SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29021/95

by J.K.

against Slovakia

The European Court of Human Rights ( Second Section) sitting on 25 May 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr A.B. Baka ,

Mr E. Levits , Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 March 1994 by J.K. against Slovakia and registered on 31 October 1995 under file no. 29021/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 19 July 1996 and the observations in reply submitted by the applicant on 19 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national, born in 1955 and living in Bratislava.

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

A. Particular circumstances of the case

On 10 October 1991 the Bratislava 5 District Office ( Obvodný úrad ) registered the applicant as an entrepreneur pursuant to Act No. 105/1990 on Business Activities of Citizens ( Zákon o súkromnom podnikaní ob č anov ). The business activities covered by the registration included also the running of massage parlours.

On 30 December 1992 the Bratislava 5 District Office issued a trade licence to the applicant pursuant to the relevant provisions of Act No. 455/1991 ( Zákon o ž ivnostenskom podnikaní - “the Trades Act”) of 2 October 1991. It entitled the applicant to run massage parlours in Bratislava and in Bojnice . The applicant has possessed another massage parlour in Ž ilina which was established on 1 January 1992.

On 12 December 1992 the Žilina Municipal Council ( Mestské zastupiteľstvo) issued Regulation No. 12/1992 governing business activities in the town. On 29 April 1993 the  Regulation was supplemented in that massage parlours were prohibited from Žilina .

On 17 June 1993 the applicant lodged a petition pursuant to Article 130 (3) of the Constitution with the Constitutional Court ( Ústavný súd ) in which he complained that the Žilina Municipal Council’s Regulation No. 12/1992, as amended, violated his right to freedom of business activities guaranteed by Article 35 of the Constitution.

The petition was dismissed on 16 November 1993. The Constitutional Court held that prior to an examination of the applicant’s case it would have to establish, in separate proceedings, whether or not Regulation No. 12/1992 was compatible with the Constitution.  However, the applicant lacked standing to bring such proceedings as it was reserved to persons enumerated in Section 18 (1) of the Constitutional Court Act.

On 31 August 1993 the Žilina Local Office ( Obvodný úrad ) found the applicant guilty of a minor offence ( priestupok ) pursuant to Section 46 of Act No. 472/1990 (Z ákon o priestupkoch - “the Minor Offences Act”) of 28 August 1990 as he had failed to comply with Regulation No. 12/1992. The applicant was fined 1,000 Slovak korunas (SKK). The decision stated that the sanction was determined in accordance with Section 12 (1) of the Minor Offences Act. The applicant was further ordered to pay the costs of the proceedings of SKK 150.

The applicant appealed and alleged that the relevant provisions of Regulation No. 12/1992 were unconstitutional.

On 26 November 1993 the Žilina District Office ( Okresný úrad ) upheld the decision. The District Office noted that it lacked jurisdiction to assess Regulation No. 12/1992 from the legal point of view or initiate its quashing.

By separate decisions of 18 May and 22 December 1993 and of 25 January 1994 respectively the Mayor of Žilina refused to consent to the applicant’s massage parlour being placed in the town. This standpoint was substantiated, inter alia , by the necessity to prevent sexually transmissible diseases from being spread, by the complaints of inhabitants living in the neighbourhoods, by the fact that the massage parlour was situated in the vicinity of a primary school and also by the ban Regulation No. 12/1992 imposed on such establishments in Žilina .

On 24 February 1994 the Žilina District Office upheld the Mayor’s decision of 25 January 1994.

The applicant sought redress before the Banská Bystrica Regional Court ( Krajský súd ). He claimed that the Žilina municipality had no right to refuse its consent to his business being placed in the town since he had met all the requirements of the Trades Act. In his view, the reason for the refusal, i.e. the existence of Regulation No. 12/1992, was not relevant as the prohibition of massage parlours from Žilina was unconstitutional.

