition is to be dealt with by the superior of the public prosecutor who examined the petitioner ’ s original petition.

In dealing with a petition public prosecutors are obliged by section 35 (1) and (2) to examine all circumstances decisive for the assessment whether there was a violation of the law and whether the matter fell within their competence. Public prosecutors are obliged to examine a petition according to its content and to take into account all facts emerging during the examination.

Pursuant to section 35 (3) if a petition proves to be justified, public prosecutors are obliged to take measures necessary for the elimination of a violation in accordance with the Act on Prosecution Service or other relevant acts.

3. The Constitutional Court

Article 127 of the Constitution, enacted with effect from 1 January 2002, reads:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person ’ s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to restore the situation existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

Under section 53(1) of the Constitutional Court Act 1993, a complaint to the Constitutional Court is admissible only where the applicant has used effective remedies provided for by the law to protect his or her fundamental rights. In proceedings III. US 123/01 t he plaintiff complained, inter alia , about shortcomings in criminal proceedings against him conducted by the police investigator and supervised by the Bratislava Regional Prosecutor ’ s Office. On 13 December 2001 the Constitutional Court rejected the complaint. It held that the plaintiff, apart from availing himself of his rights under the Code of Criminal Procedure, could have sought redress before the General Prosecutor ’ s Office (which was hierarchically superior to the Regional Prosecutor ’ s Office) pursuant to Act 153/2001 Coll.

COMPLAINTS

With reference to a survey of similar events and observations by international monitoring organisations, the applicants submitted that their allegations of violations of the Convention should be considered “against the backdrop of systematic discrimination and racist attacks to which Roma in Slovakia are subjected, and the repeated failure of State authorities to investigate and prosecute such crimes”.

The applicants complain ed under Article 3 of the Convention that they were subjected to violence amounting to torture, inhuman and degrading treatment, and that the Slovak authorities failed to carry out a prompt, impartial and effective official investigation into the case.

The applicants alleged that the perpetrators ’ intrusion into their homes and destruction of their property amounted to a violation of their rights under Article 8 of the Convention and under Article 1 of Protocol No. 1. The applicants submitted, in particular, that the failure by the Slovak authorities to prevent and suppress acts of racist violence as well as the failure to carry out an effective investigation into the incident constituted a breach of the Government ’ s positive obligations under Article 8.

The applicants complained that the Slovak authorities ’ failure to effectively investigate the offences committed against them and to prosecute the perpetrators amounted to a violation of Article 13 in conjunction with Articles 3 and 8 of the Convention.

Finally, the applicants complained that the above alleged violations of their Convention rights were due to their Roma ethnicity. They relied on Article 14 of the Convention in conjunction with Articles 3, 8 and 13.

THE LAW

The applicants complained under Articles 3, 8 and Article 1 of Protocol No. 1 about the failure to carry out an effective investigation into an attack on their settlement during which they were subjected to violence and their property destroyed. They also made associated complaints under Articles 13 and 14 of the Convention. The Government disputed that the investigation was ineffective and submitted that they had fulfilled their obligations under the Convention.

(a) Exhaustion of domestic remedies

The Government submitted that the application should be rejected for non-exhaustion of domestic remedies as required by Article 35 § 1 of the Convention. In particular, the Government submitted that the second, third, fourth, sixth, seventh, eighth, ninth and tenth applicants could have requested a review of the conduct of the investigator or police authority under section 167 of the Code of Criminal Procedure. If they were not happy with the disposal of their request under Article 167, they could have re-filed the petition under Article 34(1) of Act 153/2001 Coll. for it to be dealt with by a superior of the public prosecutor.

With regard to the first and fifth applicants, the Government accepted that they twice filed a complaint against the decision to suspend the criminal prosecution and their complaints were rejected on the ground that they were filed by unauthorised persons. In each instance, however, the public prosecutor reviewed the impugned decision and if the applicants were not satisfied with the outcome they could have filed a motion with a superior public prosecutor to review the lawfulness of the public prosecutor ’ s conduct.

Finally, the Government reminded the Court that the applications of all ten applicants to the Constitutional Court were rejected because they had failed to exhaust the domestic remedies set out above.

