FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74459/01 
by Tibor NOVOTKA 
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 27 September 2005 and on 8 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 21 September 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tibor Novotka, is a Slovakian national who was born in 1963 and lives in Bratislava. He is represented before the Court by Mrs G. Zelemová, a lawyer practising in Bratislava.

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

1.  Underlying facts

On 29 February 1996 the applicant, as a member of the public, took part in a public hearing which was held before the Supreme Court (Najvyšší súd) in an unrelated matter. For his private use, the applicant intended to make an audio recording of the hearing. He was however forbidden to do so by the President of the Chamber and subsequently lodged a complaint of the prohibition with the Supreme Court.

In a letter of 2 April 1996, in response to the applicant’s complaint, the President of the Supreme Court observed that the applicant had had the chance of taking part in the hearing and thus of receiving information about the case. In his view the prohibition on recording had not injured the applicant’s right to receive and impart information.

On 25 April 1996 the applicant lodged a petition (podnet) under Article 130 § 3 of the Constitution with the Constitutional Court (Ústavný súd). He challenged the prohibition on recording and the response to his complaint about it and argued that they constituted a violation of his right to seek, receive and impart information guaranteed under Article 26 §§ 1 and 2 of the Constitution. The applicant also invoked Article 19 § 2 of the United Nations International Covenant on Civil and Political Rights and Article 10 § 1 of the Convention.

On 12 May 1997 the Constitutional Court found a violation of the applicant’s above rights. In its finding the Constitutional Court expressed the view that the right to seek, receive and impart information afforded legal protection also to the possibility of obtaining information actively. It was for each individual to decide how he would exercise the said right and whether, in exercising it, he would apply technical means of audio or video recording in order to store, process and disseminate the information obtained.

On the one hand it was true that taking measures in order to secure the orderly conduct of court proceedings was within the discretionary power of the president of the court’s chamber. However, on the other hand, to forbid recording which did not disturb the course of the hearing would exceed such discretion. In the present case there was no indication or allegation that the applicant’s intended recording would disturb the hearing. There was therefore a violation of Article 26 of the Constitution.

As to Article 10 of the Convention, the Constitutional Court observed that its application in respect of recording court hearings had not yet been tested. The lacking Convention standard had therefore to be substituted by a domestic standard. The Constitutional Court was of the view that there was accordingly a violation of Article 10 of the Convention as well.

2.  Civil action

On 11 July 1997 the applicant brought an action against the Ministry of Justice in the Bratislava I District Court (Okresný súd). On 3 November 1998 the applicant provided further and better particulars through the intermediary of a lawyer who represented him from then on throughout the proceedings.

In reliance on the Constitutional Court’s finding the applicant argued that the prohibition of recording was wrongful. He maintained that it had caused him non-pecuniary damage and claimed an amount of money by way of just satisfaction. The applicant based the claim alternatively on the State Liability Act (Law no. 58/1969 Coll.) and on the provisions of the Civil Code concerning protection of personal integrity. In the latter case the applicant also claimed an apology.

On 13 September 2000, following a hearing held on the same day, the District Court dismissed the action. In so far as the applicant invoked the State Liability Act, it was held that it guaranteed no right to compensation in respect of non-pecuniary damage. As no pecuniary damage had been asserted, the relevant part of the action was unfounded. It was further held that liability for damage caused by erroneous official conduct was governed exclusively by the State Liability Act as the lex specialis. The Civil Code as the lex generalis did not apply to it and the State did not have the standing to be sued under its provisions.

On 27 March 2001, following a hearing held on the same day, the Bratislava Regional Court (Krajský súd) upheld the part of the judgment of 13 September 2000 concerning the dismissal of the action in so far as it had been based on the State Liability Act. It concurred with the District Court’s view that the said legislation provided for no right to compensation in respect of non-pecuniary damage. The Regional Court however quashed the contested judgment as being premature and lacking adequate reasoning in so far as it concerned the applicant’s claim under the Civil Code.

