FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35640/97 by Alexej LE Å NÍK against Slovakia

The European Court of Human Rights, sitting on 8 January 2002 as a Chamber composed of

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

Having regard to the above application introduced with the European Commission of Human Rights on 10 March 1997 and registered on 16 April 1997,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Alexej Le šní k, is a Slovakian national , born in 1940 and living in Košice . He is represented by Mr J. Hrubala, a lawyer practising in B anská Bystrica . The respon dent Government are represented by Mr P. Vr šanský , their Agent.

A. The circumstances of the case

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

On 2 December 1991 the applicant requested the Ko š ice City Prosecutor’s Office to bring criminal proceedings against H., a businessman from the Czech Republic whom he suspected of having committed a fraud. The request was examined by different authorities but no criminal proceedings were brought.

On 4 December 1992 the applicant complained to the police that two unknown men had left a message at the entry of his flat according to which they would break his hands should he not “abstain from writing”. On 13 April 1993 the applicant complained to the police that a window in his flat had been shot through. He considered that he was being harassed as he had written articles about several former members of the communist party. Subsequently the applicant was informed that the police could not identify the perpetrators.

On 5 April 1993 the applicant complained to the head of the Ko Å¡ ice Telecommunication Administration that, following a change of the central switchboard, phone conversations in his agency were frequently interrupted. The applicant pointed out that there was a noise on the phone prior to the interruption of a call which was similar to that which had formerly occurred when phone calls had been tapped by the communist secret police. He requested that the malfunction should be remedied.

On 10 June 1993 a police investigator brought criminal proceedings against the applicant on the ground that he was suspected of having stolen goods from H. The decision was based on a written communication by the District Prosecutor in Semily , Czech Republic.

On 1 November 1993 the applicant asked the Ko Å¡ ice Regional Prosecutor that the criminal proceedings against him be discontinued. In his letter the applicant complained, without providing further details, that the police investigator dealing with his case had obtained information on him as a result of unlawful tapping of his phone. He requested that criminal proceedings be brought against an unknown person responsible for the tapping.

On 6 December 1993 the applicant addressed a letter to P., the Ko Å¡ ice I District Prosecutor. The letter contained, inter alia , the following statements:

“Since you have not succeeded, comrade prosecutor, to attain your aims in one area, you intensively continue, in accordance with the practice of the [former] State Security, to fabricate another case [against the applicant] as you learned within the framework of the so-called infallible socialist law. On this occasion I can assure you, however, that I did not bend my head in front of the high representatives of the former political system and, in particular, the [former] State Security agents who paid at least as much attention to my person as you do now. I do not today intend to let myself be intimidated, in particular not by individuals as yourself, a person with a dubious past, not to speak of [your] other qualities...

It is not only my earlier experience of managing a detective agency which indicates that it is difficult to speak about objectivity, professionalism and respect for law with regard to you. I would therefore like to remind you on this occasion that the law is binding also for you despite the fact that you probably consider yourself ... to be an almighty lord of the Tatra [mountains] and the V á h [river] and, as such, beyond the reach of anybody as you are, for the time being, under the protective hand of comrade [M.]. Abuses of law may have very unpleasant consequences for you. For the time being, I will only recall some of them which do not need any comments.”

In the letter the applicant further stated that the addressee was responsible for the dismissal of the applicant’s criminal complaint against H., for the introduction of criminal proceedings against the applicant in 1993, and that he had unlawfully ordered the tapping of the applicant’s telephone.

P. submitted the letter to his hierarchical superior, the Ko š ice Regional Prosecutor. In a letter of 17 March 1994 the latter informed the applicant that it had not been established that P. had given an order to monitor the applicant’s telephone or that he had otherwise acted in an unlawful manner.

In the meantime, on 7 March 1994, the applicant complained to the General Prosecutor that P. had committed an offence in that he had abused his power. The letter read, inter alia , as follows:

“[P.] accepted the request of [the lawyer of H.] ... not to bring criminal proceedings against H. in Slovakia notwithstanding that sufficient evidence was available to that effect...  Of course, money which H. had paid in order to cover up his fraudulent actions played a certain role in this matter. It would therefore appear appropriate to examine whether [an offence of bribery was not committed] in this context...

