CEDH · CASELAW;REPORTS;ENG — 30 octobre 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 27061/95                          Jaroslav Kadubec                               against                         the Slovak Republic                      REPORT OF THE COMMISSION                    (adopted on 30 October 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-14). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-9). . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 10-14). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 15-45) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 15-20). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law and practice           (paras. 21-45). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 46-93) . . . . . . . . . . . . . . . . . . . . 10        A.    Complaints declared admissible           (para. 46). . . . . . . . . . . . . . . . . . . . 10        B.    Points at issue           (para. 47). . . . . . . . . . . . . . . . . . . . 10        C.    As regards Article 6 para. 1 of the Convention           (paras. 48-84). . . . . . . . . . . . . . . . . . 10             a.    As to the applicability of Article 6 of the                Convention                (paras. 48-71) . . . . . . . . . . . . . . . 10             b.    As to compliance with Article 6 para. 1 of the                Convention                (paras. 72-83) . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 84). . . . . . . . . . . . . . . . . . . . 15        D.    As regards Article 6 para. 3 (c) of the Convention           (paras. 85-87). . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 87). . . . . . . . . . . . . . . . . . . . 15                          TABLE OF CONTENTS                                                             Page        E.    As regards Article 13 of the Convention           (paras. 88-90). . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 90). . . . . . . . . . . . . . . . . . . . 16        F.    Recapitulation           (paras. 91-93). . . . . . . . . . . . . . . . . . 16   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 17                                               [ORIGINAL VERSION]   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Slovak citizen, born in 1943 and resident in Bratislava.   3.    The application is directed against the Slovak Republic.   The respondent Government were represented by their Agent, Mr. R. Fico.   4.    The case concerns proceedings before administrative authorities leading to the imposition of a fine under the Minor Offences Act.   The applicant invokes Articles 6 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 14 October 1994 and registered on 20 April 1995.   On 19 October 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   The Government's 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 for the representation of his case.   6.    On 15 October 1996 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter.   On 21 October 1996 the Commission declared the application admissible.   7.    The text of the Commission's decision on admissibility was sent to the parties on 30 October 1996 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted observations on 18 December 1996, to which the applicant replied on 18 January 1997.   8.    On 21 October 1997 the Commission decided that there was no basis on which to apply Article 29 of the Convention.   9.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   10.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV   11.   The text of this Report was adopted on 30 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   13.   The Commission's decision on the admissibility of the application is annexed hereto.   14.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   15.   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).   16.   On 30 November 1993 an officer of the Piestany Local Office's legal department 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 (see "Relevant domestic law and practice" 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 Minor Offences Act, and he was ordered to pay the costs of the proceedings of 150 Slovak crowns.   17.   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 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.   18.   On 21 January 1994 the Trnava District Office dismissed the applicant's appeal.   Its decision was signed by the head of the legal department and stated, inter alia, that in proceedings relating to minor offences decisions are delivered by single staff members of the competent authority.   19.   On 18 March 1994 the applicant lodged a complaint with the Constitutional Court (Ústavny súd).   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.   20.   The applicant sought redress with the President of the Bar Association but was unable, within the time-limit set by the Constitutional Court, to find a lawyer who would be willing to represent him.   On 25 May 1994 the Constitutional Court rejected the complaint for the applicant's failure to instruct a lawyer to represent him in the proceedings as required by Section 22 of the Constitutional Court Act.   B.    Relevant domestic law and practice   Constitutional provisions   21.   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 may not be excluded from the jurisdiction of courts of law.   22.   Article 121 of the Constitution entitles the Government to grant a pardon in matters concerning minor offences.   Such a pardon was granted in 1990 and 1992.   23.   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.   Minor Offences Act   24.   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 in force at the relevant period.   25.   Section 1 of the Minor Offences Act defines its purpose as follows:   (Translation)        "Administrative authorities of the Slovak Republic 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 ...      and contravene public order and civic propriety."   (Original)        "Orgány státnej správy Slovenskej republiky a obce vedú obcanov      k tomu, aby dodrziavali zákony a ostatné právne predpisy a      respektovali práva spoluobcanov; dbajú najmä o to, aby obcania      nestazovali plnenie úloh státnej správy ... a nenarúsali verejny      poriadok a obcianske spolunazívanie."   26.   Section 2 (1) defines a minor offence under the Minor Offences Act as follows:   (Translation)        "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 this Act or another law, unless such act      represents a separate administrative offence punishable under      special legal rules or a criminal offence."   (Original)        "Priestupkom je zavinené konanie, ktoré porusuje alebo ohrozuje      záujem spolocnosti a je za priestupok vyslovne oznacené v tomto      alebo inom zákone, ak nejde o iny správny delikt postihnutelny      podla osobitnych právnych predpisov, alebo o trestny cin."   27.   Section 11 of the Minor Offences Act entitles the competent authorities to impose "sanctions" (sankcie) on the perpetrators of minor offences.   It reads as follows:   (Translation)        "1.   The following sanctions may be imposed for a minor offence:      a) reprimand,      b) fine,      c) prohibition to exercise a certain activity,      d) confiscation of an object.        2.   A sanction can be imposed either separately or in combination      with another sanction; a reprimand cannot be combined with a      fine.        3.   It is permissible to decide not to impose a sanction if the      mere fact that the minor offence was examined is sufficient to      reform its perpetrator."   (Original)        "1. Za priestupok mozno ulozit tieto sankcie:      a) pokarhanie,      b) pokutu,      c) zákaz cinnosti,      d) prepadnutie veci.        2. Sankciu mozno ulozit samostatne alebo s inou sankciou;      pokarhanie nemozno ulozit spolu s pokutou.        3. Od ulozenia sankcie mozno v rozhodnutí o priestupku upustit,      ak k náprave páchatela postací samotné prejednanie priestupku."   28.   Section 12 (1) of the Minor Offences Act provides:   (Translation)        "When determining the type and amount of the sanction, 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 should be taken into      account."   (Original)        "Pri urcení druhu sankcie a jej vymery sa prihliadne na závaznost      priestupku, najmä na spôsob jeho spáchania a na jeho následky,      na okolnosti, za ktorych bol spáchany, na mieru zavinenia, na      pohnútky a na osobu páchatela, ako aj na to, ci a akym spôsobom      bol za ten isty skutok postihnuty v ... disciplinárnom konaní."   29.   Section 47 governs minor offences against public order.   Pursuant to Section 47 (1) (a) and (c), 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), such a minor offence is punishable with a maximum fine of 1,000 Slovak crowns.   30.   Pursuant to Section 51 the proceedings concerning minor offences are governed, unless otherwise provided, by the Administrative Proceedings Act.   31.   Section 52 provides that the following administrative authorities are entitled to examine minor offences: a)    local offices (obvodné úrady), b)    police authorities if the minor offence was committed in breach      of the generally binding legal rules relating to the security of      road traffic, c)    other organs of State administration if a special law so      provides.   32.   Cases involving minor offences against public order are examined, pursuant to Section 58 (b) of the Minor Offences Act, by the police authorities which are subordinated to the Ministry of the Interior.   33.   Under Section 63 (1) the police authority submits to the competent administrative organ a report on the outcome of its examination of a case.   Such a report shall comprise, inter alia, a description of the relevant facts and shall specify which minor offence they are alleged to constitute.   34.   Section 73 provides:   (Translation)        "1. A citizen 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.        2.   A person accused of a minor offence 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 submissions and have recourse to      remedies.   He or she cannot be forced to make statements or to      plead guilty."   (Original)        "1. Obcan je obvineny z priestupku, len co správny orgán vykonal      voci nemu prvy procesny úkon. Na takého obcana sa hladí ako na      nevinného, kym jeho vina nebola vyslovená právoplatnym      rozhodnutím.        2. Obvineny z priestupku má právo vyjadrit sa ku vsetkym      skutocnostiam, ktoré sa mu kladú za vinu a k dôkazom o nich,      uplatnovat skutocnosti a dôkazy na svoju obhajobu, podávat návrhy      a opravné prostriedky. K vypovedi ani k priznaniu ho nemozno      donucovat."   35.   Section 77, so far as relevant, provides:   (Translation)        "The operative part of a decision by which an accused of a minor      offence is found guilty shall comprise also 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 or, as the case may be, the decision not to impose a      sanction (Section 11 para. 3)..."   (Original)        "Vyrok rozhodnutia o priestupku, ktorym je obvineny z priestupku      uznany vinnym, musí obsahovat tiez popis skutku s oznacením      miesta a casu spáchania priestupku, vyslovenie viny, druh a vysku      sankcie, prípadne rozhodnutie o upustení od ulozenia sankcie      (§ 11 ods. 3)..."   36.   Pursuant to Section 83 (1) of the Minor Offences Act, decisions on minor offences by which a fine exceeding 2,000 Slovak crowns was imposed, the exercise of a certain activity was prohibited for a period exceeding six months or an object of a value exceeding 2,000 Slovak crowns was confiscated can be reviewed by the courts.   In such cases the provisions of Section 244 et seq. of the Code of Civil Procedure on administrative judiciary are applied.   Local State Administration Act   37.   Section 1 (1) of Act No. 472/1990 on the Organisation of Local State Administration (Zákon o organizácii miestnej státnej správy), as amended, empowers District Offices and Local Offices to carry out local State administration falling within the competence of the Slovak Republic.   The exercise of local administration by the aforesaid authorities shall be managed and controlled by the Government.   