SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32686/96 by Vladimír MARÔNEK against the Slovak Republic

The European Court of Human Rights ( Second Section ), sitting on 27 April 2000 as a Chamber composed of

Mr C.L. Rozakis, President ,

Mr M. Fischbach,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr A.B. Baka,

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 15 July 1996 and registered on 21 August 1996,

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 is a Slovak national, born in 1964 and living in Myjava .

A. The circumstances of the case

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

The dispute concerning the use of the apartment allocated to the applicant in 1991

On 27 June 1991 the mayor of Bratislava allocated a single room flat to the applicant (“the flat”). It was at the disposal of the State owned company Tesla in which the applicant was then employed. The mayor’s decision entitled the applicant to have a contract on the use of the flat concluded. The applicant could not conclude the contract and move into the flat as it was occupied by A.

In fact, on 4 March 1991 the Bratislava Star é mesto Local Office ( Miestny úrad )  informed A., in reply to his request, that he could not have the right to use the flat transferred to him as it was at the disposal of the Tesla company. The letter further stated that A. was not under an obligation to move out of the flat until he was provided with alternative accommodation.

On 18 March 1991 a representative of the Bratislava I Housing Administration ( Bytový podnik ) drew up a record indicating that the deceased user had been the only person living in the flat. On the same day the Bratislava I Housing Administration informed the Housing Department of the Bratislava Staré mesto Local Office that after the decease of the former occupant the flat was used, without justification, by A. and that the latter was registered as living in his parents’ apartment situated in the same house.

In a letter of 5 June 1991 a social care authority informed the housing department of the Bratislava I Local Office that between 1 June 1984 and 11 June 1990 A. had taken care of the user of the flat for remuneration from public funds. On 26 June 1990 the user of the flat had been placed in a social institution. The letter stated that no personal assets of A. had been spotted in the flat during the last visits of the former user by officials of the authority.

On 19 June 1991 the Tesla company brought an action before the Bratislava 1 District Court ( Obvodný súd ) claiming that A. should be ordered to move out. The action stated that during a random control of the flat on 14 March 1991 it had been discovered that A., without any legal ground, had forcibly entered the flat, that he had changed the lock and prevented the representatives of Tesla and of the Housing Administration Bratislava I from entering it. Reference was made to the Housing Administration’s letter of 18 March 1991.

Tesla further claimed that A. lived with his parents whose apartment was next door to the flat in question and that since both flats had the same address, he had mislead the Bratislava Local Office when claiming that the right of use of the flat in question be transferred to him.

Tesla submitted documentary evidence that A. had his permanent address in the flat of his parents and that he had not lived in the flat in question. It argued that A. had no right to alternative accommodation.

At a later date the applicant joined the proceedings and claimed his right to use the flat. A. counter-claimed that he was entitled to have the right to use the flat transferred to him.

Due to new legislation enacted on 1 January 1992 the flat ceased to be at the disposal of Tesla and the latter lost standing in the proceedings.

On 22 January 1992 the Western Slovakia Power Works informed the applicant that there had been no consumption of electricity in the flat as from the beginning of 1991.

On 29 September 1993 the applicant unsuccessfully requested the Bratislava Staré mesto Local Office that a contract on the use of the apartment be concluded with him.

On 7 September 1994 the Bratislava I District Court discontinued the proceedings concerning the action brought by the Tesla company and the counter-action filed by A. The court noted that in the course of the proceedings the ownership rights in respect of the flat had been transferred, ex lege , to the Bratislava Star é mesto municipality and that both the latter and A. had withdrawn their actions.

On 26 March 1996 the Bratislava I District Court granted the action of A. filed on 28 May 1993 and concerning his right to use the flat. The court held that A. had lived with the former user of the flat until her death on 2 July 1990. It concluded that A. had acquired the right to use the flat pursuant to Section 179 (1) of the Civil Code, as in force at the relevant period (see “Relevant domestic law and practice” below).

Defamation proceedings against the applicant

On 8 November 1991 the daily Smena published a full page article on the applicant’s case written by a journalist. It was entitled “Absurd? Absurd!” and contained, inter alia , a description of the applicant’s unsuccessful attempt to enter the flat on 29 October 1991 and the verbal exchanges between him, on the one hand, and A. and his wife H., a public prosecutor, on the other hand. The article stated that the flat allocated to the applicant had been unlawfully occupied by A. and criticised the fact that the applicant had no possibility of using it.

