CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1996

.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. 26138/95                       by I. L.                       against the Slovak Republic        The European Commission of Human Rights sitting in private on 21 October 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              Mr.    M. de SALVIA, Deputy Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 13 June 1994 by I. L. against the Slovak Republic and registered on 6 January 1995 under file No. 26138/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 19 October 1995 to communicate the      applicant's complaints concerning the proceedings leading to the      imposition of a fine and to declare inadmissible the remainder      of the application;   -     the observations submitted by the respondent Government on      8 January 1996 and the observations in reply submitted by the      applicant on 20 January, 12 and 22 March, 21 June and      5 August 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak citizen born in 1953.   He is a software programmer and resides in Dubnica nad Váhom.        The facts of the case, as submitted by the parties, may be summarised as follows.        The particular circumstances of the case        Since 1989 the applicant has been living in a block of flats owned by a co-operative.   In June 1992 he requested, pursuant to a newly adopted legislation, that the flat should be sold to him.        Since then his neighbours and other individuals have disturbed him by noisy behaviour, mockery, offences and threats.   On several occasions the door and windows of his flat and his letter box were damaged.   The applicant considers that the purpose of these interferences is to dissuade him from buying the flat.        On several occasions, the applicant asked the police to investigate the disturbances and to prosecute the responsible persons. The police informed the applicant that the alleged facts had not been established.   They found no evidence of an offence or a minor offence and terminated the investigation.   On 15 April 1994 the police gave notice of these facts to the Dubnica nad Váhom Local Office (Obvodny úrad).        On 11 May 1994 the latter found that the applicant had committed a minor offence (priestupok) pursuant to Section 49 (1) (d) of the Minor Offences Act ("the Act" -   see "Relevant domestic law" below) in that he had accused without justification family B. of causing nuisance.   The applicant was fined 300 Slovak crowns and ordered to pay the costs of the proceedings of 150 Slovak crowns.   On 28 July 1994 the Povazská Bystrica District Office (Okresny úrad) upheld this decision.        On 16 August 1994 the applicant lodged a complaint with the Constitutional Court (Ústavny súd).   In his submissions of 5 October 1995 he alleged, inter alia, a violation of Article 6 of the Convention in that there had been no fair and public hearing in his case, and that the administrative authorities dealing with the case lacked impartiality.        On 24 November 1994 the Constitutional Court dismissed the applicant's constitutional complaint as being manifestly ill-founded. The Constitutional Court held, inter alia:   (Translation)        "A minor offence is characterised, in general, by a wrongful breach of law or legal obligations in different spheres of public administration which represents a minor danger for the society. Because of its character, a minor offence is not subject to examination by a court...   In accordance with the Minor Offences Act, the examination of minor offences comes within the competence of administrative authorities.   Pursuant to Section 83 of the Minor Offences Act, in conjunction with Section 244 et seq. of the Code of Civil Procedure, the lawfulness of administrative organs' decisions on minor offences can be reviewed by courts only in cases where a fine exceeding 2,000 Slovak crowns has been imposed, the exercise of a certain activity has been prohibited for a period exceeding six months or an object of a value exceeding 2,000 Slovak crowns has been confiscated.   The aforesaid provision of the special act governing the minor offences, is also fully binding on the Constitutional Court of the Slovak Republic."   (Original)        "Priestupok je vo vseobecnosti charakterizovany ako zavinené porusenie práva, resp. právnych povinností na jednotlivych úsekoch státnej správy s mensou spolocenskou nebezbecnostou. Tento charakter priestupku ho vylucuje z uplatnovania zodpovednosti pred súdom... Podla zákona o priestupkoch prejednávanie priestupkov patrí do pôsobnosti orgánov státnej správy. Súdy preskúmavajú podla ustanovenia § 83 zákona o priestupkoch v spojitosti s ustanoveniami § 244 a nasledujúcimi Obcianskeho súdneho poriadku zákonnost rozhodnutia o priestupku iba v prípade, ak bola ulozená pokuta vyssia ako 2 000 Sk, alebo zákaz cinnosti na cas dlhsí ako sest mesiacov, alebo prepadnutie alebo zhabanie veci, ktorej hodnota presahuje 2 000 Sk. Citované ustanovenie osobitného zákona o priestupkoch platí v celom rozsahu aj pre Ústavny súd SR."        Relevant domestic law        The applicant was fined for a minor offence against civic propriety pursuant to the Minor Offences Act (Zákon o priestupkoch) of 28 August 1990 as amended.   The following provisions of the Act were applicable to the applicant's case during the relevant period.        In accordance with Section 1 of the Act, administrative 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 or contravene public order and civic propriety.        Pursuant to Section 2 (1) of the Act, 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 the Minor Offences Act or another act, unless such act represents a separate administrative offence punishable under special legal rules or a criminal offence.        The Act refers to repressive measures for minor offences as "sanctions" (sankcie). Repressive measures for offences under the Criminal Code are referred to as "penalties" (tresty).        Section 11 (1) of the Act provides for the following sanctions for a minor offence: a) reprimand, b) fine, c) prohibition to exercise a certain activity, d) confiscation of an object.        Section 11 (2) provides that a sanction can be imposed either separately or in combination with another sanction.   However, a reprimand cannot be combined with a fine.        Pursuant to Section 11 (3) of the Act, an administrative authority can decide not to impose a sanction if it considers that the mere fact that it has dealt with the minor offence is sufficient to reform its perpetrator.        Section 12 (1) of the Act provides that, when deciding on the type and amount of the sanction, the authority concerned shall take into account 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.        Section 49 of the Act governs minor offences against civic propriety.   Pursuant to Section 49 (1) (d) a minor offence is committed by a person who deliberately offends against civic propriety by threat of bodily harm, by causing minor bodily injury, by unjustifiedly accusing another person of a minor offence, by annoyances or other rude behaviour.   