On 18 May 1994 the Regional Court quashed the District Office’s decision of 24 February 1994 as, in the court’s view, it was unsubstantiated and had no legal basis. In its judgment the Regional Court stated:

[Translation]

“Pursuant to Section 4 (3) (d) of Act No. 369/1990, municipalities are entitled to issue binding opinions as regards, inter alia , the establishment of a business. It is not contested that [the applicant] had a licence ... issued by the Bratislava 5 District Office pursuant to [the relevant provisions of] Act No. 455/1991... It has also been proved that on 9 December 1991 [the applicant] requested consent to his business being placed in Žilina ... However, the consent was not given and it could not have been given as at that time the premises in which the business was to be established were not [available]...

Pursuant to Section 46 (3) of the Trades Act, notification of the establishment of a business must be accompanied by the consent of the municipality concerned... Such a consent is a precondition ... and without it a business cannot be run.

It follows that the defendant authority’s decision at issue is superfluous. The defendant authority will have to find other legal means of bringing the actual situation, i.e. the existence of the massage parlour, in agreement with the legal situation, i.e. the absence of a consent within the meaning of Section 46 (3) [of the Trades Act]. The municipality made a mistake in this respect in that it allowed [the applicant] to establish his business without that condition having been met. However, this shortcoming cannot be remedied by means of a decision disapproving of the business. [The applicant’s] business activities would have to be restricted on a different legal and factual basis.”

The case was sent back to the Žilina District Office which quashed, on 6 February 1995, the relevant decision of the Mayor of Žilina .

On 31 May 1994 the Žilina District Prosecutor ( Okresný prokurátor ) asked the Žilina municipality to reconsider its Regulation No. 12/1992 as, in his view, it was in contradiction to the constitutional right to pursue business activities freely. On 16 June 1994 the Žilina Municipal Council expressed its disapproval of the protest lodged by the District Prosecutor.

On 15 November 1994 the Banská Bystrica Regional Prosecutor ( Krajský prokurátor ) informed the applicant that he had proposed to the General Prosecutor to initiate the quashing of Regulation No. 12/1992 by the National Council of the Slovak Republic. No further steps were taken in this respect.

On 13 February 1995 the Žilina Local Office found that the applicant had committed minor offences under Sections 24 (1) and 46 of the Minor Offences Act in that, between 1 January 1992 and 8 November 1994, he had carried on his business in Žilina in disrespect of Regulation No. 12/1992. The applicant was fined SKK 1,800 and ordered to pay the costs of the proceedings of SKK 150. On 21 April 1995 the Žilina District Office upheld this decision.

The applicant has continued running his business in Žilina .

B. Relevant domestic law and practice

Constitutional provisions and the Constitutional Court Act

Article 35 (1) of the Constitution provides that every person shall have the right, inter alia , to earn his or her living through business activities. By paragraph 2 of the same Article, the terms of specific trades or activities or restrictions on them may be regulated by law.

Pursuant to Article 127 of the Constitution, the Constitutional Court shall review the challenges to final decisions made by central government authorities, local government authorities and local self-government bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.

Article 130 of the Constitution provides as follows:

“1. The Constitutional Court shall commence proceedings upon a proposal [ ná vrh ] submitted by:

a) no less than one fifth of all members of the National Council of the Slovak Republic;

b) the President of the Slovak Republic;

c) the Government of the Slovak Republic;

d) a court;

e) the General Prosecutor;

f) any person whose rights shall be adjudicated pursuant to Article 127.

...

3. The Constitutional Court may commence proceedings upon a petition [ podnet ] submitted by legal entities or individuals claiming a violation of their rights.”

Proceedings before the Constitutional Court are governed in more detail by the Constitutional Court Act of 1993. Section 18 (1), as in force until 22 December 1995, contained the same provisions as Article 130 (1) of the Constitution. As of the aforesaid date Section 18 (1) (d) has been amended in that a court may only bring proceedings before the Constitutional Court in the context of its decision-making activities.

Trades Act of 1991

Pursuant to Section 46 (3), as in force until 30 June 1994, a notification about the establishment of a business was to be accompanied by a letter of approval issued by the municipality concerned. A business could not be run without such an approval.