Following a ... threat ... by ... an investigator of the Ko š ice I Office for Investigation in the context of the case of H. ... I went to the aforesaid office on 10 June 1993.  After I had rejected an ‘agreement’ which had been proposed to me, [the investigator], a former State Security agent, accused me of having stolen [the property of] H. in 1991.  Thus [P.] has not been willing to bring an accusation against H. since 1991 but arranged, through a police investigator who can easily be blackmailed, for accusations to be brought against me with a view to taking a revenge for the justified complaints I had lodged against him. [P.] did so contrary to [the relevant provisions of the Code of Criminal Procedure] because up to now ... there is no evidence before [the competent authorities] which would permit to conclude with sufficient certainty that I stole anything from H. Subsequently I realised that my phone, which has also been used by my private detective agency, had been tapped contrary to Section 88 of the Code of Criminal Procedure.”

Upon a petition by the public prosecutor concerned the General Prosecutor’s Office agreed that criminal proceedings be brought against the applicant on the ground that he had insulted a public prosecutor. The case was transferred to a public prosecutor in Liptovsk ý Mikuláš . On 2 June 1994 the latter accused the applicant of insulting a public official in his above letters of 6 December 1993 and 7 March 1994.

In a letter of 5 September 1994 addressed to the Ko š ice Regional Prosecutor’s Office the applicant expressed the view that the purpose of the harassment to which he had been subjected in 1992 and 1993 had been to make him withdraw his criminal complaint against H. The applicant requested that an investigation be instituted.

In September 1994 the newspaper Necenzurované noviny published an article describing in detail the applicant’s case. It was based on information furnished by the applicant and contained quotations from the applicant’s above letters.

On 7 November 1994 the applicant stated before the prosecutor in Liptovsk ý Mikuláš that he had aimed to criticize P. for his incorrect actions and that he had not intended to insult him. On 8 November 1994 the Košice Regional Prosecutor submitted a document to the District Prosecutor’s Office in Liptovsk ý Mikuláš indicating, with reference to the relevant register, that the Košice 1 District Prosecutor had not ordered the tapping of the applicant’s telephone between 1992 and 1994 .

On 11 November 1994 the applicant submitted his comments on the evidence obtained in the case. He alleged that all witnesses heard had been unreliable because of their activities during the communist regime.

On 23 November 1994 the Liptovsk ý Mikuláš District Prosecutor indicted the applicant on the charge of insulting a public official before the Liptovsk ý Mikuláš District Court ( Okresný súd ). On 25 November 1994 the latter transferred the case to the Košice 1 District Court for reasons of jurisdiction. As the public prosecutor affected by the applicant’s statements was responsible for the same district, the Ko šice Regional Court ( Krajský súd ), on 9 March 1995, transferred the case to the Trebi šov District Court pursuant to Section 25 of the Code of Criminal Procedure.

On 25 April 1995 the Trebi Å¡ov District Court issued a penal order in which it convicted the applicant of attacking a public official on the ground that, in his above letters of 6 December 1993 and 7 March 1994, he had insulted a public prosecutor. The court sentenced the applicant to four months’ imprisonment suspended for a probationary period of one year.

The applicant challenged the order. The case was assigned to another judge and a hearing before the Trebi Å¡ov District Court was scheduled for 8 February 1996.

Prior to the hearing the judge received two letters from an association of persons persecuted by the communist regime of which the applicant was a member. In the documents the judge was warned, with reference to his former activities within the communist party, that he should reconsider his involvement in the applicant’s case. On 29 December 1995 the applicant sent copies of two newspaper articles to the judge which described the applicant’s case and requested that they be included in the case file. In one of the articles the author expressed doubts about the independence of the judge with reference to the fact that he had earlier presided over one of the communist party branch organisations in Trebi šov.

The judge requested that he should be excluded from dealing with the case and that it should be transferred to a different court pursuant to Section 25 of the Code of Criminal Procedure.

