FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16926/03 
by Ľubomír GERGEL 
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 4 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
 Mr M. O’Boyle, Section Registrar
Having regard to the above application lodged on 23 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ľubomír Gergel, is a Slovakian national of Roma ethnic origin. He was born in 1950 and lives in Zvolen. He was represented before the Court by Mr A. Dobrushi of the European Roma Rights Center in Budapest and Mr C. Igboanusi of the League of Human Rights Advocates in Bratislava.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 March 2001 two Railway Police officers brought the applicant to their premises at the Zvolen railway station for the alleged purpose of checking his identity papers. On the way to the police station the officers insulted the applicant with racist remarks and one of them hit him across the face.

During the interrogation at the police station one officer kicked the applicant in the head, slapped him across the face, and while the applicant was on the floor, the officers kicked him repeatedly in the chest. The officers stole 1,500 Slovak korunas (SKK) from the applicant.

The applicant suffered a number of injuries including severe injuries to one kidney, contusion of his chest and face and a broken rib. He had to be treated and remained incapable to work for 42 days after the incident.

On 20 March 2001 the applicant tried to file a complaint, but the Railway Police officers at the Zvolen refused to accept it. On 27 March 2001 the applicant filed a complaint with the District Prosecutor in Zvolen. The latter transferred the complaint to the Railway Police Office in Zvolen. He also informed the Inspection Section at the Ministry of the Interior’s regional office in Banská Bystrica of the police officers’ refusal to receive the applicant’s complaint on 20 March 2001.

On 8 June 2001 a Railway Police investigator informed the applicant that the matter was being treated as an internal disciplinary investigation as there was no indication that an offence had been committed. In reply to the applicant’s complaint, the public prosecutor ordered the Railway Police to start criminal proceedings against three officers for abuse of authority.

On 22 April 2002 the District Court in Zvolen issued a summary penal order in which it convicted one Railway Police officer of abuse of authority and of causing intentional bodily harm while carrying out his duties. The court imposed a fine of SKK 10,000 (the equivalent of approximately 250 euros) on the convicted officer and ordered the latter to pay SKK 4,020 in damages to the applicant. The applicant was referred to a civil court with the remainder of his claim for damages. The other two railway officers involved had not been charged with any offence. In accordance with the relevant provisions of the Code of Criminal Procedure, the penal order was issued by a single judge without any prior hearing. It contained a notice about the remedies available the relevant part of which reads as follows:

“The accused or other persons entitled to do so on his behalf, the public prosecutor and the injured person to whom compensation for damage was granted can file an objection to the penal order within 8 days from its service. Upon filing of an objection, the penal order shall be quashed and a main hearing shall be held in the case.

The injured person can file an objection to the operative part [of the penal order] by which compensation for damage was granted to him...

If no objection is filed within the period fixed for that purpose, the penal order shall become final and enforceable.”

On 30 April 2002 the applicant challenged the penal order by means of a submission entitled an “appeal”. He argued, inter alia, that he had been injured by two officers and that a sum of money had been stolen from him.

The relevant part of the penal order which concerned the conviction of the accused and the sentence imposed on him became final on 11 May 2002. The District Court did not notify the applicant of this fact of its own initiative as this was not required by the law.

In a letter dated 17 July 2002 the District Court judge informed the applicant that he had no right to file an appeal as regards the court’s finding as to the guilt of the accused police officer and as regards the sentence imposed.

On 14 August 2002 the District Court delivered a decision in which it referred the applicant to a civil court with his claim for damages. Reference was made to Article 314g(2) of the Code of Criminal Procedure.

On 17 September 2002 the applicant filed a complaint to the Constitutional Court. He alleged that by its above conduct the District Court in Zvolen had violated his rights under Article 46 of the Constitution and Article 13 of the Convention. On 8 November 2002 the applicant extended his complaint in that he also alleged a violation of Articles 3 and 6 § 1 of the Convention, of Article 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and of Article 14 of the International Covenant on Civil and Political Rights. He requested that the penal order should be quashed and the District Court in Zvolen ordered to proceed with the case.

The Constitutional Court dismissed the complaint on 28 November 2002 as having been filed outside the statutory two month time-limit. The decision referred to section 53(3) of the Constitutional Court Act.

The Constitutional Court noted that the applicant did not allege that the penal order issued by the District Court in Zvolen had not been served on him. The penal order clearly indicated which remedies the applicant could use against it and, accordingly, it was evident from it that under the relevant law the applicant lacked standing to challenge the decision as to culpability of the accused and as to the sentence imposed on the latter. The applicant should have sought protection of his fundamental rights within two months from the final effect of the penal order.

B.  Relevant domestic law  

1.  The Constitution and the Constitutional Court Act

Article 127 of the Constitution, as in effect from 1 January 2002, provides as follows:

“1.  The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2.  When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to restore the situation existing prior to the violation.

3.  In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

Section 53(3) of the Constitutional Court Act provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them.

2.  The Code of Criminal Procedure

Pursuant to Article 314e(1), a single judge can issue a penal order, without a hearing, where the evidence obtained permits the establishment of the relevant facts in a reliable manner.