Minor Offences Act of 1990

Section 1 of the Minor Offences Act defines its purpose in the following terms:

[translation]

“Administrative authorities of the Slovak Republic and municipal organs shall encourage the citizens to respect legal rules and the rights of other citizens. They shall ensure, in particular, that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety.”

Section 2 (1) contains the following definition of a minor offence:

[translation]

“A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this Act or another law, unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence.”

Section 11 entitles the competent authorities to impose sanctions ( sankcie ) on the perpetrators of minor offences. It reads as follows:

[translation]

“1. The following sanctions may be imposed for a minor offence:

a) reprimand,

b) fine,

c) prohibition to exercise certain activity,

d) confiscation of an object.

2. A sanction can be imposed either separately or in combination with another sanction; a reprimand cannot be combined with a fine.

3. It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator.”

Section 12 (1), in so far as relevant, provides:

“When determining the type and amount of the sanction, the seriousness of the minor offence and, in particular, the way and the circumstances in which it was committed, its consequences, the degree of guilt, the motive and the person of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account.”

Pursuant to Section 24 (1) (d), a person who carries out, without a title, a commercial or other profit-making activity commits a minor offence. Under paragraph 2 of the same Section, such a minor offence is punishable with a fine up to SKK 10,000.

Section 46 qualifies as a minor offence against administrative order a failure to comply with obligations imposed by generally binding legal rules including regulations issued by municipalities if such a failure obstructs the carrying out of tasks vested in state administration or municipalities. Such a minor offence is punishable with a maximum fine of SKK 1,000.

Section 73 reads as follows:

[translation]

“1. A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her. Such a person shall be considered innocent until his or her guilt has been established by a final decision.

2. A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts, to present facts and evidence in his or her defence, make submissions and have recourse to remedies. He or she cannot be forced to make statements or to plead guilty.”

Section 77, in so far as relevant, provides:

[translation]

“The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed, the finding of guilt, the type and amount of the sanction or, as the case may be, the decision not to impose a sanction ...”

Pursuant to Section 83 (1) only decisions on minor offences by which a fine exceeding SKK 2,000 was imposed, by which exercise of a certain activity for a period exceeding six months was prohibited or an object of a value exceeding SKK 2,000 was confiscated, could be reviewed by courts.

In its decision No. II. ÚS 44/94 of 24 November 1994 the Constitutional Court held that it was bound by the provisions of Section 83 (1) of the Minor Offences Act.

On 15 October 1998 the Constitutional Court found, in proceedings brought at the proposal of the General Prosecutor, that Section 83 (1) of the Minor Offences Act, to the extent that it limited the judicial review of decisions on minor offences to, inter alia , fines exceeding 2,000 Slovak crowns was contrary to Article 6 § 1 of the Convention and also to the relevant provision of the Constitution. The Constitutional Court’s finding was published in the Collection of Laws on 23 October 1998. As from this date, the relevant provisions of Section 83 (1) of the Minor Offences Act became ineffective.

COMPLAINTS

The applicant complains about the absence of any judicial review of the decisions on fines which were imposed on him under the Minor Offences Act. He alleges a violation of Article 6 of the Convention.

The applicant further complains that the Žilina Municipal Council’s Regulation No. 12/1992 is unconstitutional as, pursuant to Article 35 (2) of the Constitution, business activities may be restricted only by a law which was enacted by the Parliament and not by generally binding regulations of municipalities. He alleges a violation of Article 1 of Protocol No. 1 in that he was fined as a result of the implementation of the aforesaid Regulation.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 8 March 1994 and registered on 31 October 1995.

On 15 May 1996, the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 19 July 1996. The applicant replied on 19 September 1996.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains about the absence of any judicial review of the decisions on fines which were imposed on him under the Minor Offences Act. He alleges a violation of Article 6 § 1 which provides, so far as relevant, as follows:

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

The Government submit that the applicant did not lodge a constitutional complaint pursuant to Article 127 of the Constitution. They conclude that he failed to comply with the requirement as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention.