On 17 December 1991 the Bratislava City Prosecutor brought disciplinary proceedings against H. on the ground that during the applicant’s attempt to enter the flat on 29 October 1991 she had behaved in an indecent manner.

On 5 February 1992 the applicant addressed an open letter to the Prime Minister. It was entitled “For How Long?” and its relevant parts read as follows:

(Translation)

“I have a flat and I do not have it. I have no roof over my head (I sleep at nights with different friends) because my flat, a single room State owned apartment which is at the disposal of the Tesla company was unlawfully occupied by [A.]. I point out that I can prove all information set out in this letter. The circumstances of the case were published in more detail in Smena on 8 November 1991, but since then little has changed.

The flat is situated ... opposite to the flat of [the father of A.] with whom his son has his permanent address at present. The flat was duly allocated to me by the Bratislava City Council on 27 June 1991. [A.] benefits greedily from the fact that both flats have the same address (all flats in the same block have the same address) and prevents me from moving into my flat. In doing so he is vehemently supported by his wife [H.] who is the principal user of a[ nother ] State owned flat... [A.] claims the right to use the flat on the basis of a document signed by the head of the Housing Department of the Bratislava Staré mesto Local Office of 4 March 1991 ... stating that [A.] does not have to leave the flat until he has been provided with alternative accommodation. However, [A.] has had alternative accommodation for a long time, namely in the flat of his wife. He has acquired the right to use that flat automatically. Why has he not yet vacated the flat [allocated to the applicant]?

[A.] and his wife lied to me that they had no place to live and alleged that for this reason they would not vacate the flat. I point out that [H.] is a public prosecutor(!). Should our newly born democracy have such representatives of law, it will not outlive its childhood and we can bury it straightforwardly. The judiciary should first of all supervise the observance of the law and maintain justice in the State. But what is our judiciary like?

The company Tesla introduced an action against [A.] on 19 June 1991. The first hearing was scheduled for 27 January 1992 (!!!). Why?  [A.] failed to appear.

For how long will certain groups of people think (and act accordingly) that they have all the power in the State? ...

It is high time to show to the world, prior to the second free election, that our Government and society defend the justice.

I appeal to you. On 24 February 1992 at 11 a.m. the case of Tesla against [A.] will be heard in court room No. 37 at the Bratislava Palace of Justice. Do not let democracy to be slapped again and the ideals of building a State of law to change in an empty phrase.

P.S. I call upon all who have a similar problem to write to me. I hope that with common efforts we will be able to achieve more. May there be no need for it.”

The letter was signed by the applicant and indicated his address. It also indicated the full name and profession of both  A. and H. Its copy was attached at several tram and bus stops in Bratislava.

On 21 February 1992 the daily Smena published the applicant’s standpoint on his case. Its contents was almost identical with the open letter of 5 February 1992.

On 28 February 1992 A. and his wife H. sued the applicant for defamation before the Bratislava City Court ( Mestský súd ). They later extended their action also against the daily Smena .

On 9 April 1993 a witness confirmed before the City Court  that at the relevant time A. had lived with his father.

On 23 June 1993 the Bratislava City Court granted the claim. It ordered the applicant to apologise in writing for the interference with the claimants’ honour caused by the presentation of the aforesaid open letter at different public places in Bratislava. The applicant was further ordered to compensate non-pecuniary damage of 100,000 Slovak korunas (SKK) to each of the claimants, to reimburse their lawyer’s fees amounting to SKK 11,052.50 and to pay the court fees of SKK 600. The daily Smena was ordered to publish an apology, to pay SKK 100,000 to each of the claimants and to reimburse their legal costs.

The City Court noted that proceedings were pending before the Bratislava 1 District Court ( Obvodný súd ) which concerned the claim of Tesla for the flat in question to be vacated and also the counter-claim of A. It pointed out that the proceedings before the District Court raised difficult questions of fact and law.

The City Court held that the applicant had not, so far, acquired a right to use the flat and noted that according to a document issued by the Housing Department of the Bratislava Staré mesto Local Office on 4 March 1991 A. was not under an obligation to vacate the flat until he obtained alternative accommodation.

