CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 mars 2005

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Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 16 October 2001, Having deliberated, decides as follows: THE FACTS The applicants, whose particulars appear in the appendix, were represented before the Court by Mr Ľ. Mráz, a lawyer practising in Bratislava. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants had originally served in the Police. On termination of their service they became entitled to a special monthly allowance for time served ( príspevok za službu ) pursuant to section 98 et seq. of the Act on Service in the Federal Police Corps (Law no. 334/1991 Coll., as amended). The allowance was paid to them by the Social Security Agency (“the Agency”) of the Ministry of the Interior (“the Ministry”) and its amount was calculated as a percentage of the applicants' monthly salary at the time of the termination of their service. The percentage depended on the number of the years served. Under section 98 (2) of Law no. 334/1991 Coll. the entitlement to the allowance expired once the officer in question recommenced “service”. The term “service” was understood to include also service in the Slovak Intelligence Service ( Slovenská informačná služba - “the SIS”). It was the duty of the officer receiving the allowance to   report the recommencement of “service” to the Agency within 8 days. At various dates in 1995, 1996 and 1997 the individual applicants started to work for the SIS. They were subject to an order of the Director (“the Director”) of the SIS no. 39/1996 which forbade them to report the recommencement of their “service” to the Agency so that their affiliation with the SIS would be concealed. The applicants thus continued receiving the allowance from the Agency (“the paid allowance”). At the same time they were receiving a salary from the SIS. The SIS was however withholding a part of this salary (“the withheld salary”) in an amount equal to the paid allowance. The applicants understood that the SIS would transfer the withheld salary to the State budget. At various dates in 1998 and 1999 the applicants' service in the SIS terminated and the latter reported the termination to the Agency. The Agency subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title. The applicants unsuccessfully challenged the decision before the Ministry. The applicants J. K. and F. B. refused to accept the debt and it was collected from them by a judicial enforcement officer. The remaining applicants commenced paying the amounts owed voluntarily in instalments. The applicants then lodged demands with the SIS for repayment of the withheld salary. As their demands were not met, they lodged a claim with the Bratislava III District Court ( Okresný súd ) and also sought interest for late payment of the principal amount. In several separate decisions taken between August 2000 and March   2001 the District Court found that it had no jurisdiction to deal with the applicants' claims against the SIS and that the body to determine the matter was the Director. The District Court based its finding on sections   1   (3), 3 and 231 et seq. of the Act on Service in the Police, the SIS, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended) and section 22 (b) of the Act on the Slovak Intelligence Service (Law no. 46/1993 Coll., as amended). The District Court thus referred the actions under Article 104 § 1 of the Code of the Civil Procedure to the SIS for a determination by its Director and discontinued the judicial proceedings in their respect. The Bratislava Regional Court ( Krajský súd ) upheld the decision on appeal. On numerous subsequent occasions applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests. Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them. In late 2001 the SIS transferred an amount of money equal to the withheld salary to the Agency. In substance this amount was identical to the paid allowance. In 2002 the Agency returned to the applicants the part of the paid allowance which they had already repaid in the meantime. The SIS also later paid to the applicants J. K. and F. B. the costs of the enforcement of their debt to the Agency. B.     Relevant domestic law and practice 1.     Code of the Civil Procedure and practice of its application Chapter ( Časť ) 5 governs the administrative judiciary. In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrative ‑ law actions under Section ( Hlava ) 2 of that Chapter and administrative ‑ law appeals under Section 3 of that Chapter. From 1   January   2002 the relevant provisions of this Chapter were amended by Law no. 501/2001 Coll. in that administrative tribunals also have the jurisdiction to review the “official conduct” of public administration authorities. Law no. 424/2002 Coll. further amended the provisions of this Chapter by defining detailed rules concerning actions against the inactivity of authorities of public administration. These rules are laid down in a new Section 4 and entered into force on 1 January 2003. By virtue of Article 244 § 3 the notion of “official conduct” also includes inactivity of the administrative authority concerned. Pursuant to Article 247 § 2 administrative tribunals are entitled to decide in administrative ‑ law actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies. Under Article 244 § 4 in conjunction with Article 250t any natural or legal person who alleges that an authority of public administration is not pursuing a matter, contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed time limit which cannot be longer than three months. Under Article 250u a failure to comply with the order can be sanctioned by a fine of up to 100,000 Slovakian korunas. In its judgment ( rozsudok ) of 23 May 2002 (file no. 7 Sž 24/02) the Supreme Court found that the Ministry of Finance had been inactive in a set of administrative proceedings and ordered that the Ministry give a final decision in the matter within 30 days from delivery of its judgment. In a resolution ( uznesenie ) of 16 June 2004 (file no. 23 S 102/03) the Banská Bystrica Regional Court found that the Banská Bystrica Land Registry Office wrongfully failed to determine the plaintiff's objections in land adjustment proceedings which were conducted before that office. The Regional Court ordered that the Land Registry Office determine the objections within 60 days and awarded the plaintiff reimbursement of her costs. 2.     Civil Code The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code. According to Article 11 any natural person has the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics. Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction (Article 13 § 1). 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 have been considerably diminished, the injured person is entitled to financial compensation for non-pecuniary damage. COMPLAINTS 1.     