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. 27061/95                       by Jaroslav KADUBEC                       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                  L. LOUCAIDES                  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 14 October 1994 by Jaroslav Kadubec against the Slovak Republic and registered on 20 April 1995 under file No. 27061/95;        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      application;   -     the observations submitted by the respondent Government on      8 January 1996 and the observations in reply submitted by the      applicant on 14 March 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovak citizen born in 1943.   He is unemployed and resides in Bratislava.        The facts of the case, as submitted by the parties, may be summarised as follows.        The particular circumstances of the case        On 25 August 1993 the police intervened in an incident in a spa house in Piestany and whilst doing so, they had to restrain the applicant and to handcuff him.   They gave notice of this incident to the Piestany Local Office (Obvodny úrad).        On 30 November 1993 the Piestany Local Office found that the applicant had committed a minor offence (priestupok) against public order pursuant to Section 47 (1) (a) and (c) of the Minor Offences Act ("the Act" - see "Relevant domestic law" below) in that he had disturbed boarders by his noisy behaviour and refused to obey police officers.   A fine of 1,000 Slovak crowns was imposed on the applicant pursuant to Section 47 (2) of the Act, and he was ordered to pay the costs of the proceedings of 150 Slovak crowns.        The applicant considered that the decision to impose a fine on him was unlawful and lodged an appeal with the Trnava District Office (Okresny úrad).   He alleged, inter alia, that his case had not been examined properly and that he could not defend himself as the decision at issue had been taken in his absence.   He also proposed to hear a witness.   On 21 January 1994 the Trnava District Office upheld the decision challenged by the applicant.        On 18 March 1994 the applicant lodged a complaint with the Constitutional Court (Ústavny súd).   He alleged that the administrative authorities dealing with his case had not established the facts correctly as he could not present his arguments.   The applicant further alleged that he was indigent and that for this reason the Constitutional Court should appoint a lawyer for him.        On 25 March 1994 the Constitutional Court asked the applicant to submit, within ten days, the power of attorney representing him in the proceedings.   On 30 March 1994 the applicant submitted proof of his indigence to the Constitutional Court and requested that a lawyer be appointed ex officio.        On 6 April 1994 the Constitutional Court informed the applicant that the Constitutional Court Act does not provide for the appointment of lawyers.   He was advised to request a lawyer to represent him.   The applicant was informed that if he failed to submit the power of attorney within 21 days his complaint would be rejected.        On 8 April 1994 the applicant requested the President of the Slovak Bar Association to appoint a lawyer for him.   On 12 April 1994 he completed his request by giving the names of five lawyers who had refused to represent him without charging him fees.   On 19 April 1994 the applicant was informed that his request for the appointment of a lawyer would be examined by the Bar Association at the beginning of May 1994.      On 19 April 1994 the applicant informed the Constitutional Court of these facts and requested that his complaint should be examined after a lawyer had been appointed for him.   After that date he has not received any reply from the Bar Association.        On 25 May 1994 the Constitutional Court rejected the applicant's complaint.   It noted that the complaint did not meet the formal requirements since the applicant had failed, despite two prior requests, to authorise a lawyer to represent him in the proceedings as required by Section 22 of the Constitutional Court Act.        Relevant domestic law        The applicant was fined for a minor offence against public order 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.        According to Section 47 (1) (a) and (c) of the Act, a person who disobeys a public officer acting in his official capacity or offends public decency commits a minor offence against public order.   According to Section 47 (2) of the Act such a minor offence is punishable with a maximum fine of 1,000 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.        Section 202 of the Criminal Code provides that a person who, in public, commits a gross indecency or causes a grave disturbance, in particular, by attacking another person, profaning a cultural or historical monument or a grave, or who disturbs in a serious manner a meeting or a ceremony shall be punished by a maximum prison sentence of two years or by a fine.        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.        Pursuant to Section 22 of the Constitutional Court Act (Zákon o organizácii Ústavného súdu Slovenskej republiky, o konaní pred ním a o postavení jeho sudcov) of 20 January 1993, participants to the proceedings before the Constitutional Court (if they are individuals or legal persons) have to be represented by a barrister or by a commercial lawyer.   COMPLAINTS        The applicant alleges a violation of Article 6 of the Convention in that his case was not examined by an independent and impartial tribunal established by law, and that he was deprived of the right to defend himself through legal assistance.        He also complains that he had no effective remedy before a national authority in this respect and alleges a violation of Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 14 October 1994 and registered on 20 April 1995.        On 19 October 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 8 January 1996.   The applicant replied on 14 March 1996.        On 23 January 1996 the Commission granted the applicant legal aid.   THE LAW        The applicant complains that his right to a fair hearing before an independent and impartial tribunal, to defend himself through legal assistance and to an effective remedy before a national authority was violated in the proceedings concerning the fine which he had to pay 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.      ...        3.     Everyone charged with a criminal offence has the following      minimum rights:      ...              c.     to defend himself in person or through legal      assistance of his own choosing or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require;      ..."                            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 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 does 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 submits that Article 6 (Art. 6) of the Convention is applicable and that its guarantees were not respected in the proceedings in which he was fined.        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 complaints cannot, therefore, 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.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits      of the case.           M. de SALVIA                           S. TRECHSEL       Deputy Secretary                          President      to the Commission                     of the Commission