In the City Court’s view, the truthfulness of the opinions of the applicant and of a journalist which had been published in the daily Smena on 8 November 1991 and on 21 February 1992 was not proved.

The court considered that the applicant had interfered with the claimants’ right to protection of their personality also by exposing at public places or, as the case may have been, by rendering such a publication possible, his open letter of 5 February 1992. The court held that the letter contained tendentious, deformed and unsubstantiated information which had interfered with the claimants’ personal integrity.

The City Court found that this interference had affected the health of H., that following the publication of the article of 8 November 1991 disciplinary proceedings had been started against her and that, for the same reason, a loan had not been granted to A. who was a businessman. The family life of the claimants and of the children of H. had also been affected.

Both the applicant and the daily Smena appealed. The applicant claimed, with reference to the documents included in the case file, that the information contained in his open letter of 5 February 1992 was true. In particular, he argued that under the relevant law A. had no right to use the flat in question. He also offered proof that at the relevant time A. had had permanent address with his parents and that his wife had the right to use another flat.

The applicant pointed out that he could not have his contract on use of the flat concluded as the flat had been occupied, without any legal ground, by A. He therefore claimed that his conclusion that A. had prevented him from moving into the flat was true.

The applicant alleged, with reference to the documents which the City Court had had before it, that the first instance court had not evaluated the evidence before it correctly. He concluded that his statements had been based on true facts.

Finally, the applicant alleged that in any event, the interference in question had not  had any defamatory effect within the meaning of Section 11 of the Civil Code and that the City Court had not indicated any relevant damage or circumstance within the meaning of Section 13 of the Civil Code on which its conclusion had been based.

On 16 November 1995 the Supreme Court dismissed the appeal. It considered that the evidence taken before the City Court showed that the information contained in the article of 8 November 1991, in the standpoint of the applicant published in the daily Smena on 21 February 1992 and in the applicant’s open letter exposed at public places did not correspond to the reality and was objectively capable of affecting the claimants’ personality rights.

The Supreme Court recalled that after the allocation of the flat to the applicant the competent authorities had not concluded a contract on its use with him as required by the law then in force and that the applicant had not requested that such a contract be concluded. The Supreme Court therefore considered that the applicant’s allegation according to which A. had occupied the flat in question unlawfully and that he had benefited greedily from the fact that his permanent address was the same as that of the flat in question had been tendentious and misleading as the proceedings concerning the right of use of the flat in question were still pending before the Bratislava 1 District Court.

The Supreme Court held that the disclosure, in both the open letter and in the standpoint of 21 February 1992, of the name of H. and of the fact that she was a public prosecutor had grossly interfered with her right to protection of her personality. It concluded that the means by which the applicant had attempted to resolve his housing problem was inadequate as he had had other lawful means of seeking redress.

The Supreme Court referred to the profession of the claimants and found that the compensation the applicant had been charged to pay was appropriate and corresponded to the non-pecuniary damage A. and H. had suffered. The judgment was served on 17 January 1996.

On 14 February 1996 the applicant lodged a petition with the Constitutional Court ( Ústavný súd ). He alleged a violation of his constitutional rights including the freedom of expression in the proceedings leading to the Supreme Court’s judgment of 16 November 1995. In particular, he complained that the courts had disregarded the evidence proving the truthfulness of his statements. He explicitly invoked, inter alia , Article 26 of the Constitution.

On 27 February 1996 the Constitutional Court rejected the petition on the ground that it lacked jurisdiction to review or quash the general courts’ decisions and to award compensation to the applicant.

B. Relevant domestic law and practice

Article 26 of the Constitution guarantees to everyone the freedom of expression and the right to information.

Pursuant to Article 130 (3) of the Constitution, 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 its case-law, the Constitutional Court lacks jurisdiction to quash decisions delivered by the general courts, to suspend the enforcement of such decisions or to grant damages (see, e.g., the decisions Nos. I. ÚS 26/93, II. ÚS 1/95 and I. ÚS 6/94, all published in the Collection of the Constitutional Court’s findings and decisions).