According to Section 49 (2) such a minor offence is punishable with a maximum fine of 3,000 Slovak crowns.        Pursuant to Section 51 of the Act, the proceedings concerning minor offences are governed, unless otherwise provided, by the Administrative Proceedings Act.        According to Section 73 (1) of the Act, a person 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.        Section 73 (2) provides that an accused 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 suggestions and lodge remedies.   An accused cannot be forced to make statements and to plead guilty.        Pursuant to Section 77 of the Act, the operative part of a decision by which an accused is found guilty of a minor offence shall comprise, inter alia, 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 and, as the case may be, the decision not to impose a sanction in accordance with Section 11 (3) of the Act.        Pursuant to Section 83 (1) of the Act, certain decisions on minor offences (imposition of a fine exceeding 2,000 Slovak crowns, prohibition on the exercise of a certain activity for a period exceeding six months or the confiscation of an object of a value exceeding 2,000 Slovak crowns) can be reviewed by the courts.   In such cases the provisions of Section 244 et seq. of the Code of Civil Procedure on administrative judicature are applied.        Pursuant to Section 135 (1) of the Code of Civil Procedure, courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence, a minor offence or another administrative offence punishable under special rules has been committed.        Section 3 (1) of the Criminal Code defines a criminal offence as an act which is dangerous to society and the characteristics of which are laid down in the Criminal Code.   However, pursuant to Section 3 (2) of the Criminal Code, an act whose dangerousness is negligible is not a criminal offence even if it has the characteristics of the latter.      Pursuant to Section 3 (4) of the Criminal Code, the degree of dangerousness of an act is determined, in particular, by the importance of the protected interest which was affected by that act, by the circumstances and the way in which the act was committed and its consequences, by the person of its perpetrator, the degree of his or her guilt and by his or her motive.        Article 46 para. 2 of the Constitution guarantees to everybody who claims to have been denied his or her rights through a decision made by a public authority the right to turn to a court of law and have the legality of the decision reviewed, unless otherwise provided by law.   The review of decisions in matters of fundamental rights and freedoms shall not be excluded from the jurisdiction of courts of law.        Article 121 of the Constitution entitles the Government to grant a pardon in matters concerning minor offences.        Pursuant to Article 127 of the Constitution, the Constitutional Court decides on complaints about final decisions made by, inter alia, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.   COMPLAINTS        The applicant alleges that his right to a fair hearing before an independent and impartial tribunal established by law, as guaranteed by Article 6 of the Convention, was violated in the proceedings leading to the imposition of a fine on him.   He also alleges a violation of Article 13 of the Convention in this respect.        The applicant further complains that in the proceedings in which he was fined he was discriminated against on the ground of being of Czech origin.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 June 1994 and registered on 6 January 1995.        On 19 October 1995 the Commission decided to communicate the applicant's complaints concerning the proceedings leading to the imposition of a fine on him to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 8 January 1996.   The applicant replied on 20 January 1996.   He submitted further observations on 12 and 22 March, 21 June and 5 August 1996.   THE LAW   1.    The applicant complains that his right to a fair hearing by an independent and impartial tribunal and his right to an effective remedy before a national authority was violated in the proceedings in which he was fined under the Minor Offences Act.   He alleges a violation of Articles 6 and 13 (Art. 6, 13) of the Convention which provide, so far as relevant, as follows:                           Article 6 (Art. 6)        "1.    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.      ..."                            Article 13 (Art. 13)        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Government submit that Article 6 (Art. 6) of the Convention is not applicable to the proceedings at issue.   In particular, they point out that the minor offence for which the applicant was fined does not fall under criminal law in the Slovak legal system.        In the Government's view, the act for which the applicant was fined lacks a serious character and cannot also constitute a breach of the general criminal law.   They contend, with reference to Section 1 of the Minor Offences Act, that the purpose of the latter is to prevent wrongful acts of an administrative nature in the exercise of the public administration and in relations between citizens, and that the Act does not encourage punishment.   They therefore consider that the minor offence at issue is not criminal in nature.        Finally, the Government   contend that the nature and degree of severity of the penalty incurred by the applicant do not warrant classifying the minor offence at issue as criminal, either.   They point out, in particular, that the imposition of a sanction under the 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 disagrees and alleges, in substance, that his rights guaranteed by Articles 6 and 13 (Art. 6, 13) of the Convention were violated.        After an examination of these issues in the light of the parties' submissions, the Commission considers that they raise questions of fact and law, including the question of the applicability of Article 6 (Art. 6) of the Convention, which can only be determined by an examination of the merits.   It follows that the applicant's aforesaid complaints cannot be declared inadmissible as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds of inadmissibility have been established.   2.    The applicant further alleges that the authorities dealing with his case discriminated against him on the ground that he is of Czech origin.   He alleges a violation of Article 14 (Art. 14) of the Convention which reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission finds, insofar as the matter complained of has been substantiated and is within its competence, that in the present case there is no appearance of discrimination contrary to Article 14 (Art. 14) of 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 INADMISSIBLE the applicant's complaint under Article 14      of the Convention;        DECLARES ADMISSIBLE, without prejudging the merits, the      remainder of the application.           M. de SALVIA                           S. TRECHSEL       Deputy Secretary                          President      to the Commission                      of the Commission