On 7 March 1996 the Ko š ice Regional Court ( Krajsk ý súd ) dismissed the judge’s request. In its decision the Regional Court pointed out that the documents submitted by the above association constituted unlawful interference with judicial proceedings the purpose of which was to harass the judge and to exercise psychological pressure on him. The Regional Court further noted that the applicant had not challenged the judge in question.

On 25 June 1996 the judge in question of the Trebi šov District Court convicted the applicant, pursuant to Section 156 (3) of the Criminal Code, of insulting a public official and sentenced him to four months’ imprisonment suspended for a probationary period of one year. The judgment stated, in particular, that in his letters the applicant had alleged that the public prosecutor had deliberately failed to act in a proper way as regards the applicant’s request of 1991 for criminal proceedings to be brought against H., that the public prosecutor had done so at the request of the lawyer representing H., and that H. had paid a sum of money for this purpose. The District Court also noted that the applicant had accused P. of unwillingness to grant the applicant’s criminal complaint, of having ordered criminal proceedings to be brought against the applicant and that the latter’s phone had been tapped contrary to the law.

The judgment further stated that the applicant had not shown that the public prosecutor concerned had failed to act in accordance with the law. The court therefore concluded that the applicant’s submissions were defamatory and grossly offensive.

The District Court did not accept the applicant’s defence according to which the sole purpose of his letters had been to have his request for criminal proceedings to be brought against H. dealt with in an appropriate manner. The court noted that beside the two letters in question the applicant had sent a considerable number of other complaints concerning the same issue which, however, had contained no defamatory or offensive remarks. Both the Ko š ice Regional Prosecutor’s Office and the General Prosecutor’s Office had dealt with the applicant’s complaints and had dismissed them as being unsubstantiated.

The applicant appealed, both alone and through his lawyer. He alleged that the purpose of his submissions had been to prevent further delays in the proceedings concerning his criminal complaint of 1991 and not to offend P. The applicant further claimed that his statements in question were not offensive and did not constitute an offence.

On 28 June 1996 the applicant complained to the Minister of Justice that the judge who had sentenced him at first instance had lacked independence and impartiality because he had formerly played an active role in the communist party. The applicant requested that his case should be examined by a court complying with the aforesaid requirements.

On 24 September 1996 three judges of the Ko š ice Regional Court dismissed the applicant’s appeal. The Regional Court took further evidence in that it heard the applicant and asked him to substantiate his allegations. The Regional Court examined all aspects of the case and had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Section 254 (1) of the Code of Criminal Procedure.

The Regional Court found that by the statements made in his letters of 6 December 1993 and 7 March 1994 respectively the applicant had grossly insulted a public prosecutor without justification. In particular, the judgment stated that the applicant had failed to substantiate his allegation that H. had paid a sum of money with a view to preventing criminal proceedings from being brought against him and recalled that the General Prosecutor’s Office had not established that P. had acted unlawfully in this or any other respect.

The Regional Court further considered as defamatory and grossly offensive the applicant’s statements according to which the public prosecutor had proceeded in accordance with the practice of the former State Security agency, had a dubious past, not to speak of his other qualities, and that he possibly considered himself to be an almighty lord of the Tatra mountains and the V á h river who was beyond the reach of anybody.

In the Regional Court’s view, the applicant had failed to show that he had a justified reason to use such statements. The court did not accept the applicant’s argument according to which he had doubts about the past and the qualities of the public prosecutor because the latter had studied socialist law and because he had failed to take appropriate action on the applicant’s criminal complaint of 1991 and had initiated criminal proceedings against the applicant.

In its judgment the Regional Court pointed out that the applicant had not been hindered in seeking redress before the competent authorities as regards the actions of P. which he considered inappropriate or unlawful. It held, however, that by using defamatory and offensive remarks in his submissions the applicant had committed an attack against a public official within the meaning of Section 156 (3) of the Criminal Code. The Regional Court upheld the sentence which the District Court had imposed on the applicant.

