SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43378/98 by Helena LAMPÁŠOVÁ against Slovakia

The European Court of Human Rights (Second Section) , sitting on 9 November 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr A.B. Baka, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr M. Fischbach, Mr A. Kovler, judges , and Mr E. Fribergh, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 May 1998 and registered on 9 September 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 is a Slovak national, born in 1942 and living in Považská Bystrica .

A. The circumstances of the case [Note1]

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

1. Proceedings concerning the applicant’s trade licence

By a decision of 5 December 1995 the P úchov District Office ( Obvodný úrad ) annulled the applicant’s trade licence. The decision became final on 22 February 1996 and the applicant had to terminate running her business before 8 March 1996.

On 4 June 1996 the Banská Bystrica Regional Court ( Krajský súd ) dismissed the applicant’s request for a review of the administrative decision to annul her trade licence.

On 17 December 1996 a Constitutional Court judge informed the applicant that the Constitutional Court has no jurisdiction to review the Regional Court’s decision of 4 June 1996.

On 24 June 1997 the Trenčín Regional Office ( Krajský úrad ) rejected the applicant’s request for re-opening of the proceedings and on 22 January 1998 the Ministry of the Interior upheld this decision.

On 20 August 1998 the applicant filed an action with the Považská Bystrica District Court ( Okresný súd ) claiming that the annulment of her trade licence had been unlawful. She invoked the Government’s amnesty on minor offences committed prior to 3 March 1998. The case was referred to the Trenčín Regional Court for reasons of jurisdiction. On 29 October 1999 the Regional Court discontinued the proceedings on the ground that the administrative decision complained of had already been reviewed by the Banská Bystrica Regional Court on 4 June 1996 and that the amnesty invoked by the applicant did not apply to decisions on annulment of a trade licence.

On 17 January 2000 the applicant requested the Trenčín Regional Court to re-open the proceedings leading to its decision of 29 October 1999.

2. Criminal proceedings against the applicant

On 25 April 1997 the Považská Bystrica District Court ( Okresný súd ) convicted the applicant of an offence on the ground that she had continued running her business without a trade licence between 18 March 1996 and 25 April 1997. A suspended three months’ prison sentence was imposed on the applicant. The judgment became final on 23 September 1997.

By a decision of 22 June 1998 the District Court pardoned the applicant with reference to Sections I (c) and III of the Prime Minister’s decision on amnesty of 3 March 1998 (see “Relevant domestic law below”).

In the meantime, on 13 April 1998, new criminal proceedings were brought against the applicant as she continued running her business without a trade licence.

On 28 April 1998 the applicant was examined by the police. She refused to sign the report.

The applicant informed the police investigator in advance that she could not come to a further examination as she was ill.

On 5 June 1998 two policemen in plain clothes apprehended the applicant when she was leaving a hospital and brought her forcibly to the District Office for Investigations in Pova žská Bystrica. The applicant was distressed and it took her some forty minutes to recover from the shock. The police investigator threatened that she would be placed in a cell if she refused to sign the record of the previous examination. The applicant refused to sign the document. The investigator then dragged the applicant by hand to the staircase and told her to leave.

On the same day the applicant was examined by a doctor. He found that her arms, left hand and possibly also the upper part of her spine were contused. The applicant was treated as an out-patient until 15 July 1998.

By a letter sent on 8 June 1998 the applicant complained to the Presidium of the Police Corps that the police had ill-treated her on 5 June 1998. She enclosed a copy of the medical report and complained that she had suffered a shock, that she had pains in the upper part of her body and that her glasses had been damaged.

On 10 July 1998 the Považská Bystrica District Court ordered that the applicant’s mental health should be examined by experts with a view to determining whether she was capable of recognising the unlawfulness of her actions and of controlling her behaviour.

On 13 July 1998 the police investigator appointed two experts with a view to examining the applicant’s mental health. On 21 July 1998 the applicant lodged a complaint against this decision.

On 24 July 1998 the experts summoned the applicant to an out-patient examination. On 3 August 1998 the applicant replied that the District Court’s decision of 10 July 1998 had not yet been served on her and that she would celebrate her name day on 18 August when the examination was scheduled.