The applicants complained under Article 6 of the Convention that they had no access to a tribunal compatible with the guarantees of that Article in respect of their claims against the SIS in view of the fact that ordinary courts had no jurisdiction over such claims and the Director had refused to entertain them properly and to determine them by a formal decision. In particular the applicants complained that it was thus impossible for them to claim compensation for late payment of the principal amounts, their legal costs and the moral damage which they had suffered. 2.     The applicants further complained under Article 1 of Protocol No. 1 that they had been subjected to the order of the Director no. 39/1996 which in their view contravened the provisions of Law no. 334/1991 Coll. concerning the special allowance in question. Under the same provision they further complained that the corresponding part of their salaries had been withheld from them, that they had been made to repay the paid allowance to the Agency and that there was no way for them to claim any compensation from the SIS, in particular in respect of the late payment of the principal amounts, the legal costs and the moral damage. 3.     The applicants finally complained under Article 13 of the Convention that there had been no effective remedy available against the order of the Director no. 39/1996. THE LAW 1.     The applicants complained of lack of access to a court contrary to Article 6 of the Convention which, in so far as relevant, provides that: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair and public hearing ... by an independent and impartial tribunal established by law.” The Court observes that the applicants asserted their claims against the SIS by means of civil actions lodged with ordinary courts. In their actions they reclaimed the amounts of money which had been withheld from their salaries and interest for late payment. Ordinary courts of two instances found and duly reasoned with reference to the relevant laws that they had no jurisdiction to examine the actions and that the authority competent to do so was the Director of the SIS. The ordinary courts then referred the actions to the latter for a determination. The applicants argued that the Director had arbitrarily refused to deal with the claims in an official way and avoided determining them in a formal decision. In this respect the Court would note that Section 4 of Chapter 5 of the Code of the Civil Procedure provides for a special remedy in the form of an action against the public administration authorities for “failure to act”. By means of such an action the applicants could seek a judicial order to the Director to determine their case within a fixed time limit on pain of financial penalty. The Court further observes that Section 2 of Chapter 5 of the Code of the Civil Procedure provides for a possibility of challenging the final decisions of authorities of public administration by means of administrative law actions. The Court has found no reasons why the applicants could not assert effectively any of their claims which had a basis in the domestic legal system by way of actions as above. As to the applicants' specific argument that they cannot obtain compensation for their moral damage, the Court notes that the applicants have not substantiated the nature and extent of such damage on their part. Should for any reason the assertion of their claims against the SIS as described above not have been sufficient, the applicants had a further option, namely to seek protection of their personal integrity under Article   s   11 et seq. of the Civil Code. The Court finds that, in these circumstances, the complaint under Article   6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicants further complained of a violation of their property rights in connection with order of the Director no. 39/1996, the withholding of a part of their salary by the SIS and the fact that they had to repay the paid allowance to the Authority without being able to obtain any compensation from the SIS. They rely on Article 1 of Protocol No. 1 which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (a)     In so far as the applicants complained of the order no. 39/1996, the Court observes that they were subject to this order during their service in the SIS which ended in 1998. The application was however submitted in 2001. 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. (b)     As to the complaint that the applicants had to repay to the Agency the allowance which had once been paid to them, the Court notes that in late 2001 the SIS settled the paid allowance with the Agency and that in 2002 the latter paid the applicants the difference which they had returned in the meantime. Besides that, the SIS paid the applicants J. K. and F. B. the costs of the enforcement of Agency's claim against them. In these circumstances the Court finds that the applicants can no longer claim to be victims within the meaning of Article 34 of the Convention of a   violation of their rights protected under Article 1 of Protocol No. 1 in connection with the repayment of the above part of the paid allowance to the Agency. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (c)     The Court considers that the complaints under Article 1 of Protocol   No. 1 of the withholding of a part of the applicants' salary and the alleged impossibility to obtain full compensation from the SIS have the same factual background as the complaint under Article 6 of the Convention concerning the lack of access to court which the Court has found inadmissible above for non-exhaustion of domestic remedies. The Court finds no reasons for reaching a different conclusion in respect of the complaint under Article 1 of Protocol No. 1. It follows that this complaint must be rejected under Article 35 §§ 1 and   4 of the Convention for non-exhaustion of domestic remedies. 3.     The applicants finally complained that they had no remedy at their disposal in respect of the order of the Director of the SIS no. 39/1996 contrary to Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] 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 Court notes that this complaint has the same factual background as the complaint about the order no. 39/1996 which the applicants made under Article 1 of Protocol No. 1. The latter complaint has been found inadmissible as being belated and the Court finds no reasons for reaching a   different conclusion in respect of the complaint under Article 13 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 the application inadmissible.   Michael O'Boyle   Nicolas Bratza   Registrar   President APPENDIX LIST OF THE APPLICANTS   1. Mr O. M., a Slovakian national born in 1958, resides in Bratislava.   2. Mrs V. J., a Slovakian national born in 1950, resides in Bratislava.   3. Mr Z. B., a Slovakian national born in 1946, resides in Bratislava.   4. Mr J.H., a Slovakian national born in 1956, resides in Bratislava.   5. Mr J. K., a Slovakian national born in 1953, resides in Bratislava.   6. Mr J. O., a Slovakian national born in 1951, resides in Bratislava.   7. Mr F. B., a Slovakia national born in 1940, resides in Levice.