The Government maintain that the opinion according to which the provisions of Section 83 (1) of the Minor Offences Act were binding also on the Constitutional Court expressed in the latter’s decision No. II ÚS 44/94 of 24 November 1994 (see “Relevant domestic law and practice” above) cannot be regarded as its established case-law. In particular, they submit that this decision was delivered by a chamber of the Constitutional Court, that it was not published, and that it was not binding on any other chamber which could possibly have dealt with the applicant’s constitutional complaint if he had availed himself of this remedy.

The applicant disagrees.

The Court recalls that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, inter alia , that it offered reasonable prospects of success (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210 and 1211, §§ 66 and 68, with further references).

The Convention organs have previously dealt with complaints concerning the absence of a judicial review of decisions on minor offences imposing a fine lower that SKK 2,000 in two cases (see Eur. Court HR, Lauko v. Slovakia judgment of 2 September 1998, to be published in Reports of Judgments and Decisions 1998 and the Commission’s report of 30 October 1997 in Application No. 26138/95; Kadubec v. Slovakia judgment of 2 September 1998, to be published in Reports of Judgments and Decisions 1998 and the Commission’s report of 30 October 1997 in Application No. 27061/95). In the former case, the applicant lodged a constitutional complaint but it was rejected by the Constitutional Court’s decision No. II ÚS 44/94 of 24 November 1994 mentioned above. In the latter case, the applicant also tried a constitutional complaint but the Constitutional Court rejected it, on 25 May 1994, for formal reasons (see the Kadubec v. Slovakia judgment cited above, § 13). The respondent Government did not raise the objection of non-exhaustion of domestic remedies in respect of the latter case.

In the present case, the Court is not convinced that the possibility that the applicant’s case could have been dealt with by a different chamber of the Constitutional Court which might have taken a different position from the one expressed in the Constitutional Court’s decision in the case of I. Lauko of 24 November 1994 could lead to the conclusion that a constitutional complaint was a remedy offering reasonable prospects of success within the meaning of the Court’s case-law. Accordingly, the Government’s objection cannot be upheld.

The Court has noted that on 15 October 1998 the Constitutional Court found, in proceedings brought at the proposal of the General Prosecutor, that the relevant provisions of Section 83 (1) of the Minor Offences Act were contrary to Article 6 § 1 of the Convention, and that these provisions became ineffective as from 23 October 1998. However, this finding cannot affect the position in the present case which relates to a prior period.

As regards the merits of this part of the application, the Government submit that Article 6 of the Convention is not applicable. In particular, they point out that the minor offences for which the applicant was fined have never fallen under criminal law in the Slovak legal system and that they cannot fall within the scope of the general criminal law as they lack a serious character.

The Government further contend that the purpose of the Minor Offences Act is to prevent wrongful acts of an administrative nature in the exercise of the public administration and in relations between citizens, and that it does not encourage punishment. They therefore consider that the minor offences in question were not criminal in their nature.

Finally, the Government maintain that the nature and degree of severity of the penalty incurred by the applicant do not warrant classifying the minor offences at issue as criminal, either. They point out, in particular, that the imposition of a sanction under the Minor Offences Act is within the discretionary power of the administrative authority concerned, and that the sanctions for minor offences are not entered in the criminal record.

The applicant submits that the guarantees of Article 6 of the Convention should have applied but were not respected in the proceedings in which he was fined for minor offences.

Having examined these 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, this part of 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.

2. The applicant also complains that by imposing fines on him for his failure to comply with the Žilina Municipal Council’s Regulation No. 12/1992 the Slovak authorities interfered with his property rights. 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 Government first submit that the applicant has not exhausted domestic remedies as regards the alleged conflict between, on the one hand, the Žilina Municipal Council’s Regulation No. 12/1992 and, on the other hand, his rights under the Constitution and Article 1 of Protocol No. 1. They contend that it was open to the applicant to lodge an action with a general court with a view to having his right to run his business in Žilina determined and to request the general court to seize, in this context, the Constitutional Court with the conflict of laws.

