FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62584/00 by Å tefan HARABIN against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 9 July 2002 as a Chamber composed of

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

Having regard to the above application lodged on 14 October 2000 and registered on 7 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Štefan Harabin, is a Slovakian national, who was born in 1957 and lives in Bratislava. He is represented before the Court by Mrs E. Ľal í ková, a lawyer practising in Bratislava.

A. The circumstances of the case

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

On 11 February 1998 the National Council of the Slovak Republic elected the applicant President of the Supreme Court for a five year period.

On 16 August 2000 the Government adopted a resolution under which it initiated the revocation of the applicant’s appointment on the ground, inter alia , that his views as regards disciplinary proceedings against the Supreme Court judges were different from those of the Minister of Justice. Reference was also made to the applicant’s views and initiatives concerning the enactment of possible amendments to the Constitution and to the laws governing the judiciary.

The applicant filed a petition to the Constitutional Court. He alleged a violation of his right to freedom of expression and also of Article 30 §§ 1 and 4 of the Constitution.

On 10 October 2000 the Constitutional Court dismissed the applicant’s petition as being manifestly ill-founded. The decision stated that the Government’s proposal to revoke the applicant’s appointment as President of the Supreme Court did not amount to a violation of any of his constitutional rights. The Constitutional Court pointed out, in particular, that there was no right under the Constitution to exercise the post to which the applicant had been elected. Furthermore, there was no indication that the applicant’s right to freedom of expression or his other constitutional rights were violated as a result of the proposal to remove him from the post since that proposal did not, as such, directly affect the applicant’s rights or his interests protected by law.

On 19 December 2000 the members of the National Council, by 62 votes to 60, with 15 abstentions, disapproved of the motion that the applicant’s appointment be revoked.

The applicant has continued holding the post of President of the Supreme Court.

B. Relevant domestic law

The following provisions of the Constitution, as in force at the relevant period, are relevant in the present case.

Pursuant to Article 30(1), citizens have the right to participate in the administration of public affairs either directly or by means of electing their representatives. Paragraph 4 of Article 30 entitles citizens to have access to public posts on equal terms.

Under Article 145(1), judges are elected by the National Council of the Slovak Republic upon the Government’s proposal for a four year period. After the expiry of that period the National Council shall elect judges, upon the Government’s proposal, for an indefinite period.

Paragraph 2 of Article 145 provides that the president and vice ‑ presidents of the Supreme Court shall be elected by the National Council from the judges of the Supreme Court for a five year period. Such posts cannot be held by the same persons for more than two consecutive periods of five years.

Pursuant to Article 147(1), the appointment of a judge may be revoked by the National Council of the Slovak Republic either after his or her final conviction for an intentional criminal offence or when he or she has committed a disciplinary offence which is incompatible with the post of a judge. Paragraph 3 of Article 147 provides that, prior to revoking the appointment of a judge, the National Council shall ask the competent disciplinary court for an opinion.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that his right of access to a court was violated in that the Constitutional Court did not examine the merits of his petition in an appropriate manner.

2. Under Article 10 of the Convention the applicant complains that his right to freedom of expression was violated in that he was to be sanctioned by revocation of his appointment as President of the Supreme Court for the views which he had expressed on the separation of powers and the guarantees of independence of the judiciary in Slovakia.

3. The applicant alleges a violation of Article 14 of the Convention in that, unlike the other judges, his appointment may be revoked without a finding by a court that he committed a criminal or disciplinary offence.

4. Finally, the applicant complains that the Government, without any relevant reason, initiated the revocation of his appointment prior to the expiry of the term for which he had been appointed. He refers to Article 53 of the Convention in conjunction with his constitutional right to have access to public posts and to participate in the administration of public affairs, to the Preamble to the Convention and also to Article 3 of the Statute of the Council of Europe.

THE LAW

1. The applicant complains that his right of access to a court was violated in that the Constitutional Court did not examine the merits of his petition in an appropriate manner. He alleges a violation of Article 6 § 1 of the Convention the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court notes that the proceedings complained of concerned the Government’s proposal that the applicant be removed from the post of President of the Supreme Court.

In accordance with the Court’s practice, disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities fall outside the scope of Article 6 § 1 of the Convention ( Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII).

In the present case the Court observes that the applicant’s post as President of the Supreme Court has involved by its very nature the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State. The proceedings in question did not, therefore, concern the applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention. Since this provision is not applicable, a right of access to court for the applicant cannot be derived therefrom.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant complains that he was to be sanctioned by removal from his office for views which he had expressed on various issues relating to the organisation and independence of the judiciary in Slovakia. He alleges a violation of Article 10 of the Convention which, so far as relevant, provides as follows:

“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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant complains that he has been discriminated against in that, unlike the other judges, his appointment may be revoked without a court’s finding that he had committed a criminal or disciplinary offence. He alleges a violation of Article 14 of the Convention which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that this complaint is closely linked to the applicant’s complaint under Article 10 of the Convention and that it cannot, on the basis of the case file, determine its admissibility. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. Finally, the applicant complains that the Government, without any relevant reason, initiated his removal from office prior to the expiry of the term for which he had been appointed. He refers to Article 53 of the Convention in conjunction with his constitutional right to have access to public posts and to participate in the administration of public affairs, to the Preamble to the Convention and also to Article 3 of the Statute of the Council of Europe.

The Court has examined this complaint but finds, to the extent that it has been substantiated and falls within its competence, that it does not disclose any appearance of a violation of the applicant’s rights under the Convention and its Protocols.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

Decides to adjourn, unanimously, the examination of the applicant’s complaints that his right to freedom of expression was violated and that he was discriminated against;

Declares inadmissible, by a majority, the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President