On 5 August 1998 the applicant requested the District Court to provide her with the decision of 10 July 1998 on the examination of her mental health. Her request was not granted and the applicant was not allowed to consult the case file.

On 13 September 1998 the experts summoned the applicant to an out-patient examination scheduled for 25 September 1998.

On 21 September 1998 the applicant informed the experts that she would not appear. She stated that there existed no relevant reason for her examination, that the District Court had failed to act in accordance with the relevant provisions of the Code of Criminal Procedure and that she had another appointment with doctors on 25 September 1998.

On 12 October 1998 the applicant again informed the experts that she would not appear for examination scheduled for 14 October 1998. She explained that she had lodged a complaint against the District Court’s decision of 10 July 1998.

On 14 October 1998 in the morning the applicant was apprehended by the police on her way to a shop. The police did not allow the applicant to take breakfast and medicaments prescribed by doctors. She was forcibly brought to the mental health centre in B ánovce nad Bebravou where she was examined as an out-patient . After the examination the police drew the applicant back and asked her to get out of their car some fifteen kilometres from her place.

On 7 May 1999 the Považská Bystrica District Prosecutor filed an indictment against the applicant.

On 30 November 1999 the Považská Bystrica District Court convicted the applicant of an offence on the ground that she had run her business without a licence between 24 September 1997 and 31 December 1998. A conditional five months’ prison sentence was imposed. The applicant appealed on 16 December 1999.

On 27 June 2000 the Trenčín Regional Court quashed the first instance judgment and ordered the District Court to adjudicate on the case anew.

On 14 September 2000 the Považská Bystrica District Court convicted the applicant of an offence on the ground that she had run her business without a licence between 24 September 1997 and 13 April 1998. The applicant was conditionally sentenced to three months’ imprisonment.

On 2 October 2000 the applicant appealed.

B. Relevant domestic law

Under Section 90 (1) of the Code of Criminal Procedure, an accused who was duly summoned but failed to appear without sufficient reasons may be brought to the examination provided that he or she was informed in the summons of the possible consequences of his or her failure to appear.

According to Section 167 of the Code of Criminal Procedure, the accused has a right, at any time in the course of the investigation, to request the rectification of defects in the investigator’s procedure. Such request, to which no statute of limitation applies, must be submitted immediately to the public prosecutor who is required to deal with it without delay, and to inform the accused about the finding of the review.

Under Section 174 (1) of the Code of Criminal Procedure, the public prosecutor is called upon to supervise the respect for law at the preliminary stage of criminal proceedings. Section 174 (2) (e) provides, inter alia , that the public prosecutor is authorised to quash unlawful or unjustified decisions and measures taken by the police investigators.

By a decision of 3 March 1998 the Prime Minister granted amnesty on certain offences. Under Sections I (c) and III of the decision, sentences imposing a prison term the enforcement of which was conditionally suspended are pardoned and the perpetrators are to be considered as if they were not convicted.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that she was ill-treated by the police on 5 June 1998 and on 14 October 1998 and that the sentence imposed on her on 25 April 1997 was degrading.

2. The applicant complains that on 5 June 1998 the police deprived her unlawfully of her liberty. She further complains that the forcible examination of her mental health on 14 October 1998 was unlawful as the Pova žská Bystrica District Court’s order of 10 July 1998 had not been served on her. She alleges a violation of Article 5 § 1 of the Convention.

3. Under Article 6 § 1 of the Convention the applicant complains that the criminal proceedings against her and the proceedings concerning the annulment of her trade licence  were unfair.

4. The applicant alleges a violation of Article 4 § 1 of Protocol No. 7 in that she has been again prosecuted for the same offence for which she was convicted by the Pova žská Bystrica District Court on 25 April 1997.

5. Finally, the applicant complains under Article 13 of the Convention about the absence of an effective remedy in respect of the alleged violations of her Convention rights.