On 28 October 1996 the Ko š ice IV District Office ( Okresný úrad ) annulled the applicant’s trade licence under which he had been authorised, inter alia , to run a detective agency on the ground that he had been convicted of an offence. On 12 December 1996 the Ko š ice Regional Office ( Krajsk ý úrad ) dismissed the applicant’s appeal against this decision.

On 4 June 1997 the Ko š ice Regional Court quashed the administrative decisions concerning the annulment of the applicant’s trade licence and sent the case back to the Ko š ice Regional Office. In its judgment the Regional Court noted that both administrative authorities deciding at lower instances had failed to establish any relevant legal grounds for their decisions.

On 18 November 1997 the Trebi Å¡ov District Court issued a decision noting that the applicant had not committed any offence during the probationary period and stating that he was to be considered as if he had not been convicted.

As from 1 January 1998 the relevant law was amended in that persons wishing to run private security agencies were required to obtain the approval of the headquarters of the Police Corps. The applicant did not ask for such an approval and he returned his trade licence of 7 January 1993, under which he had been allowed to run a detective agency, to the Košice IV District Office on 3 June 1998. In the meantime, on 18 February 1998, he registered with the competent authorities as running a different business. The applicant attached a certificate that his criminal record was clear and he received a new trade licence on 6 April 1998.

B. Relevant domestic law and practice

Constitution

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

The Criminal Code

Section 156 (3) provides that a person who utters grossly offensive or defamatory remarks in respect of a public official relating to the exercise of the powers by such an official shall be punished by imprisonment up to one year or by a fine.

The Code of Criminal Procedure

Section 25 provides that a case may be transferred from a court to which it falls to be examined to another court of the same nature and level for serious reasons. Such a decision is to be taken by a court which is superior to both courts concerned.

Under established practice, issues susceptible of undermining the confidence of citizens in an impartial, objective and fair decision taking of a court are to be considered as “serious reasons” for the purposes of Section 25 of the Code of Criminal Procedure.

Section 30 (1) provides, inter alia , for the exclusion of a judge whose impartiality may give rise to doubts either because of his relation to the subject-matter of the case, to persons directly involved, their lawyers, legal representatives and trustees, or because of his or her relation to other authorities acting in the same proceedings.

Pursuant to Section 31 (1) and (2), a higher court chamber shall decide about the exclusion of a lower court’s judge, either on the basis of a notification by the judge concerned or upon an objection by any of the parties.

Section 31 (3) provides that objections to impartiality lodged by a party which are based on the same reasons as an earlier objection which has already been decided upon shall not be examined.

Under Section 254 (1), unless there are formal shortcomings in an appeal, the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment. In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal.

The State Liability Act of 1969

Section 1 of Act No. 58/1969 on Liability for Damage Caused by a State Organ’s Decision or by an Erroneous Official Act of 1969 ( Zákon o zodpovednosti za Å¡ kodu spôsobenú rozhodnutím orgánu Å¡tátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by public authorities.

Section 4 (1) provides that a claim for compensation may only be brought after the competent authority declared unlawful and quashed the final decision by which the damage was caused.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that his right to a fair trial by an independent and impartial tribunal was violated in the proceedings leading to his conviction. In particular, he alleges that his conviction was arbitrary as the courts had disregarded the facts of his case and had applied the law erroneously, and that the judge of the Trebišov District Court who delivered the judgment of 25 June 1996 was biased because he had formerly played an active role within the communist party.

2. The applicant further alleges a violation of Article 8 of the Convention in that his trade licence was unlawfully withdrawn from him and that his telephone was unlawfully tapped.

3. Under Article 10 of the Convention the applicant complains that his right to freedom of expression has been violated in that he was convicted for having criticised the unlawful actions of a public prosecutor.

