AS TO THE ADMISSIBILITY OF
Application no. 70497/01
by Alica VEREŠOVÁ
The European Court of Human Rights (Fourth Section), sitting on 1 February 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 1 June 2001,
Having deliberated, decides as follows:
The applicant, Mrs Alica Verešová, is a Slovakian national who was born in 1965 and lives in Košice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a lawyer and serves in the Police.
In a disciplinary order of 4 August 2000 the Head of the Inner Department of the Regional Directorate of the Police Corps in Košice found the applicant had committed a disciplinary offence (disciplinárne previnenie – see below) in that, in July 2000, she had failed to discharge her duties prior to taking her annual leave and had arbitrarily left for holiday without prior authorisation. The applicant was sanctioned by reducing her monthly salary by 5% for a period of two months.
On 10 August 2000 the applicant lodged an appeal against the order to the Head of the Regional Directorate of Police Corps. She argued that the order was illegal and unjustified and that there were several flaws in the procedure leading to it. She maintained inter alia that the facts had not been established objectively, that she had not been given adequate time and facilities to defend herself and that the order lacked appropriate reasoning.
On 14 September 2000 the Head of the Regional Directorate of Police Corps dismissed the appeal and upheld the order of 4 August 2000.
On 27 October 2000 the applicant requested that the Minister of the Interior review the decisions of 4 August and 14 September 2000 in a special extra-appellate procedure (mimo odvolacieho konania).
In a letter of 3 January 2001 the Minister informed the applicant that he had reviewed the contested decisions and concluded that they were lawful.
B. Relevant domestic law
1. Code of the Civil Procedure (Law no. 99/1963 Coll., as amended)
Part (Časť) 5 governs the administrative judiciary. Chapter (Hlava) 2 of this Part lays down the rules for a review of the lawfulness of decisions taken by administrative authorities on the basis of administrative law actions.
Article 248 defines situations in which administrative tribunals have no jurisdiction to review administrative decisions on the basis of administrative law actions. Pursuant to its paragraph 2 (f), as worded at the relevant time and until 31 December 2003, administrative tribunals did not have the power to review administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter's personal liberty or resulted in termination of their service.
2. Act on Service in the Police, the Slovak Intelligence Service, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended)
The Act regulates the service (section 1 (1)) in the Police, the Slovak Intelligence Service, the National Security Office, the Corps of the Prison Guards and the Railway Police and legal relations concerning commencement, changes and termination of such service (section 1 (2)).
The disciplinary authority (disciplinárna právomoc) is vested in superior officers who have the power to make disciplinary awards (disciplinárne odmeny) and to impose disciplinary measures (disciplinárne opatrenie) on their inferiors.
The term disciplinary offence is defined in section 52 (1) as a culpable breach of a police officer's duties which does not constitute a criminal offence (trestný čin) or a minor offence (priestupok).
Pursuant to section 53 (1) in conjunction with section 55 (1) disciplinary offences can be sanctioned by disciplinary measures of (i) a written admonishment; (ii) reduction of salary by up to 15% for a period of up to 2 months; and (iii) stripping of rank by one degree for a period of one year.
Section 248 concerns judicial review of decisions. It stipulates that a policeman or policewoman has the right to challenge final and binding decisions of their superiors in court.
The applicant raises several complaints in reliance on Article 6 of the Convention. She complains above all that the sanction was illegal and unjustified and that there had been flaws in the procedure concerning it. Relying on Article 248 § 2 (f) of the Code of the Civil Procedure she further complains that it was impossible for her to have her sanction reviewed by a court. The applicant emphasises that the sanction comprised reducing her salary which clearly had a proprietary aspect and maintains that, therefore, her case falls within the ambit of the Article invoked.
The applicant complains that, in respect of her disciplinary measure, she did not receive a fair trial before and independent court contrary to Article 6 of the Convention which, in so far as relevant, provides that:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal...”
The Court considers that it must ascertain first of all whether the guarantees of Article 6 of the Convention apply to the present case. In order to do that the Court must establish whether the proceedings at issue involved a determination of any of the applicant's “civil rights and obligations” or of any “criminal charge” against her.
a) In so far as any determination of the applicant's civil right and obligations may be relied upon, the Court notes that the applicant is serving in the Police. Having regard to the nature of the functions and responsibilities which it incorporates, the applicant's employment can be regarded as a direct participation in exercise of the public authority and functions aiming at safeguarding the general interests of the State (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-II and Jurík v. Slovakia (dec.), no. 50237/99, 27 September 2001).
Against this background the Court considers that Article 6 § 1 of the Convention in its civil limb is not applicable in the instant case.
It follows that the complaint under this head is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
b) It thus remains to be ascertained whether the applicant's proceedings can be said to have involved a determination of a “criminal charge” against her within the meaning of Article 6 § 1 of the Convention.
To that end the Court recalls that the notion of “criminal charge” is an autonomous concept (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 33-35, §§ 80-82). It further recalls the criteria which it has established in this connection: the classification of the offence under national law, the nature of the offence and the nature and severity of the penalty which the applicant risked incurring, (ibid.).
In the instant case, the applicant was punished by her superiors for committing a disciplinary offence of failing to discharge her service duties and leaving for holiday without prior authorisation.
The legal basis for the punishment was the Act no. 73/1998 which lays down rules of the service in the Police and in similar forces.
Section 52 (1) of the Act no. 73/1998 clearly distinguishes the category of disciplinary offences from those of criminal offences and minor offences. The Act no. 73/1998 is designed to govern the conduct of and its provisions apply solely to the members of specific groups which are defined in its section 1, such as the Police (see Weber v. Switzerland, judgment of 22 May 1990, Series A no. 177, p. 18, § 33).
In connection with her disciplinary offence the applicant did not risk any form of deprivation or liberty and the most severe penalty that could be imposed on her appears to be that of reducing her salary by 15 % for 2 months or stripping her of rank by one degree for one year. In any event, the applicant received merely a reduction of salary by 5 % for a period of two months.
In the light of the above the Court concludes that the impugned proceedings were of an internal disciplinary nature and did not involve a determination of a “criminal charge” against the applicant within the meaning of Article 6 of the Convention (see Lee v. the United Kingdom (dec.), no. 53429/99, 16 May 2000 and Özdaş v. Turkey (dec.), no. 45555/99, 5 December 2000).
Thus, in so far as the applicant relies on Article 6 of the Convention in its criminal limb, the relevant part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'Boyle Nicolas Bratza
VEREŠOVÁ v. SLOVAKIA DECISION
VEREŠOVÁ v. SLOVAKIA DECISION