FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45735/99 by Jozef SK Á LA against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 18 June 2002 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr M. Pellonpää , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 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 Jozef Sk á la, is a Slovakian national, who was born in 1944 and lives in Žilina.

A. The circumstances of the case

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

The applicant was a member of the Corps of National Security (“the police”) from 1964. He was attached to the State Security Service, the then secret police. The National Security Corps Service Act of 1970 entitled members of the police, in case of their dismissal, to several allowances the amount of which depended on the duration of their service in the police. On 31 December 1990 the applicant was dismissed for redundancy pursuant to Section 100 (1) (a) of the National Security Corps Service Act of 1970, as amended. Prior to the applicant’s dismissal, on 10 May 1990, the aforesaid Act was amended in that, pursuant to Section 114a (3), members of the police who were dismissed for redundancy between 9 May 1990 and 31 December 1990 were not entitled to the above allowances.

On 30 May 1995 the applicant filed a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution. He alleged that his fundamental rights were violated in that, as a result of enactment of Section 114a of the National Security Corps Service Act of 1970, he was deprived of allowances to which he had been entitled, in case of dismissal, throughout his previous service in the police. The applicant explained that he had unsuccessfully requested persons who had standing to do so to bring proceedings before the Constitutional Court with a view to having the conformity of the relevant law with the Constitution determined.

On 12 July 1995 the Constitutional Court rejected the petition as being manifestly ill-founded. The decision stated that in the applicant’s case there was no appearance of a violation of rights which the Constitutional Court could examine in proceedings under Article 130 (3) of the Constitution.

In a letter of 26 February 1996 the president of the Constitutional Court informed the applicant, in reply to the latter’s complaint, that the Constitutional Court lacked jurisdiction to examine whether a law was in conformity with the Constitution in proceedings brought under Article 130 (3) of the Constitution.

On 4 September 1996 the applicant claimed, before the Ž ilina District Court, compensation for damage caused by the above amendment to the National Security Corps Service Act of 1970. The applicant requested that the District Court seize the Constitutional Court with the preliminary issue whether or not Section 114a of the National Security Corps Service Act of 1970 was in conformity with the Constitution.

On 5 May 1997 the Ž ilina District Court dismissed the applicant’s request that the proceedings concerning his claim for damages be stayed and that the preliminary question be submitted to the Constitutional Court. The decision stated that the District Court did not share the applicant’s view that Section 114a of the National Security Corps Service Act of 1970, as amended on 10 May 1990, was contrary to the Constitution, or to any law or to any international treaty to which the Slovak Republic was a party as required by Article 109 (1) (b) of the Code of Civil Procedure.

On 30 September 1997 the Ž ilina Regional Court upheld the District Court’s decision of 5 May 1997.

On 19 January 1998 the Ž ilina District Court delivered a judgment by which it dismissed the applicant’s claim for damages. The District Court noted that the applicant did not complain that his former employer had acted unlawfully when it had not paid the allowances in question to the applicant upon the termination of his service in the police. The decision stated that the aim of the applicant’s action was to invalidate Section 114a of the National Security Corps Service Act of 1970. As the applicant had failed to show that the defendant - the Slovak Republic represented by the Ministry of the Interior - had caused damage to him, his action could not be granted.

The applicant appealed and claimed that the question whether Section 114a of the of the National Security Corps Service Act of 1970 was in conformity with the Constitution should first be determined by the Constitutional Court.

On 28 July 1998 the Ž ilina Regional Court upheld the District Court’s judgment of 19 January 1998.

B. Relevant domestic law and practice

Article 130 (3) of the Constitution, as in force at the relevant time, provides that the Constitutional Court may start proceedings upon a petition (“ podnet ”) lodged by legal or natural persons alleging a violation of their rights.

In accordance with the Constitutional Court’s practice (decision I. ÚS 96/93 of 16 November 1993), the Constitutional Court cannot proceed with a petition under Article 130 (3) of the Constitution when the issue to be determined depends on the assessment whether or not a law is in conformity with the Constitution as such proceedings can be brought only by one fifth of the Members of Parliament, by the President of the Slovak Republic, by the Government, by a court (in the context of examination of a case pending before it) or by the General Prosecutor.

Pursuant to Article 109 (1) (b) of the Code of Civil Procedure, a court shall suspend proceedings when it comes to the conclusion that a generally binding legal rule concerning the subject-matter of the case before it is contrary to the Constitution, to a law or to an international treaty by which the Slovak Republic is bound. In such a case the issue concerning the possible conflict of laws shall be submitted for adjudication to the Constitutional Court.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that, as a result of enactment of Section 114a of the National Security Corps Service Act of 1970, he was deprived of allowances to which he was originally entitled.

THE LAW

The applicant complains that his property rights were violated in that, by virtue of an amendment to the National Security Corps Service Act of 1970, he was not paid the allowances to which he was entitled throughout his previous service in the police. He alleges a violation of Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court notes that Section 114a of the National Security Corps Service Act of 1970, to the extent that it was applicable to the applicant’s case, was enacted with effect as from 9 May 1990 to 31 December 1990, and that the applicant was dismissed on the latter date. Since the former Czech and Slovak Federal Republic, to which the Slovak Republic is one of the successor states, ratified the Convention and recognised the right of individual application on 18 March 1992, the Court lacks temporal jurisdiction to examine the facts of the case which are prior to that date.

The applicant’s subsequent submissions to the Constitutional Court and to the Žilina District Court were aimed, in substance, at invalidating the statutory amendment in question. A decision to this effect could only be taken by the Constitutional Court. However, under the domestic law the applicant lacked standing to bring such proceedings directly. As regards the applicant’s request that proceedings to that effect be brought by the general courts, the Court notes that the use of such a remedy was within the discretionary power of the judges dealing with the case.

The applicant’s constitutional petition and his action for damages were not, therefore, effective remedies which the applicant was required to exhaust for the purposes of Article 35 § 1 of the Convention. Accordingly, the Constitutional Court’s decision of 12 July 1995 and the Ž ilina Regional Court’s judgment of 28 July 1998 cannot be regarded as final decisions on the basis of which the Court would have competence ratione temporis to examine the applicant’s complaint.

The Court further recalls that there is no right under the Convention to a remedy which would permit the overriding or invalidation of a law (see, e.g., Szyskiewicz v. Poland (dec.), no. 33576/96, 9 December 1999, unreported).

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President