CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 juin 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 24157/94                        by Arpád MATEJKA                        against the Slovak Republic        The European Commission of Human Rights (Second Chamber) sitting in private on 28 June 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 19 July 1993 by Arpád MATEJKA against the Slovak Republic and registered on 18 May 1994 under file No. 24157/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak citizen born in 1939.   He is a member of the National Council (Parliament) of the Slovak Republic and resides in Trnava.        The facts of the case, as submitted by the applicant, may be summarised as follows.   The particular circumstances of the case        In March 1992 the applicant received a certificate issued by the Ministry of the Interior pursuant to Act No. 451/1991 (see Relevant domestic law and practice below).   He was then head of the Trnava District Office.   According to the certificate the applicant was registered as a person mentioned in Section 2 para. 1 (b) of the aforesaid Act.   Although the certificate was confidential, its contents were later revealed in the media.        On 11 May 1992 the applicant requested judicial review of the certificate.   On 15 July 1992 the Regional Court (Krajsky súd) in Bratislava discontinued the proceedings introduced by the applicant as under the law in force certificates issued to persons mentioned in Section 2 para. 1 (b) of Act No. 451/1991 cannot be reviewed by administrative courts.   On 30 October 1992 the Supreme Court (Najvyssí súd) upheld the Regional Court's decision.   The decision of the Supreme Court was served on 14 December 1992.        The applicant stood as a candidate in the parliamentary election for the office of President of the Supreme Audit Office held on 25 June 1993.   Although it was not formally required, a member of the Parliament moved for confirmation, by those who had proposed the candidates, that the nominees met the requirements of Act No. 451/1991. The confirmation was given in respect of the other candidate.   The chairman then invited the applicant to submit a similar confirmation by himself.   The applicant declared that he had neither collaborated with anybody nor signed anything.   This declaration met with laughter in the meeting room and was also commented upon in the press.        In the subsequent two polls the applicant received 68 and 67 votes.   The other candidate received 59 votes.   However, in order to be elected 70 and 69 votes respectively were required.   Thus neither of the candidates was elected.   Pursuant to the rules of procedure a new election was held in which different candidates had to be presented.         In September 1993 the applicant introduced a petition (podnet) with the Constitutional Court (Ústavny súd).   He complained that by virtue of Act No. 451/1991 his rights were violated and requested that the constitutionality of this Act should be examined.   On 24 November 1993 the Constitutional Court rejected the applicant's petition as individuals lack capacity to introduce proceedings on constitutional conflicts.   Relevant domestic law and practice         Act No. 451/1991 of 4 October 1991 lays down supplementary requirements for the holding of certain important posts and functions in State organs and institutions which are filled by election, designation or appointment.   The Act prevents persons mentioned in Section 2 para. 1 from exercising, for a period which expires on 31 December 1996, the functions enumerated in Section 1.        According to Section 2 para. 1 (b) the functions covered by the Act can be exercised only by persons who are not registered in the State Security (former secret police) files as "resident, agent, conspiratorial flat holder, informer or ideological collaborator" of the State Security.   The fact that a person meets the requirements of Section 2 para. 1 (b) of the Act is to be proved by means of a certificate issued by the Ministry of the Interior.        It has been established by the judicial doctrine and the relevant case-law that persons who consider themselves adversely affected by the certificate can seek redress before civil courts by means of an action for protection of their honour and reputation pursuant to Section 11 et seq. of the Civil Code.   COMPLAINTS        The applicant complains that Act No. 451/1991 is discriminatory, violates the principle of presumption of innocence and does not provide for a judicial review of the certificates issued by the Ministry of the Interior.        The applicant further alleges that by application of Act No. 451/1991 he was convicted of a criminal offence and incurred the penalty of being banned from certain posts in State organs and institutions.   He alleges that his dignity and good reputation had suffered.   He invokes Article 5 paras. 1 (b) and 4 and Article 6 paras. 1, 2 and 3 of the Convention.        Finally, the applicant complains that by the decision to apply Act No. 451/1991 in the election for the office of President of the Supreme Audit Office he was discriminated against and that his right to promotion in employment was violated.   He also complains that the competent organs refused to protect his rights.   The applicant invokes Articles 14, 17 and 60 of the Convention in this respect.   THE LAW   1.    The applicant alleges a violation of his right to liberty and security of person guaranteed by Article 5 (Art. 5) of the Convention.        He further alleges that by virtue of Act No. 451/1991 he was charged with and convicted of a criminal offence without having been granted the guarantees provided for in Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention.        Under Article 14 (Art. 14) of the Convention the applicant complains of being discriminated against as (i) the Act No. 451/1991 prevents him from holding certain posts and functions in State organs and institutions, and (ii) he was not elected President of the Supreme Audit Office.        The Commission first observes that the applicant has not been deprived of his liberty.   Accordingly, Article 5 (Art. 5) of the Convention is not applicable to the present case.        Secondly, it is to be noted that in the present case no criminal proceedings were brought against the applicant.   The Ministry of the Interior issued the applicant with a certificate alleging that he was registered as a person mentioned in Section 2 para. 1 (b) of Act No. 451/1991.   However, the issue of this certificate cannot be regarded as a criminal charge within the meaning of Article 6 (Art. 6) of the Convention.        To the extent that the applicant complains of having been discriminated against, the Commission recalls that Article 14 (Art. 14) of the Convention applies only to the enjoyment of the rights and freedoms guaranteed by the Convention.        However, in accordance with the Convention organs' case-law the access to civil service is not a right guaranteed by the Convention (cf., e.g., Eur. Court H.R., Glasenapp judgment of 28 August 1986, Series A no. 104, p. 25, para. 48) and the applicant has not shown in what other way he was discriminated against.        It follows that this part of the application is incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the certificate issued to him by the Ministry of the Interior could not be reviewed by administrative courts.        However, the Commission finds that the final decision regarding this complaint had been given by the Supreme Court on 30 October 1992 and served on 14 December 1992, which is more than six months before the date on which the application was submitted.   The applicant therefore failed to comply with the six months' time limit laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application has to be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The Commission finds that in substance the application may raise an issue under Article 8 (Art. 8) of the Convention to the extent that the applicant complains of a violation of his rights following (i) the delivery of the certificate, and (ii) disclosure of its contents in the media.        Article 8 (Art. 8) of the Convention, as far as relevant, guarantees to everyone a right to respect for his private life.        The Commission does not deem it necessary to examine whether the facts complained of affected the applicant's rights guaranteed by Article 8 (Art. 8) of the Convention for the following reasons.        In the present case the courts refused the applicant's request to review the certificate as they lacked jurisdiction in the matter. The Constitutional Court rejected the request for review of the constitutionality of Act No. 451/1991 as the applicant lacks capacity to introduce proceedings on constitutional conflicts.        However, in accordance with the case-law of domestic courts the applicant could have sought redress in this respect before a civil court by means of an action for protection of his honour and reputation pursuant to Section 11 et seq. of the Civil Code.   Since the applicant failed to do so he has not complied with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.        It follows that this part of the application has to be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   4.    Finally, the applicant complains of a violation of Articles 17 and 60 (Art. 17, 60) of the Convention.   However, the Commission considers that these complaints do not raise any separate issue under the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber         President of the Second Chamber        (M.-T. SCHOEPFER)                             (H. DANELIUS)