THE LAW

1. The applicant complains that the proceedings leading to his conviction were not fair and that the Trebi Å¡ov District Court judge lacked independence and impartiality. He alleges a violation of Article 6 of the Convention which provides, so far as relevant as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

a) To the extent that the applicant complains that the criminal charges against him have not been determined by an impartial and independent tribunal, the Government object that the applicant did not exhaust domestic remedies as he failed to challenge the Trebi šov District Court judge in accordance with Section 30 of the Code of Criminal Procedure. As to the merits, the Government maintain that the applicant’s right to a hearing by an independent and impartial tribunal was respected.

The applicant refers to Section 31 (3) of the Code of Criminal Procedure and submits that he was prevented from challenging the District Court judge as the Regional Court had already examined, in procedure pursuant to Section 25 of the Criminal Procedure, the reasons for which he considered the judge to be biased. As to the merits, the applicant contends that he had earlier been persecuted by the communist regime for his political opinions and that he could not consider the Trebi Å¡ov District Court judge to be impartial as the latter had exercised an elected post within the communist party. Furthermore, the criminal proceedings against him concerned an offence with a political background, namely his negative statements about members of that party.

The Court does not consider it necessary to determine whether the requirement as to the exhaustion of domestic remedies has been complied with as this part of the application is, in any event, inadmissible for the following reasons.

In the present case the question arises whether the Trebi šov District Court judge was impartial from an objective viewpoint, i.e. whether he offered guarantees sufficient to exclude any legitimate doubt as to his impartiality (see, among other references, the Incal v. Turkey judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 65). No separate issue arises as to the alleged independence of the judges involved.

The applicant appealed against the Trebi šov District Court’s judgment of 25 June 1996 delivered by the judge whom he considered biased. As a result, the criminal charges were determined by three judges of the Ko šice Regional Court. The appellate court took further evidence in that it heard the applicant. It examined all aspects of the case and had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Section 254 (1) of the Code of Criminal Procedure. The applicant did not challenge the appellate court judges and there is no indication that they lacked impartiality or independence.

In these circumstances, the Court finds that the shortcomings complained of in the proceedings at first instance, if any, were remedied in the appellate proceedings in which the first instance judgment was subject to control by a judicial body that had full jurisdiction in the case and provided the guarantees of an impartial and independent tribunal within the meaning of Article 6 (see, mutatis mutandis , the De Haan v. the Netherlands judgment of 26 August 1997, Reports 1997-IV, § 52, with further references).

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

b) To the extent that the applicant complains that the proceedings leading to his conviction were not fair in that the courts disregarded the facts of his case, applied the law erroneously and decided arbitrarily, the Court recalls that , in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. The Court is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. In particular, the Court has no general jurisdiction to consider whether domestic courts have appraised the evidence correctly or incorrectly; its task is to establish whether evidence produced for or against the accused was presented in such a way as to ensure a fair trial (see, e.g. the Garcia Ruiz v. Spain judgment of 21 January 1999, Reports 1999-1, § 28 and the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68).

In the present case, the applicant was assisted by a lawyer, and it does not appear from the documents before the Court that he was deprived of the opportunity to challenge the evidence against him in an adversarial procedure or that the proceedings were otherwise unfair. Furthermore, the domestic courts gave detailed reasons for their decisions which, in the Court’s view, do not appear arbitrary.

In these circumstances, the Court considers that the proceedings leading to the applicant’s conviction were not contrary to the requirement of a fair hearing within the meaning of Article 6 § 1 of the Convention.

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

2. The applicant complains that his telephone was unlawfully monitored and that his trade licence was unlawfully annulled. He alleges a violation of Article 8 of the Convention which provides 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.”

a) The applicant complains that his telephone was unlawfully monitored. He submits that the Slovakian authorities have not offered any proof that this was not the case. He alleges, with reference to the Court’s judgments in the cases of Klass and Others v. Germany and Malone v. the United Kingdom, that he can claim to be a victim of a violation of his rights under Article 8 in this context.

The Court notes that it is for an applicant complaining of an interference with his or her rights under the Convention to provide sufficient prima facie evidence to this effect.

In the proceedings before the Slovakian authorities the applicant complained that following a change of the central switchboard, phone conversations in his agency were frequently interrupted. The applicant pointed out that there was a noise on the phone prior to the interruption of a call which was similar to that which occurred in the period when phone calls had been tapped by the communist secret police. He repeatedly complained that a public prosecutor was responsible for unlawful tapping of his telephone.

