FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46115/99 by Pavol BENEDEK against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 8 October 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pavol Benedek, is a Slovakian national, who was born in 1932 and lives in Se čovce . He is represented before the Court by Mr V. Hajduk, a lawyer practising in Michalovce.

A. The circumstances of the case

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

On 9 November 1996 the applicant’s neighbour, together with his wife and son, entered the applicant’s courtyard against the applicant’s will. They had an altercation with the applicant in the course of which both the applicant and the neighbour’s wife were injured.

The applicant was examined by doctors. The medical certificates indicate that the applicant’s eye was injured and that he had facial bruising. The applicant was unable to work for fourteen days. Subsequently, the doctors established that the applicant’s ear had been seriously damaged. According to the applicant, this was due to the injury which he suffered on 9 November 1996.

On 9 November 1996 the applicant filed a criminal complaint with the police department in Se č ovce in which he complained that he had been wounded and that his right to respect for his home had been violated. On 20 December 1996 the police concluded that the neighbours had not committed a criminal offence. The case was submitted to the Trebi šov District Office with a view to establishing whether the actions complained of constituted minor offences falling under the Minor Offences Act.

Subsequently, the Tre bišov Public Prosecutor’s Office instructed the police to investigate whether or not an offence had been committed in the context of the above altercation between the applicant and his neighbours. On 22 April 1997 the District Office stayed the proceedings pending the outcome of the investigation. It appears that criminal proceedings were brought against the applicant on the ground that he had injured the neighbour’s wife. The criminal proceedings are still pending.

On 12 November 1997 the Tre bišov District Office discontinued the proceedings under the Minor Offences Act. It found that more than one year had lapsed from the date on which the alleged minor offences had been committed and that the liability of the persons concerned had lapsed.

On 27 February 1998 a public prosecutor of the District Prosecutor’s Office in Trebi šov informed the applicant that he had found no shortcomings in the way in which his criminal complaint had been investigated.

On 20 May 1998 the Ko šice Regio nal Prosecutor’s Office dismissed the applicant’s complaint that the police and public prosecutors had failed to investigate properly the incident of 9 November 1996. The letter stated that the neighbours’ actions could only be qualified as minor offences.

B. Relevant domestic law and practice

The Civil Code and the relevant practice

Under Article 126(1), owners of property are entitled to protection against persons who interfere with their property rights.

In accordance with the relevant case-law, a court shall order a person who interfered, without justification, with the owner’s rights to abstain from such interference. A claim under Article 126(1) may be successfully lodged even in cases where the interference consisted of a single action which remained without consequences if it cannot be excluded that the action would be repeated in the future (Supreme Court’s Collection of Judicial Decisions and Opinions, nos. 3/1971 and 65/1972).

The Criminal Code

Under Article 221, a person who commits an assault in that he or she deliberately damages the health of another person shall be punished by a fine or by a prison sentence up to five years.

Pursuant to Article 222(1), a person who deliberately causes serious damage to another person’s health shall be punished by a prison sentence between two and eight years.

Article 238 provides that a person who, without justification, enters the domestic premises of another person commits the offence of violation of domestic privacy. Such an offence is punishable, depending on the circumstances, by a fine or by a prison sentence of up to five years.

Regulation No. 32/1965

Regulation No. 32/1965, as amended, governs compensation for damage caused to a person’s health.

Pursuant to section 2(1), adequate compensation shall be awarded in respect of pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.

Sections 4-7 govern the payment of compensation for lasting effects of damage to a person’s health.

COMPLAINT

The applicant complains under Article 8 § 1 of the Convention that the Slovakian authorities failed to investigate properly the incident of 9 November 1996 in which his neighbours entered his courtyard and injured him.

THE LAW

The applicant complains that no proper investigation was carried out into the incident in which the neighbours entered his courtyard and injured him. He alleges a violation of Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

In the instant case the question arises as to whether the respondent State complied with its positive duty to take reasonable and appropriate measures to secure the applicant’s rights under Article 8 § 1 of the Convention, in particular his right to respect for his home and personal integrity (see the X and Y v. the Netherlands judgment of 26 March 1985, Series A, no. 91, § 23, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 41, and the Guerra v. Italy judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 58).

The Court considers that in the circumstances of the applicant’s case, Article 8 of the Convention required the authorities of the respondent State to secure the applicant’s rights under Article 8 by putting in place effective criminal-law provisions to deter the commission of offences against the applicant’s person and property backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions (see, mutatis mutandis , the Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115). It notes in this connection that acts of trespass and criminal assault are proscribed in the domestic law of the respondent State, and offenders are exposed to criminal and civil sanctions.

The Court observes that in a first stage the police, following an investigation, concluded that the applicant’s neighbours could not be charged with a criminal offence. There was a subsequent inquiry into whether proceedings could be brought against the neighbours under the Minor Offences Act. These proceedings were discontinued when the one ‑ year limitation period lapsed.

The Court considers that it does not have to examine whether an issue arises under Article 8 on account of the application of the limitation period in the circumstances of this case. It notes that the applicant was entitled to issue proceedings in the civil courts pursuant to Regulation No. 32/1965 in conjunction with the relevant provisions of the Civil Code governing the right to compensation for damage. Such proceedings could have led to an order against the neighbours for the payment of damages covering both the pain and suffering sustained by the applicant and any deterioration of his health resulting from the injury inflicted on him. In the Court’s view, such a remedy was capable of providing adequate redress for the applicant’s complaint (see, mutatis mutandis , Calvelli and Ciglio v. Italy [GC], no. 32967/96, 17 January 2002, §§ 53-54).

The Court further notes that, to the extent that the applicant complains that his neighbours cannot be prevented from entering his courtyard, he has at his disposal a remedy under Article 126(1) of the Civil Code.

Having regard to the above considerations, it cannot be said that there is any appearance of a breach by the respondent State of its positive obligations under Article 8 in the circumstances of the applicant’s case.

It follows that this complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention both for non-exhaustion of domestic remedies and as being manifestly ill-founded.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President