The first and fifth applicants, on the other hand, submitted that they did everything possible to exhaust domestic remedies by filing complaints which contained pertinent information, but their complaints were rejected as the Slovak Code of Criminal Procedure did not include provisions which permitted a victim to appeal against a decision to suspend a criminal investigation, when the resolution to suspend the criminal investigation did not make a decision on the claims of the victim. They submitted that following the Court ’ s decisions in Granger v. the United Kingdom , 28 March 1990, Series A no. 174 and A v. France (application no. 14838/89), an applicant was not required to try more than one avenue of redress when there were several available and he or she was not required to seek redress more than once by way of a repeated request or application to the same body.

Moreover, the applicants submitted that the State party had failed to indentify any basis for believing either that the District Prosecutor would have reached a different conclusion if faced with a further identical complaint, in the absence of new facts, or that an appeal to a higher prosecutor would have met with a more favourable response.

The Court finds that issues as to the availability of redress and as to the effectiveness of the remedy in question arise under the substantive complaint made by the applicants under Article 13 of the Convention in conjunction with Articles 3 and 8 of the Convention. It considers that the submissions made by the Government concerning non-exhaustion are closely connected with these aspects. They should therefore be joined to the merits of the application and reserved for later consideration.

In light of the parties ’ submissions, the Court considers that the part of the application relating to Article 13 raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

(b) Article 3

The applicants further complained under Article 3 of the Convention that they were subjected to violence amounting to torture, inhuman and degrading treatment. The Government, however, submitted that the applicants were not subjected to ill-treatment such as would meet the high threshold required by Article 3. The applicants disagreed and maintained that their serious physical injuries coupled with racial abuse and psychological damage qualified as ill-treatment contrary to Article 3.

The Court considers, in light of the parties submissions, that the complaints raise serious issues of law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. It must therefore be declared admissible.

(c) Article 1 of Protocol No. 1

The applicants also alleged that the perpetrators ’ intrusion into their homes and destruction of their property amounted to a violation of their rights under Article 8 of the Convention and under Article 1 of Protocol No. 1. The Government, however, submitted that the State fulfilled its obligation to conduct an effective investigation into the attacks on the applicants and to protect their rights under Article 8 and Article 1 of Protocol No. 1 to the Convention. The applicants disputed the Government ’ s argument. They submitted that the attacks constituted an unquestionable violation of their rights under both Article 8 and Article 1 of Protocol No. 1 to the Convention which was compounded by the State ’ s failure to conduct an effective investigation and administer criminal sanctions.

The Court again considers, in light of the parties ’ submissions, that the complaint raises serious issues of law under the Convention which requires an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

(d) Article 14

Finally, the applicants complained that the above alleged violations of their Convention rights were due to their Roma ethnicity. They relied on Article 14 of the Convention in conjunction with Articles 3, 8 and 13. The Government contended that the applicants had failed to demonstrate that they were treated differently compared to other aggrieved persons in the context of criminal proceedings. The applicants, however, submitted that there was a causal link between the ill-treatment suffered by the applicants and their ethnic status. The attack itself had a racial motivation and the subsequent failure to investigate their claims with appropriate diligence was also a result of their ethnicity.

The Court considers, in light of the parties ’ submissions, that the complaint raises serious issues of law under the Convention which require an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

For these reasons, the Court unanimously

Joins to the merits the question relating to exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the application as a whole.

Lawrence Early Nicolas Bratza Registrar President

A P P E N D I X

LIST OF THE APPLICANTS

1. Mr J án KOKY, born in 1959, resides in Gánovce.

2. Mr Martin KOČKO, born in 1985, resides in Gánovce.

3. Ms Žaneta KOKYOVÁ, born in 1984, resides in Gánovce.

4. Mr Milan BALÁŽ, born in 1978, resides in Gánovce.

5. Mr Rastislav KOKY, born in 1982, resides in Gánovce.

6. Ms Renáta KOKYOVÁ, born in 1978, resides in Gánovce.

7. Ms Ružena KOKYOVÁ, born in 1959, resides in Gánovce.

8. Ms Renáta ČONKOVÁ, born in 1975, resides in Gánovce.

9. Ms Justina LACKOVÁ, born in 1968, resides in Gánovce.

10. Mr Ján KOKY, born in 1976, resides in Poprad.