The documents submitted indicate that the applicant’s complaints in this respect were dealt with by both the Ko š ice Regional Prosecutor’s Office and the General Prosecutor’s Office. These allegations were also addressed by courts at two levels of jurisdiction in the context of the criminal proceedings against the applicant. However, the domestic authorities found the applicant’s complaints unsubstantiated, and the Court has before it no information indicating that the applicant’s telephone was actually placed under surveillance or that any particular information was obtained as a result of its monitoring. Thus the applicant has failed to provide sufficient evidence which would permit the conclusion that telephone conversations made by him in his office were tapped.

In the absence of any specific submissions by the applicant to the effect that the relevant law or existing practice of themselves violate his rights under Article 8 of the Convention, the Court finds that it is not required to examine the interception of telephone conversations in general.

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

b) To the extent that the applicant complains about the decision to annul his trade licence, the Court notes that o n 4 June 1997 the Ko Å¡ ice Regional Court quashed the administrative decisions complained of and sent the case back to the Ko Å¡ ice Regional Office.

Subsequently no further decisions were delivered since the relevant law was amended, as from 1 January 1998, in that persons wishing to run private security agencies were required to obtain the approval by the headquarters of the Police Corps. The applicant did not ask for such an approval and he returned his trade licence of 7 January 1993, under which he had been allowed to run a detective agency, to the Košice IV District Office on 3 June 1998. In the meantime, on 18 February 1998, he registered with the competent authorities as running a different business. He received a new trade licence on 6 April 1998.

The applicant has not shown that he actually suffered any damage as a result of the decisions complained of and, in any event, it was open to him to claim compensation in this respect under the State Liability Act of 1969.

The Court therefore finds that the applicant can no longer be considered as a victim within the meaning of Article 34 of the Convention.

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

3. Finally, the applicant complains about a violation of his right to freedom of expression in that he was convicted for having criticised the unlawful actions of a public prosecutor. He alleges a violation of Article 10 of the Convention which provides, so far as relevant, 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, ... for the protection of the reputation or rights of others, ...”

The Government object that the applicant failed to exhaust domestic remedies as he did not lodge a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution.

The applicant disagrees.

The Court has previously found that a petition pursuant to Article 130 (3) of the Constitution is not capable of providing a direct protection of a petitioner’s rights guaranteed by Article 10 § 1 of the Convention as required by the Court’s case-law (see Mar ônek v. Slovakia (dec.), no. 32686/96, 27 April 2000 and Feldek v. Slovakia (dec.), no. 29032/95, 15 June 2000, both unpublished). The Court sees no reasons for reaching a different conclusion in the present case. Accordingly, the Government’s objection relating to non-exhaustion of domestic remedies cannot be upheld.

As to the merits, the Government admit that the applicant’s conviction for the above statements amounted to an interference with his right to freedom of expression. They maintain that the interference was in accordance with the relevant provisions of the Criminal Code, that it pursued the legitimate aim of protecting the rights and reputation of the public prosecutor concerned and that it was necessary in a democratic society within the meaning of paragraph 2 of Article 10.

The applicant contends that the Criminal Code and the Code of Criminal Procedure were enacted in 1961 and that, despite several amendments, their respective provisions have maintained their repressive character the purpose of which has been to harass citizens. For this reason, his conviction cannot be regarded as lawful. The applicant further maintains that the interference in question did not pursue any legitimate aim as its main purpose was to justify the failure, by the public prosecutor concerned, to proceed with the applicant’s criminal complaint against another person. Finally, the applicant submits that the interference was not necessary in a democratic society. He points out, in particular, that his statements were value judgments which were not susceptible of proof, that their aim was not to offend the public official concerned but to criticise the latter’s actions which he considered unlawful, and that he neither published his letters nor disseminated them to a wider audience.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 10 of the Convention that his right to freedom of expression was violated;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza              Registrar              President