THE LAW

1. The applicant complains that she was ill-treated by the police on 5 June 1998 and on 14 October 1998 and that the sentence imposed on her on 25 April 1997 was degrading. She alleges a violation of Article 3 of the Convention.

a) As regards the alleged ill-treatment to which the applicant was subjected by the police on 5 June 1998, the Court considers that it cannot, on the basis of the 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.

b) As to the applicant’s complaint that she was forcibly brought to a medical examination on 14 October 1998, and even assuming that domestic remedies were exhausted, the Court finds that the treatment complained of did not attain a degree of gravity sufficient to conclude that the applicant’s right under Article 3 was thereby infringed.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

c) The Court notes that on 22 June 1998 the Pova žská Bystrica District Court pardoned the applicant the sentence imposed on 25 April 1997 with reference to the Prime Minister’s amnesty of 3 March 1998. In accordance with this decision, the applicant has been considered in Slovak law not to have been convicted of the offence in question. Even assuming that the applicant can nevertheless claim to be a victim within the meaning of Article 34 of the Convention in this respect, the Court considers that the sentence imposed did not contravene the applicant’s rights under Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant complains that on 5 June 1998 the police deprived her unlawfully of her liberty. She further complains that the forcible examination of her mental health on 14 October 1998 was unlawful as the Pova žská Bystrica District Court’s order of 10 July 1998 had not been served on her. She alleges a violation of Article 5 § 1 of the Convention.

The Court notes that it was open to the applicant to request a review and, as the case might be, also a rectification of defects in the investigator’s procedures complained of. As the applicant did not avail herself of this possibility, she has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

3. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against her and the proceedings concerning the annulment of her trade licence  were unfair.

a) The Court notes that in the proceedings concerning the annulment of the applicant’s trade licence the final decision within the meaning of Article 35 § 1 of the Convention was delivered by the the Banská Bystrica Regional Court on 4 June 1996. Since the application was introduced on 25 May 1998, the applicant failed to respect the six months’ time-limit laid down in Article 35 § 1 of the Convention. In the Court’s view, the subsequent remedies tried by the applicant are not effective remedies which should be exhausted and which could be taken into account for the purposes of Article 35 § 1 of the Convention.

b) As to the complaint about the first set of criminal proceedings against the applicant, the final decision was delivered by the Pova žská Bystrica District Court on 25 April 1997. As the application was introduced on 25 May 1998, the applicant did not respect the six months’ time-limit laid down in Article 35 § 1 of the Convention.

c) The Court notes that the second set of criminal proceedings brought on 13 April 1998 is still pending. The applicant’s complaints about unfairness of these proceedings are therefore premature.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

4. The applicant complains that she has been again prosecuted for the same offence for which she was convicted by the District Court on 25 April 1997. She alleges a violation of Article 4 § 1 of Protocol No. 7 which provides that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

The Court notes that in the first set of proceedings leading to the Pova žská Bystrica District Court’s judgment of 25 April 1997 the applicant was convicted for an offence on the ground that she had run her business without a licence between 18 March 1996 and 25 April 1997. In the second set of proceedings brought on 13 April 1998 the applicant has been charged with an offence on the ground that she has ran her business without a licence from 24 September 1997 to 31 December 1998. Accordingly, the second set of criminal proceedings against the applicant concerns an offence which is different from that for which the Pova žská Bystrica District Court convicted her on 25 April 1997.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

5. The applicant also alleges a violation of Article 13 of the Convention in that she had no effective remedy at her disposal as regards the alleged breaches of her substantive rights under the Convention and Protocol No. 7.

a) To the extent that the applicant alleges a violation of Article 13 in conjunction with her complaint under Article 3 about the alleged ill-treatment to which she was subjected by the police on 5 June 1998, the Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application. It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b) The Court declared inadmissible the applicant’s remaining complaints under the  substantive provisions of the Convention and its protocols. These grievances cannot, therefore, be regarded as “arguable”. Accordingly, they do not attract the guarantees set out in Article 13 of the Convention (see Powell and Rayner v. the United Kingdom, no. 9310/81, Series A no. 172, § 31).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints under Articles 3 and 13 of the Convention about her alleged ill-treatment on 5 June 1998 and about the absence of an effective remedy in this respect;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.