38.   Pursuant to Section 6 (1), the head of the Local Office shall be appointed and revoked by the head of the District Office.   39.   In accordance with Section 8 (1), the head of the District Office shall be appointed by the Government upon the proposal of the Ministry of the Interior.   40.   The officers of Local and District Offices are subordinated to the heads of these offices and their contract of employment is governed, as in the case of other salaried employees, by the provisions of the Labour Code.   Code of Civil Procedure   41.   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.   Criminal Code   42.   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.   43.   Pursuant to Section 3 (4), 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.   44.   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.   45.   The Criminal Code refers to repressive measures for a criminal offence as "penalties" (tresty).   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   46.   The Commission has declared admissible the applicant's complaints that his right to a fair hearing before an independent and impartial tribunal was violated in the proceedings leading to the imposition of a fine on him, that he was deprived of the right to defend himself through legal assistance in these proceedings and that he had no effective remedy before a national authority in this respect.   B.    Points at issue   47.   The issues to be determined are the following:   -     whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention,   -     whether there has been a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, and   -     whether there has been a violation of Article 13 (Art. 13) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention        a.    As to the applicability of Article 6 (Art. 6) of the      Convention   48.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant,   as follows:        "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."   49.   The applicant alleges, in substance, that Article 6 (Art. 6) of the Convention is applicable to his case.   50.   The Government submit that the minor offence for which the applicant was fined has never fallen under criminal law in the Slovak legal system and that it cannot fall within the scope of the general criminal law as it lacks a serious character.   51.   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 it does not encourage punishment.   The Government therefore consider that the minor offence in question is not criminal in nature.   52.   Finally, the Government consider 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 fine imposed on the applicant amounted to 1,000 Slovak crowns, i.e. approximately one sixth of the then average monthly salary, and that it was the maximum fine which can be imposed for the minor offence in question.   The Government also submit that the imposition of a sanction under the Minor Offences Act is within the discretionary power of the administrative authority concerned, that sanctions for minor offences cannot be converted into a prison sentence and that they are not entered on a person's criminal record.   53.   The Commission recalls that in order to determine whether an offence qualifies as "criminal" for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6 (Art. 6), to the ordinary meaning of the terms of that Article and to the laws of the Contracting States (see Eur. Court HR, Garyfallou AEBE v. Greece judgment of 24 September 1997, to be published in Reports of Judgments and Decisions 1997, para. 32, with further reference).   54.   As to the first criterion, the Commission notes that in Section 2 (1) of the Minor Offences Act a distinction is expressly drawn between "minor offences" under the aforesaid Act, "other administrative offences" punishable under special legal rules and "criminal offences" which are punishable under criminal law.   55.   The Minor Offences Act refers to fines or other repressive measures for minor offences as "sanctions" (sankcie) whereas the Criminal Code classifies repressive measures for criminal offences as "penalties" (tresty).   56.   Furthermore, the treatment of minor offences is governed by the Administrative Proceedings Act and, in cases where judicial review is provided for, by the relevant provisions of the Code of Civil Procedure governing the administrative judiciary.   Proceedings relating to minor offences are, thus, distinct from criminal proceedings which are governed by the Code of Criminal Procedure.   In the Commission's view, the above facts indicate that Slovak law does not formally classify the minor offence for which the applicant was fined as criminal.   57.   However, the significance of the approach taken in domestic law is only relative.   The remaining two criteria, namely the nature of the offence in question and the nature and degree of severity of the penalty incurred by the person concerned, are factors of greater importance (see Eur. Court HR, Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 19, para. 52).   58.   In this respect, the Commission recalls that the aforesaid two criteria are alternative and not cumulative ones: for Article 6 (Art. 6) to apply by virtue of the words "criminal charge", it suffices that the offence in question should by its nature be "criminal" from the point of view of the Convention, or should have made the person concerned liable to a sanction which, in its nature and degree of severity, belongs in general to the "criminal" sphere.   This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a "criminal charge" (see Eur. Court HR, the Garyfallou AEBE v. Greece judgment cited above, para. 33).   59.   In this respect, the Commission recalls that the applicant was fined for a minor offence against public order under Section 47 (1) (a) and (c) of the Minor Offences Act on the ground that he had disturbed boarders in a spa house and refused to obey police officers.   60.   Section 2 (1) of the Minor Offences Act defines a minor offence as a "wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence".   Thus, the rule of law infringed by the applicant is directed not against a given group possessing a special status, but its provisions potentially affect the whole population.   61.   The aim of the Minor Offences Act, as defined in Section 1, is to "encourage the citizens to respect legal rules and the rights of other citizens" and to "ensure, in particular, that citizens do not ... contravene public order and civic propriety".   62.   In order to ensure this aim, administrative authorities are entitled, under Section 11 (1) of the Minor Offences Act, to impose a reprimand or a fine, to prohibit the exercise of a certain activity or to confiscate an object from the perpetrators of minor offences.   The Commission is of the opinion that the aforesaid sanctions are not only deterrent but also, by their very nature and the effect they are liable to have on the persons affected by them, punitive.   In the Commission's view, the inherently punitive aspect of these sanctions can be deduced, a contrario, from para. 3 of Section 11 under which the administrative authorities may decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator.   63.   In addition, the Minor Offences Act contains several provisions which, in the Commission's view, indicate that the minor offences it governs are of a criminal nature.   In particular, Section 73 provides for a certain number of procedural guarantees which are similar to those which are usually granted to persons accused of a criminal offence.   Thus an individual is considered as being accused of a minor offence as soon as the administrative authority undertakes the first procedural step against him or her and is considered innocent until his or her guilt has been established by a final decision; such a person 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 submissions, have recourse to remedies and cannot be forced to make statements or to plead guilty.   64.   Furthermore, under Section 77 of the Minor Offences Act, the operative part of a decision by which an accused of a minor offence is found guilty comprises, inter alia, the finding of guilt and the type and amount of the sanction.   65.   In determining the type and amount of the sanction the administrative authorities shall consider, under Section 12 (1) of the Minor Offences Act, 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 other proceedings.   The Commission recalls that similar criteria are set out in Section 3 (4) of the Criminal Code for the purpose of determining the degree of dangerousness of acts which are capable of constituting a criminal offence.   66.   The Commission also notes that Section 202 of the Criminal Code classifies as a criminal offence the fact that a person "commits a gross indecency or causes a gross disturbance".   The characteristics of such a criminal offence are similar, to a certain extent, to those of a minor offence under Section 47 (1) (c) of the Minor Offences Act.   67.   Under Section 135 (1) of the Code of Civil Procedure civil courts are bound, as in the case of offences under criminal law, by the decisions of administrative authorities that a minor offence was committed regardless of whether or not such a decision was reviewable by a court.   68.   Finally, the Commission recalls that pursuant to Article 121 of the Constitution, the Government is entitled to grant a pardon in matters relating to minor offences.   69.   The Commission is of the opinion that the general character of the rule of law infringed by the applicant, the purpose of the penalty which is both deterrent and punitive, and also the above mentioned specific features of the legislation governing minor offences and the proceedings relating thereto suffice to show that the offence in question was, in terms of Article 6 (Art. 6) of the Convention, criminal in nature.   As regards the respondent Government's argument that the minor offence in question lacked a serious character, the Commission recalls that it would be contrary to the object and purpose of Article 6 (Art. 6) if the States were allowed to remove from the scope of this Article a whole category of offences merely on the ground of regarding them as petty (see, mutatis mutandis, Eur. Court HR, the Öztürk v. Germany judgment cited above, p. 20, para. 53).   70.   In view of its above finding as to the criminal nature of the minor offence in question, the Commission does not consider it necessary to analyse also the seriousness of the sanction at stake.   71.   In conclusion, the Commission finds that the proceedings in question involved the determination of a "criminal charge". Accordingly, Article 6 (Art. 6) of the Convention is applicable in the present case.   b.    As to compliance with Article 6 para. 1 (Art. 6-1) of the      Convention   72.   The applicant submits that his right to a fair and public hearing before an independent and impartial tribunal has not been respected.   73.   The Government consider that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable and make no comments on the question whether or not its guarantees were respected in the proceedings under consideration.   74.   The Commission recalls that, as regards the guarantees provided for in Article 6 para. 1 (Art. 6-1) of the Convention, conferring the prosecution and punishment of minor offences on administrative authorities is not inconsistent with the Convention provided that the person concerned is enabled to take any decision thus made against him or her before a tribunal that does offer the guarantees of Article 6 (Art. 6) (see Eur. Court HR, the Öztürk v. Germany judgment cited above, pp. 21 and 22, para. 56, with further reference).   75.   The Commission further recalls that a body exercising judicial functions meets the requirements of a "tribunal" only if, inter alia, it is independent of the executive.   In determining whether a body can be regarded as "independent", account must be taken of the manner of appointment of its members, their terms of office, the existence of guarantees against outside pressures and the question as to whether there is the appearance of independence.   Security against the removal of members of the tribunal by the executive during their term of office is a necessary corollary of their independence (see Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 24, para. 55; Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37, with further reference).   76.   The Commission recalls that the applicant was involved in an incident in the course of which police officers restrained and handcuffed him following his failure to obey them.   His case was subsequently examined by the police department in Piestany.   In fact, Section 58 (b) entitles police authorities to examine cases involving minor offences against public order.   77.   The police department submitted a report on the applicant's case to the Piestany Local Office.   Section 63 (1) of the Minor Offences Act provides that such a report shall specify which minor offence the facts of a particular case are alleged to constitute.   78.   An officer of the Piestany Local Office's legal department examined the applicant's case and established that the applicant had committed a minor offence against public order pursuant to Section 47 (1) (a) and (c) of the Minor Offences Act in that he had disturbed other persons in a spa house and refused to obey police officers.   The applicant's appeal was dismissed by the head of the legal department of the Trnava District Office.   79.   Thus, the proceedings against the applicant were initiated by the police, i.e. an authority subordinated to the Ministry of the Interior. The applicant's case was subsequently examined by the Piestany Local and Trnava District Office, i.e. administrative authorities responsible for State administration and furtherance of the Government's policies. The respondent Government do not suggest that the aforesaid authorities acted in the applicant's case as "tribunals" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   80.   The Commission notes that the head of the Local Office is appointed by the head of the competent District Office and the latter by the Government upon the proposal of the Ministry of the Interior. The applicant's case was dealt with by the legal department officers of   both the Local Office and the District Office, i.e. salaried staff subordinated to the heads of those authorities.   Slovak law does not provide for a specific term of office of the employees of such authorities and their contract of employment is governed, as in the case of other employees, by the Labour Code.   81.   In these circumstances the Commission considers that the officers deciding on the applicant's case lacked the requisite appearance of independence from the executive.   Accordingly, the proceedings before the Piestany Local Office and the Trnava District Office did not comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   82.   The Commission notes that the administrative organs' decisions in the applicant's case were not reviewable by the general courts.   The applicant attempted to lodge a constitutional complaint pursuant to Article 127 of the Constitution but it was rejected as he had failed to appoint a lawyer representing him in the proceedings.   However, the respondent Government do not suggest that the applicant's constitutional complaint had any prospect of success and the Commission has before it no information that would indicate that the Constitutional Court had jurisdiction to review the applicant's case.   83.   Thus, under Slovak law the decisions of the administrative authorities in the applicant's case could not be subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission therefore finds that the applicant's right to a fair hearing before an independent and impartial tribunal established by law has not been respected.        CONCLUSION   84.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.    As regards Article 6 para. 3 (c) (Art. 6-3-c) of the Convention   85.   Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides:        "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;"      ...   86.   The Commission recalls that the guarantees under Article 6 para. 3 (Art. 6-3) develop in more detail the concept of a fair trial laid down in Article 6 para. 1 (Art. 6-1) of the Convention.   In the light of its wider examination of the issues arising under Article 6 para. 1 (Art. 6-1) and its finding above on the lack of independence of the administrative authorities dealing with the applicant's case, the Commission finds it unnecessary to examine this issue further.        CONCLUSION   87.   The Commission concludes, unanimously, that no separate issue arises under Article 6 para. 3 (Art. 6-3) of the Convention.   E.    As regards Article 13 (Art. 13) of the Convention   88.   The applicant further complains that he had no effective domestic remedy in respect of his complaints under Article 6 (Art. 6) of the Convention.   He alleges a violation of Article 13 (Art. 13) of the Convention which provides as follows:        "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."   89.   The Commission refers to the constant case-law of the Convention organs according to which in cases of the present kind Article 6 (Art. 6) constitutes the lex specialis in relation to Article 13 (Art. 13) whose requirements are less strict and are, accordingly, absorbed by those of Article 6 (Art. 6) (see Eur. Court HR, Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, pp. 45-46, para. 110).   It follows that a separate examination of the facts of the case under Article 13 (Art. 13) is not called for.        CONCLUSION   90.   The Commission concludes, unanimously, that the application does not raise a separate issue under Article 13 (Art. 13) of the Convention.   F.    Recapitulation   91.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 84).   92.   The Commission concludes, unanimously, that no separate issue arises under Article 6 para. 3 (Art. 6-3) of the Convention (para. 87).   93.   The Commission concludes, unanimously, that no separate issue arises under Article 13 (Art. 13) of the Convention (para. 90).       &#x