As to the fines at issue, the Government submit that they were imposed in accordance with the law, that this interference was justified by the general interest in protecting the morals and the rights of others and that the amount of the fines in question was negligible.

The applicant contends that the Žilina Municipal Council’s Regulation No. 12/1992 is unconstitutional as pursuant to Article 35 (2) of the Constitution business activities may be restricted only by a law which was enacted by the Parliament and not by generally binding regulations of municipalities. In his view, the remedy invoked by the Government would have no prospect of success.

The applicant further maintains that the fines imposed on him under the Minor Offences Act were incompatible with his right under Article 1 of Protocol No. 1.

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

In the present case the applicant has not been prevented from running his business but suffered a damage as a result of the imposition of fines under the Minor Offences Act. Accordingly, there has been an interference with his right of property which falls to be examined in the light of the second paragraph of Article 1 of Protocol No. 1 and which must be construed in the light of the general principle of peaceful enjoyment of property set out in the first sentence of the first paragraph (see, among other authorities , the Matos e Silva, Lda ., and Others v. Portugal judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1113, § 81).

The Court’s task in this context is to supervise the lawfulness, purpose and proportionality of the interference in question (see, e.g., the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B, pp. 25-27, §§ 29-40).

As to the applicant’s argument that the interference with his property was unlawful because the Žilina Municipal Council’s Regulation No. 12/1992 was contrary to his right under Article 35 of the Constitution to run his business freely, the Court notes that neither Article 1 of Protocol No. 1 nor any other provision of the Convention or its protocols guarantees, as such, a right to challenge primary or secondary legislation including regulations issued by municipal authorities.

The Court’s power to review compliance with domestic law is limited. When examining an individual application lodged under Article 34 (Article 25 prior to the entry into force of Protocol No. 11 to the Convention) the Court has to confine itself, as far as possible, to an examination of the particular case before it. It is accordingly not called upon to review, in abstracto , the conformity of the Minor Offences Act or of the municipal regulation at issue with the provisions of the Convention or, as the applicant requests, with the Constitution of the Slovak Republic. The Court’s task is to determine whether or not the manner in which the relevant provisions of Slovak law were applied to or affected the applicant gave rise to any violations of the Convention (see the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, § 57 and the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, pp. 23 and 25, §§ 54 and 65).

The Court notes that the applicant was fined twice pursuant to the Minor Offences Act as he had failed to comply with the Žilina Municipal Council’s Regulation No. 12/1992, as amended. Thus, the fines imposed on the applicant had a basis in Slovak law, and the Court has before it no information which would indicate that the relevant provisions were not sufficiently foreseeable and certain to satisfy the requirements of Article 1 of Protocol No. 1.

In the particular circumstances of the case, the Court does not consider that the absence of a judicial review of the decisions in question amounts, in itself, to a violation of Article 1 of Protocol No. 1 (see the Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, pp. 16-17, § 50, with further references).

The Court therefore accepts that the impugned measures were in accordance with Slovak law, in particular the Minor Offences Act. The Court is further satisfied that these measures were the implementation of the aforesaid Act the general purpose of which is to encourage the citizens to respect legal rules and the rights of other citizens.

On the question of the proportionality of the interference with the applicant’s rights, the Court recalls that it requires a determination as to whether there was a reasonable relationship between the means employed and the aim sought to be realised. In this respect, the States enjoy a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the measure in question (see, e.g., the Agosi v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 18, § 52).

In the present case two fines of SKK 1,000 and 1,800 respectively were imposed on the applicant and he was also ordered to pay the costs of SKK 150 in both sets of the proceedings. The Court considers that the obligation to pay these sums did not affect the applicant’s right of property or interfered with his financial situation to such an extent that this could be considered an abuse of the Contracting Party’s right to secure the payment of penalties.

Having regard to the foregoing and to the margin of appreciation enjoyed by the Slovak authorities in this area, the Court is of the opinion that the interference in question was compatible with the applicant’s right under Article 1 of Protocol No 1.

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,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaint under Article 6 § 1 of the Convention about the absence of a judicial review of the decisions by which he was fined under the Minor Offences Act;

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President