A Constitutional Court’s finding, in the context of proceedings under Article 130 (3) of the Constitution, that a person’s constitutional rights were violated by a general court does not entail the right to have the proceedings before the general court re-opened. The relevant decision is within the discretionary power of the judges of the general court concerned.

The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Section 11 et seq . of the Civil Code.

Under Section 11, a natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, of privacy, of the name and of his or her personal characteristics.

Pursuant to Section 13 (1), a natural person has the right to request that unjustified interference with his or her personality should be stopped, that the consequences of such interference should be eliminated, and to obtain appropriate satisfaction.

Section 13 (2) provides that in cases when satisfaction obtained under Section 13 (1) is insufficient, in particular because a person’s dignity and position in the society was considerably diminished, the affected person is entitled to compensation for non-pecuniary damage.

Under Section 13 (3), the amount of the compensation to be paid under Section 13 (2)  is to be fixed by courts after considering the gravity of the damage and the circumstances under which a person’s right was violated.

The existence of an unjustified interference objectively capable of affecting a person’s rights under Section 11 et seq . of the Civil Code is an indispensable prerequisite for a successful claim for the protection of that person’s personality.

In accordance with the established practice, a plaintiff in defamation proceedings has to prove that the defendant’s allegations were objectively capable of affecting his or her rights under Section 11 of the Civil Code. When the plaintiff complies with this requirement, the defendant has to produce evidence capable of proving the truth of his allegations if the defence is to succeed.

Section 179 (1) of the Civil Code, as in force until 31 December 1991, provides that the right to use a flat after the death of the user shall be transferred to persons who, inter alia , had a common household with the person entitled to use it for at least one year before his or her death provided that they have no apartment of their own.

COMPLAINT

The applicant complains that his right to freedom of expression as guaranteed by Article 10 of the Convention was violated in the proceedings leading to the Supreme Court’s judgment of 16 November 1995. In particular, he alleges that the courts disregarded the evidence proving the truthfulness of his statements, that the burden of proof imposed upon him was unlawful and that the compensation he was ordered to pay was extremely high.

THE LAW

The applicant complains that his right to freedom of expression was violated in the proceedings leading to the Supreme Court’s judgment of 16 November 1995. 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 contend that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention as he failed to allege a violation of his right to freedom of expression in his constitutional petition. They submit that a Constitutional Court’s finding of the violation of the applicant’s right to freedom of expression would entitle the applicant to request the re-opening of the proceedings before the general courts and that the latter could, in this context, stay the enforcement of the relevant judgments .

The applicant disagrees.

The Court notes that the applicant explicitly invoked, inter alia , his constitutional right to freedom of expression guaranteed by Article 26 of the Constitution in his petition to the Constitutional Court and that the latter found that it lacked jurisdiction to deal with his case.

In any event, the Court finds that a petition pursuant to Article 130 (3) of the Constitution was not capable of providing a direct protection of the applicant’s rights guaranteed by Article 10 § 1 of the Convention as required by the Court’s case-law (see the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, pp. 16-17, § 29 and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 68).

In these circumstances, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

As to the merits, the Government submit that the interference with the applicant’s right to freedom of expression was in accordance with Sections 11 and 13 of the Civil Code and that it pursued the legitimate aim of protecting the reputation and rights of others.

They further maintain that the applicant’s open letter contained untrue and misleading statements about A. and H. and that it disclosed the full name and address of A. as well as the name and profession of H. The applicant failed to provide evidence in support of his allegations according to which A. had occupied the flat unlawfully, that A. had registered his permanent residence in the apartment of his father, that A. had greedily benefited from the fact that his father’s address coincided with the address of the flat in question and that H. had actively supported her husband in his activities.

In the Government’s view, the non-pecuniary damage the applicant was ordered to pay to A. and H. was justified by the particular circumstances of the case. They  conclude that the interference with the applicant’s right to freedom of expression was necessary in a democratic society within the meaning of Article 10 § 2 of the Convention.

The applicant submits that his right to freedom of expression was violated. He maintains that his statements were true and contained no intimate information. In his view, the courts erroneously shifted the burden of proof on him, disregarded the documentary evidence offered by him and failed to establish any link between his statements and the alleged interference with the personality rights of A. and H.

Having examined the above issues the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. Accordingly, the application cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President