FIRST SECTION

DECISION

Applications nos. 41510/16 and 81651/17 Tomáš PAPAJ against Slovakia

The European Court of Human Rights (First Section), sitting on 18 October 2022 as a Committee composed of:

Péter Paczolay , President,

Alena Poláčková ,

Davor Derenčinović , judges,

and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the two applications against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 July 2016 and 27 November 2017 by a Slovak national, Mr Tomáš Papaj, who was born in 1983 and habitually resides in Liptovský Hrádok (“the applicant”), and who was represented before the Court by Mr M. Antal , a lawyer practicing in Trnava;

the decision to give notice of the below complaints under Article 6 § 1 and Articles 8 and 13 of the Convention to the Government of the Slovak Republic (“the Government”) represented by their Agent, Ms M. Pirošíková, who was succeeded in that function by Ms M. Bálintová, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns an alleged lack of a judicial review and alleged divergent judicial practice on that matter in relation to a disciplinary sanction and a refusal of an open visit in the context of the applicant’s service of a prison term for a drug-related offence.

2. As regards application no. 41510/16, in June 2013 the applicant was found in possession of medication that had previously been prescribed by a doctor but according to the prescription was to have been spent or returned by the given time. This was a disciplinary offence, and he was sanctioned by a whole-day placement in a closed section of the prison for ten days.

3. As to application no. 81651/17, in November 2015 and January 2016 the applicant requested authorisation to receive an open visit and these requests were dismissed with reference to his behaviour and attitude.

4. In all instances, the applicant sought to challenge the decisions before the administrative courts, which found that they had no jurisdiction in the matter and transmitted it to the Public Prosecution Service (“the PPS”) for examination under special legislation. The applicant then unsuccessfully challenged the referral of his complaints to the PPS before the Constitutional Court which held that, indeed, the matter fell within the former’s jurisdiction.

5. Following the said referral, the PPS examined and dismissed the applicant’s complaints. In application no. 41510/16 he then unsuccessfully asked for the dismissal to be reviewed by a higher level of the PPS. In neither application has the applicant challenged the outcome of the PPS examination before the Constitutional Court.

6. Before the Court, the applicant complained that the judicial practice in respect of the jurisdiction of the administrative courts had been inconsistent and that the referral of his challenges to the PPS had been arbitrary. In both applications, he relied on Article 6 § 1 (access to court and fair hearing). In application no. 81651/17, he also invoked Articles 8 and 13 of the Convention.

THE COURT’S ASSESSMENT

7. Having regard to the similar subject matter of the applications and that they relate to the same applicant, the Court finds it appropriate to examine them jointly in a single decision.

8. The applicant’s main complaint in both applications is his discontent with having his complaints concerning the decisions on his disciplinary sanction and his requests for open visits referred for examination by the PPS, rather than having them examined by the administrative courts.

9. In so far as the applicant seeks to challenge that position in relation to his disciplinary sanction under Article 6 § 1 of the Convention, that provision is inapplicable under its criminal head (see Štitić v. Croatia , no. 29660/03, §§ 51-63, 8 November 2007). It is unnecessary to rule definitively on its applicability under the civil head since that application is in any event inadmissible for the following reasons.

10. On the facts, under special legislation concerning the execution of prison sentences and the status and functioning of the PPS, the protection of the applicant’s rights and interests was primarily entrusted to the PPS. Its decisions were then ultimately reviewable by the Constitutional Court under Article 127 of the Constitution (in that regard, see Maslák v. Slovakia (no. 2) , no. 38321/17, §§ 75, 83, 90, 92 and 115, 31 March 2022). In the Maslák judgment, the Court globally examined various aspects of the applicant’s service of a part of his prison sentence under a high-security regime. Combined with other factors, this included the way how the PPS and the Constitutional Court made use of their jurisdiction in the matter (§ 175).

11. In the present case, the applicant nominally argued that the review by the PPS had not been “sufficient, impartial and effective”. However, this argument has not been substantiated with reference to any element of fact or law beyond his disagreement with the substantive assessment of his case by the PPS. Moreover, no argument has been advanced at the domestic level or before the Court as to why a judicial review of the PPS decisions by the Constitutional Court and the overall functioning of the review mechanism under the authority of the two institutions should be incompatible with the Convention requirements.

12. Furthermore, as the applicant has not made use of the said procedure (a repeated complaint to the PPS in application no. 81651/17 and a constitutional complaint about the outcome of the PPS examination of his complaints in both applications), there is nothing on the facts to serve as a basis for questioning its potential in his specific case. Therefore, in so far as the applicant’s complaints of an alleged lack of access to court and judicial review have been substantiated, they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

13. In view of the above conclusion, the arguable differences in the national practice at the relevant time as regards the jurisdiction of the administrative tribunals, which is an additional legal avenue that the courts found unavailable in the applicant’s case, cannot be said to have caused him any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention in relation to the subject matter of his applications before the Court. As this issue is now resolved by operation of Law no. 370/2013 Coll., confirming the position taken by the courts in the applicant’s case, no consideration of respect for human rights as defined in the Convention and the Protocols thereto has been established so as to call for an examination of this matter on the merits. It follows that the relevant part of the application is inadmissible under Article 35 § 3 (b) of the Convention and must be rejected pursuant to Article 35 § 4.

14 . Lastly, in application no. 81651/17, in so far as the applicant invoked Article 8 of the Convention, the Court notes that while mentioning this provision in the application form, he in fact made no separate complaint about a violation of his substantive rights under it. No decision in that respect is accordingly called for.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 November 2022.

Liv Tigerstedt Péter Paczolay Deputy Registrar President