Paragraph 5 of Section 314(e) provides that a penal order is, by its nature, equivalent to a judgment by which a person has been convicted.

Pursuant to Article 314g(1), the accused person, other persons entitled to do so on his or her behalf as well as the public prosecutor can file an objection to a penal order within 8 days from its service.

Paragraph 2 of Article 314g provides that an injured person can file an objection to the relevant part of a penal order by which compensation for damage was granted to him or her. Where the injured person files an objection, the part of the penal order which concerns compensation for damage is to be quashed. In such a case a single judge of the criminal court shall deliver a decision referring the injured person with his or her claim for damages to a civil court.

Under paragraph 3 of Article 314g, where a person entitled to do so files an objection to a penal order, a single judge shall hold a main hearing in the case. Otherwise the penal order becomes final and enforceable.

Pursuant to Article 314g(8)(a), a penal order becomes final and enforceable when no objection has been filed to it within the time-limit set for that purpose.

3.  Regulation 66/1992

Regulation 66/1992, as amended, governs the internal rules of District Courts and Regional Courts including the organisation of their work.

Pursuant to section 23, as soon as it is established that a judicial decision has become final, the judge or another person authorised to do so shall indicate this fact and the date of its final effect on the decision included in the case file.

Section 24 provides that, at the request of a person who has been served with a decision prior to its final effect, the court shall put a stamp on that decision indicating when it became final and enforceable.

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that he had suffered serious injuries as a result of his beating by police officers and that the Slovak authorities had failed to carry out a prompt, impartial and effective investigation to determine the relevant facts of the case.

2.  The applicant alleged a violation of Article 13 in conjunction with Article 3 of the Convention in that the Slovak authorities had failed to effectively investigate the assault against him and to prosecute all the perpetrators of the offence of which he was a victim. He also submitted that the amount of compensation which the District Court had granted to him was disproportionately small. The applicant affirmed that the constitutional remedy had been made unavailable to him as the District Court replied to his submission of 30 April 2002 on 17 July 2002 and on 14 August 2002, that is after the time-limit for filing a complaint to the Constitutional Court had expired.

3.  Finally, the applicant alleged a violation of Article 14 of the Convention in conjunction with Articles 3 and 13 in that the ill-treatment which he had received along with the subsequent inadequate investigation and the absence of an effective remedy had been due to his Roma ethnic origin.

THE LAW

The applicant complained that he had been subjected to inhuman and degrading treatment by police officers, that the authorities had failed to carry out an effective investigation into the incident and that he had been unable to obtain redress. He submitted that he had been discriminated against due to his Roma ethnic origin. The applicant invoked Articles 3, 13 and 14 of the Convention which provide as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“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.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

a)  To the extent that the applicant complained that the compensation awarded to him was disproportionately small, the Court notes that the applicant filed an objection to the relevant part of the penal order. As a result, that part of the penal order was quashed under Article 314g(2) of the Code of Criminal Procedure and the District Court in Zvolen delivered a decision, on 14 August 2002, by which it referred the applicant with his claim for damages to a civil court. The applicant has not informed the Court whether or not he availed himself of his right to claim damages before a civil court.

In these circumstances the Court finds that, to the extent that it has been substantiated and falls within its competence, this part of the application discloses no appearance of a violation of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b)  As to the remaining complaints related to events which led to the delivery of the penal order of 22 April 2002, the applicant was required to seek redress by means of a complaint under Article 127 of the Constitution for the violation of his rights which he now alleges before the Court.

In this respect the Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33). Thus the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits.

The applicant used the constitutional remedy, but the Constitutional Court dismissed it holding that it had been submitted more than 2 months after the final effect of the penal order.

The penal order explicitly provided that the applicant could challenge it by means of an objection to the extent that it concerned a decision on his claim for damages. This instruction was in accordance with the relevant provisions of the Code of Criminal Procedure. The relevant law also provides, inter alia, that a decision on guilt of the accused and the sanction imposed by a penal order can be challenged only by the accused person or the public prosecutor within 8 days from the service of the penal order failing which the decision on conviction of the accused and the sentence imposed on him or her becomes final.

The applicant alleged neither before the Constitutional Court nor before the Court that the penal order had not been served on him. The fact that he challenged the penal order by means of a submission dated 30 April 2002 indicates that it had been served on him prior to that date. To the extent that the applicant may be understood as affirming that he was not aware when the relevant part of the penal order had become final, the Court notes that it was open to the applicant, pursuant to section 24 of Regulation 66/1992, to request that the District Court indicate to him whether and, if so, when the decision on the conviction of the accused person had become effective and enforceable.

In view of the above facts, the Court does not find arbitrary or otherwise objectionable the conclusion according to which the applicant had filed his complaint under Article 127 of the Constitution out of time. It finds no particular circumstances which would absolve the applicant from the obligation to exhaust that remedy in accordance with the formal requirements, as interpreted and applied by the Constitutional Court.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

GERGEL v. SLOVAKIA DECISION


GERGEL v. SLOVAKIA DECISION