Resolution CM/ ResDH (2011)31 [1]

Execution of the judgment of the European Court of Human Rights

Kontrová against the Slovak Republic

(Application No. 7510/04, judgment of 31 May 2007, final on 24 September 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the authorities ’ failure to take positive action to protect the life of the applicant ’ s two children (violation of Article 2) as well as the absence of an effective remedy in this respect (violation of Article 13 taken together with Article 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)31

Information on the measures taken to comply with the judgment in the case of

Kontrová against the Slovak Republic

Introductory case summary

The case concerns the authorities ’ failure to take positive action to protect the life of the applicant ’ s two children (violation of Article 2). The Court found that the police were aware of the applicant ’ s situation in view of her criminal complaint and her emergency calls concerning her husband ’ s threatening behaviour, but they did nothing to prevent him from shooting their two children.

Moreover, the Court found that the applicant did not have an effective remedy to apply for compensation for the non-pecuniary damage suffered (violation of Article 13 taken together with Article 2).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Kontrová (7510/04)

-

25 000 EUR

4 300 EUR

29 300 EUR

Paid on 03/12/2007

b) Individual measures

The Court awarded the applicant just satisfaction in respect of the non-pecuniary damage suffered. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

1) Violation of Article 2 : The European Court observed that, under section 2 (1) (a) and (b) of the Police Corps Act of 1993, it was one of the main tasks of the police to protect fundamental rights and freedoms, life and health. In this case, which in the view of the Slovakian authorities is an isolated one, the police failed to comply with the obligations stemming from this law and from the Code of Criminal Procedure.

The judgment was published in the journal Justičná Revue No. 12/2007. On 31 January 2008 it was circulated to all regional courts under cover of a letter from the Government Agent. Presidents of regional courts were asked to notify the judgment to all judges in regional and district courts within their jurisdiction. Under cover of another letter from the Government Agent, the judgment was also sent to the chief of police, requested to notify it to all directors of district police offices. In the framework of the Office for the Fight against Organised Crime of the Police Presidium, the judgment was further brought to the attention of the management of the Office, directors of departments and leaders of investigation sections, specially assigned officials of the General Prosecution Service and the director of the International Department of General Prosecution Service. The case was also presented to prosecutors of the General Prosecution Service and subordinate prosecutors at seminars in 2009 and 2010.

2) Violation of Article 13 taken together with Article 2 : The European Court found that, due to the lack of sufficiently consistent case-law at the time, the action for protection of personal integrity under Articles 11 et seq . of the Civil Code did not in the applicant ’ s case provide an effective remedy whereby she might obtain compensation for non-pecuniary damage. It noted that the development of the case-law relating to this protection dated from 2006 and concerned decisions of courts at the lowest level of jurisdiction.

However, in its decision in the case of Furdík against the Slovak Republic (42994/05, decision of 2/12/2008) the European Court accepted that the possibility of bringing a claim for personal integrity is now sufficiently certain. It stated inter alia that “the new developments referred to in the Kontrová judgment were confirmed [ ... ]. In view of the above, the applicant could arguably claim redress under Article 11 et seq . of the Civil Code and, if unsuccessful, lodge a complaint with the Constitutional Court relying on the guarantees of Article 2 of the Convention or its constitutional equivalent.”

The Government Agent has organised a number of seminars on the possibility of filing an action for protection of personal integrity under Article 11 of the Civil Code, in association with the European Legal Centre EUROIURIS, the Academy of Justice and the Slovak Bar Association.

Moreover, sections 46, 287 and 288 of the Criminal Code (Act No.301/2005 Coll ), which came into force on 1 January 2006, provide a legal basis for claiming compensation for non-pecuniary damages against the perpetrator of a criminal offence. No court fees are payable when bringing such a claim (Act No.71/1992 Coll. on Court fees). In addition, as from 1 July 2004 claims for non-pecuniary damage may also be brought against wrongful official conduct of public authorities under the State Liability Act (Act 514/2003 Coll ). Under sections 9(1) and (2), wrongful official conduct appears to include cases in which an authority ignores statutory time limits, is inactive in discharging public power or where there are undue delays in proceedings or other unlawful interference with an individual ’ s legal rights or interests. Section 27 of the Act provides that it will only apply to official misconduct occurring after it entered into force. According to the explanatory report, the purpose of the Act was inter alia to extend the mechanism of compensation for damage caused by public authorities and thereby reduce the number of cases in which claimants were obliged to seek redress before the European Court .

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies