CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 avril 2004

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Pellonpää ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   L. Garlicki ,   Mrs   E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 17 November 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:     THE FACTS The applicant, Mr Vladimír Čanády, is a Slovakian national, who was born in 1956 and lives in Liptovský Mikuláš. He is a soldier by profession. The respondent Government were represented by their Agent, Mr   P.   Vršanský, succeeded by Mr   P.   Kresák as from 1 April 2003. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 22 May 1997 at 6.15 a.m. the applicant's neighbour damaged a fence and entered the applicant's land while fixing the connection of his house pipes to the gas supply in the street. The workers needed access to the applicant's land when attaching the pipes to the wall of the neighbour's house as the space between the house and the fence was too narrow. The applicant requested that the neighbour and the workers stop the works as he had not been notified and the neighbour had not shown that he had been authorised to do so. At 7.00 a.m. the applicant posted a letter to the mayor of Turany in which he asked for protection of his rights. As the neighbour and the workers refused to stop the works, the applicant cut through an electric extension connected to their electric hammer. Later he also hid a part of the hammer. At 8.30 a.m. the neighbour called the police. At 11.40 an employee of the municipal office in Turany presented a   photocopy of a building permit delivered to the applicant's neighbour on 19   May 1997. She also handed over a letter to the applicant. It was signed by the mayor of Turany and informed the applicant of the works. The applicant was asked to allow the neighbour to fix the connection. As the applicant still prevented the works from being carried out, the police from the police department in Sučany took him, with his consent, to a   military police station in Martin Podháj at noon on the same day. The applicant was handed over to the military police at about 12.30 p.m. He was asked to explain his action and returned back home at approximately 2   p.m. A record drawn up by the police from Sučany indicates that the applicant had been brought to the police station under Section 19(1)(a) and (b) of the Police Corps Act of 1993 as he had disregarded the instructions of the police and prevented his neighbour from carrying out works for which authorisation had earlier been given. On 4 June 1997 the applicant filed a criminal complaint against his neighbour. It was dismissed by the police department in Vrútky on 7 August 1997, and on 23 September 1999 a public prosecutor in Martin dismissed the applicant's complaint against this decision. On 9 August 1997 the Žilina Regional Police Directorate dismissed the applicant's complaint about his apprehension on 22 May 1997. On   6   October 1997 the inspection department of the Ministry of the Interior replied to the applicant that there had been no shortcomings in the examination of his complaint. On 7 July 1997 the Martin Office of Investigation charged the applicant with an offence in that he had tried to prevent his neighbour from having a   gas supply extension fixed. On 6 August 1997 the Banská Bystrica District Military Prosecutor quashed the decision of 7 July 1997. The prosecutor found that, in view of their character, the applicant's above actions did not constitute a criminal offence and that they could be qualified as minor offences falling under the Minor Offences Act of 1990. As a result, the case was transmitted to the rector of the Military Academy in Liptovský Mikuláš where the applicant was attached as a professional soldier. On 27 October 1997 the rector of the Military Academy in Liptovský Mikuláš issued a decision by which he imposed a fine of 1,000 Slovakian korunas (SKK) on the applicant under the Minor Offences Act of 1990. The decision stated that the applicant had committed a disciplinary offence under the Military Order and that his actions constituted a minor offence under Sections 49(1)(d) and 50(1) of the Minor Offences Act of 1990. According to the decision, the applicant had acted contrary to the rules of civic propriety in that he had cut through two electric wires belonging to a   building company and had forcibly detached a steel pipe. He had thereby rendered difficult works which had been authorised by a public authority and had disregarded his obligations under Article 127(3) of the Civil Code. Reference was made to the police case file. The applicant appealed. He claimed that the neighbour had entered his property without prior notification and that he had not been informed that the competent authorities had issued documents permitting the neighbour to proceed with the works from the applicant's plot. The applicant further alleged that the building permit had been flawed as he had not been a party to the proceedings leading to its delivery and that he had protected his property in accordance with the law. On 10 December 1997 the Ministry of Defence dismissed the applicant's appeal. In March 1998 the Minister of Defence refused to review the decision. The fact that the applicant had committed a minor offence was entered in his personal file. As a result the applicant was paid no premiums by his employer in 1997 and 1998. On 9 January 1998 the applicant requested the Bratislava III District Court to examine the lawfulness of the decision delivered by the Ministry of Defence on 10 December 1997. On 29 May 1998 the District Court found, with reference to Section 83(1) of the Minor Offences Act of 1990, that the decision in question could not be reviewed by courts. The proceedings were discontinued. The applicant appealed. On 26 November 1998 the Bratislava Regional Court discontinued the proceedings as an appeal was not available. On 29 June 1998 the Supreme Court refused to review the above decisions by which the applicant had been fined with reference to Article   248(2)(f) of the Code of Civil Procedure. In a letter of 30 December 1998 a public prosecutor in Martin admitted that the District Office in Martin had acted contrary to the Building Act in that it had not considered the applicant as a party to the proceedings concerning his neighbour's gas extension. The letter further stated that the extension had been built in accordance with the relevant regulations. The prosecutor therefore considered that no further action was necessary. On 23 March 1999 the applicant complained to the Constitutional Court that his right to judicial protection had been violated in that he could not have the administrative decisions imposing a fine on him reviewed by a   tribunal. He also alleged a violation of his constitutional right to protection against unjustified interference with his private and family rights. The applicant qualified his submissions as both a petition under Article 130(3) of the Constitution and a constitutional complaint. On 3 June 1999 the Constitutional Court dismissed both the petition and the constitutional complaint lodged by the applicant. In its decision the Constitutional Court recalled that it had declared unconstitutional Section 83(1) of the Minor Offences Act of 1990 by a finding of 15 October 1998. As that finding had no retroactive effect and since the judicial decisions in question had been taken in accordance with the law in force at the relevant time, they did not interfere with the applicant's constitutional right to judicial protection. The Constitutional Court found manifestly ill-founded the complaint about a violation of the applicant's right to respect for his private and family life relating to the proceedings before the rector of the military academy and the Ministry of Defence. B.     Relevant domestic law and practice 1. The Constitution At the relevant time, the following provisions governed the access of individuals to the Constitutional Court: Pursuant to Article 127, the Constitutional Court decides on complaints concerning final decisions made by, inter alia , central government authorities in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights falls within the jurisdiction of another court. Pursuant to Article 130(3), the Constitutional Court may start proceedings upon a petition (“ podnet ”) lodged by legal or natural persons alleging a violation of their rights. 2. The Civil Code Article 5 provides that a person disturbed in the enjoyment of his or her rights can claim protection before a State administration authority. The latter can take preliminary measures with a view to stopping the interference or restoring the original situation. Under Article 6, where there is imminent danger of an interference with a person's rights, the person concerned is entitled to prevent such an interference by reasonable means. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. Pursuant to Article 13(1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person's dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person's rights occurred. Article 127(3) provides, inter alia , that the owners of neighbouring plots are obliged to allow the owner of a plot to enter their property to the extent that it is strictly necessary for the purpose of maintenance of his or her plot. 3. The Minor Offences Act of 1990 Section 49, as in force at the relevant time, governs minor offences against civic propriety. Its paragraph 1(d) provides that 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 unjustifiably accusing another person of a minor offence, by annoyances or other rude behaviour. Under section 49(2) such a minor offence is punishable with a   maximum fine of SKK 3,000. Section 50(1) provides that a person who deliberately damages other persons' property or attempts to do so commits a minor offence against property provided that the damage does not exceed twice the minimum monthly salary as defined in the relevant law. Paragraph 2 of Section 50 provides that such a minor offence may be sanctioned by a maximum fine of SKK 10,000. According to section 83(1), decisions on minor offences imposing a fine exceeding SKK 2,000, prohibiting the exercise of a certain activity for a   period exceeding six months or confiscating an object having a value exceeding SKK 2,000 can be reviewed by the courts. In such cases the provisions of Article 244 et seq. of the Code of Civil Procedure on administrative jurisdiction are applied. In a finding of 15 October 1998 the Constitutional Court held, in proceedings brought by the General Prosecutor, that Section 83(1) of the Minor Offences Act of 1990 was unconstitutional and contrary to Article 6 § 1 of the Convention to the extent that it limited the judicial review of decisions on minor offences to, inter alia , fines exceeding SKK   2,000. The Constitutional Court's finding was published in the Collection of Laws on 23 October 1998. As from this date, the relevant provisions of Section 83(1) of the Minor Offences Act of 1990 became ineffective. 4. The Code of Civil Procedure Article 248(2)(f) provides that courts shall not review administrative decisions imposing sanctions on members of armed forces unless such sanctions restrain the latter's personal liberty or result in termination of their service. 5. The Police Corps Act of 1993 Section 19(1)(a) entitles the police to apprehend a person who directly endangers his or her own or other persons' health, life or property. Paragraph 1(b) of   Section 19 provides that a person can be apprehended when he or she was caught while committing a minor offence, where there is a justified fear that he or she would continue doing so or where it is necessary for the clarification of the situation. COMPLAINTS 1. The applicant complained under Article 6 § 1 of the Convention that his right of access to a court had been violated in that he could not have the decisions by which he had been fined reviewed by an independent and impartial tribunal. 2. The applicant alleged a violation of Article 8 of the Convention in that the rector of the Military Academy and the Ministry of the Defence had not established the relevant facts of the case and had decided arbitrarily that he had committed a minor offence.    3. Finally, the applicant complained under Article 5 of the Convention that he had been apprehended by the police and that the competent authorities had failed to duly investigate this incident. THE LAW 1. The applicant complained that his right of access to a court had been violated in that he could not have the decisions by which he had been fined reviewed by a court. He relied on Article 6 §   1 of the Convention the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair ... hearing ... by an independent and impartial tribunal established by law.” The Government contended that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention as he had not filed his constitutional complaint in accordance with the formal requirements. They pointed out, in particular, that the constitutional complaint had been filed after the expiry of the statutory two-months' time-limit and that in it the applicant had not requested that the administrative decisions on the fine be quashed. The applicant disagreed. The Court notes that the Constitutional Court did not reject the applicant's submissions for his failure to comply with the formal requirements. It addressed the substance of the applicant's complaint and found no violation of the applicant's right to have his case examined by a   tribunal. In these circumstances, this complaint cannot be rejected for non-exhaustion of domestic remedies. As to the merits, the Government admitted that the applicant's complaint was not manifestly ill-founded. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2. The applicant complained that his right to respect for his private and family life had been violated in that he had been arbitrarily fined for an offence which he had not committed. He relied on Article 8 of the Convention the relevant part of which provides: “1.     Everyone has the right to respect for his private and family life, ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Government argued that the applicant had not exhausted domestic remedies as he had not sought redress by means of an action for protection of his personal rights pursuant to Article 11 et seq. of the Civil Code. As to the merits, the Government maintained that the applicant had failed to comply with his obligations under Article 127(3) of the Civil Code whereby he had committed a minor offence. In their view, the fine had been imposed in accordance with the relevant law, it had pursued the legitimate aim of protecting the rights and freedoms of others, and it could be regarded as proportionate to the legitimate aim pursued. The applicant maintained that he could not effectively challenge the alleged flaws in the procedure before the administrative authorities by means of an action under Article 11 et seq. of the Civil Code. As to the merits, he contended, with reference to Articles 5 and 6 of the Civil Code, that he had lawfully protected his property against unjustified intrusion by his neighbour. He submitted, in particular, that the neighbour had not informed him about the works and that he had not asked the applicant to let him enter his property, that Article 127(3) of the Civil Code was not applicable to the case, that the building permit delivered to the neighbour had been flawed and void, that the rector of the military academy relied on witness statements included in the police case file which had not been obtained in accordance with the law, and that the decisions relating to the fine were arbitrary. He concluded that the interference in question had not been necessary in a democratic society within the meaning of paragraph 2 of Article 8 of the Convention. The Court does not consider it necessary to determine whether the applicant exhausted domestic remedies as, in any event, this part of the application is inadmissible for the following reasons. The applicant seeks to obtain a finding of fact in that he alleges that the administrative decisions concerning the fine imposed on him were arbitrary and contrary to the facts of the case. However, that is not within the Court's province. In accordance with Article 19 of the Convention, the only task of the Court is to ensure the observance of the obligations undertaken by the Parties in the Convention. According to its established case-law, it is for the domestic authorities to establish the facts of a case in the light of the arguments and evidence submitted to them and the Court is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see, mutatis mutandis , Garcia Ruiz v. Spain [GC], no 30544/96, ECHR 1999-I, p. 109, § 28). In considering the present case under Article 8 of the Convention, the Court notes that the applicant was fined on the ground that he had committed a minor offence against civic propriety and against the property of others. The administrative authorities held, with reference to the police case file, that the applicant had cut through electric wires belonging to a   company and that he had forcibly detached a pipe from his neighbour's house. Assuming that the fine imposed on the applicant constituted an interference with his right to respect for his private life, the Court notes that it had a legal basis, namely Sections 49(1)(d) and 50(1) of the Minor Offences Act of 1990. Its purpose was to sanction the applicant for damaging other person's property and for disobeying public authorities. It can thus be said to have pursued the legitimate aims of protecting the rights of others and of preventing disorder. Taking into account that a margin of appreciation is left to the Contracting States in similar matters and considering the impugned facts in the light of the case as a whole, the Court considers that the interference was not disproportionate to the legitimate aim pursued. In this context the Court cannot attach decisive weight to the applicant's arguments relating to the flaws in the procedure concerning the delivery of the building permit to his neighbour and that he was entitled to personally prevent the neighbour from carrying out the works.   It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3. Finally, the applicant complained that he had been deprived of liberty by the police and that the competent authorities had failed to duly investigate this incident. He relied on Article 5 of the Convention which in its relevant part provides: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...   (b)     the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” The Government pointed out that the police had restricted the applicant's freedom of movement only for several hours so that the works on his neighbour's gas extension could be carried out. In their view, the applicant was not deprived of liberty within the meaning of Article 5 § 1 of the Convention in that context. In any event, the applicant could have obtained redress by means of an action for damages pursuant to Section 18 of the State Liability Act of 1969 or, in the alternative, by means of an action under Article 11 et seq. of the Civil Code. The applicant disagreed and maintained that he had been deprived of liberty contrary to Article 5 § 1 of the Convention. The Court does not consider it necessary to determine whether the applicant was deprived of his liberty within the meaning of Article 5 § 1 or whether he exhausted domestic remedies as, in any event, the alleged interference occurred on 22 May 1997 and the final decision relating to this issue was taken by the inspection department of the Ministry of the Interior on 6   October 1997. As the application was filed on 17   November 1999, this complaint was introduced after the expiry of the six months' time-limit laid down in Article 35 § 1 of the Convention. It follows that this complaint is introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant's complaint under Article 6 § 1 of the Convention concerning the alleged violation of his right of access to a court; Declares the remainder of the application inadmissible.   Michael O'Boyle   Nicolas Bratza   Registrar   President