In a judgment of 29 October 2001 the District Court ordered that the Ministry of Justice apologise to the applicant for the violation of his rights found by the Constitutional Court. It was held that the State, in the person of the Ministry, had the standing to be sued in the case. The prohibition of the recording constituted an interference with the applicant’s personal integrity within the meaning of Article 11 of the Civil Code, in particular with an element of his personal liberty. As found by the Constitutional Court the prohibition was wrongful, and directly causally linked to the interference with the applicant’s rights. An apology was an adequate just satisfaction in the circumstances of the case. In so far as the applicant had claimed any just satisfaction in money, he failed to satisfy the requirements of Article 13 § 2 of the Civil Code by showing that his dignity or position in society had been diminished considerably in an objective sense. It was finally observed that the applicant had in fact taken part in the hearing in question and that he had a full chance of perceiving its course by his senses and of taking notes of it in writing. The prohibition of audio recording thus did not deprive him of his rights completely. It merely determined the form of their exercise, even if not in accordance with the applicant’s wishes. In view of these considerations and the fact that the applicant was involved as a private citizen and not as for example a journalist, the gravity of the interference was diminished. The applicant challenged the judgment by an appeal disputing the interpretation of the relevant legal rules by the District Court. In particular, he maintained that his entitlement to financial compensation was sui generis, and that it was based on the violation of his fundamental right as such and that the requirement of “diminishment of dignity or position in society” therefore did not apply to his case.

On 18 June 2002 the Regional Court upheld the District Court’s judgment of 29 October 2001 fully endorsing its legal reasoning. No appeal lay against the Regional Court’s judgment and it became final and binding on 30 July 2002.

3.  Constitutional complaint

On 26 September 2002 the applicant who was represented by a lawyer lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He argued that he had not received a fair trial in the proceedings in his action of 1997 in that the courts had failed to assess his claim for financial compensation in the light of all the relevant evidence. They consequently drew incorrect conclusions and arbitrarily dismissed the claim while failing to support the dismissal by an adequate reasoning.

On 13 November 2002 the Constitutional Court sitting in camera pursuant to Section 25 § 1 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended) held a preliminary examination of the complaint following which it declared it inadmissible as being manifestly ill-founded. It was observed that the applicant was in fact challenging legal conclusions of general courts which did not correspond to his wishes and which the Constitutional Court had no jurisdiction to review unless contrary to constitutional principles. No such contradiction had however been established.

COMPLAINTS

1.  The applicant complained under Article 6 § 1 of the Convention that the proceedings in his action of 1997 had been unfair in that the courts had ignored his arguments as regards his claim to financial compensation and that the length of these proceedings had been excessive. Under the same Article the applicant also complained that there had been no public hearing before the Constitutional Court of his complaint of 2002.

2.  Relying on Article 10 of the Convention the applicant also complained that, although there had been a violation of his right to receive and impart information as found by the Constitutional Court on 12 May 1997, it had been impossible for him to obtain adequate just satisfaction in respect of his non-pecuniary damage.

THE LAW

1.  The applicant complained of a violation of his right to a “fair” and “public” hearing within a “reasonable time” contrary to Article 6 § 1 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 within a reasonable time by [a] ... tribunal...”

(a)  To the extent the applicant complained of the length of the proceedings, the Court notes that the period to be taken into consideration started on 11 July 1997, when the action was brought. It ended on 13 November 2002 when the Constitutional Court decided on the applicant’s complaint. It thus lasted 5 years, 4 months and 2 days. During this period the case was examined four times by ordinary courts at two levels of jurisdiction and, subsequently, the Constitutional Court examined its constitutional aspects.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time” (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII), and having regard to all the material in its possession, that the length of the proceedings in the present case was not contrary to the reasonable time requirement laid down in Article 6 § 1 of the Convention.

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

(b)  In so far as the applicant complains that the proceedings in his action of 1997 lacked the guarantees of a fair trial, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case the applicant’s action was examined four times by courts at two levels of jurisdiction. The case was eventually reviewed for compliance with constitutional principles also by the Constitutional Court.

The parties were heard and the proceedings were adversarial. The applicant, who was represented by a lawyer throughout, was provided with ample opportunity to state his arguments, to challenge the submissions made by the defendant and to submit any evidence he considered relevant to the outcome.

The applicant’s action was in fact partially granted, in so far as he had been alleging an interference with his personal integrity and claiming an apology. His claim to financial compensation for the interference was duly examined but finally rejected as the applicant had failed to establish that the relevant requirements of the Civil Code were complied with.

The District Court and the Regional Court supported their findings by reasoning that does not appear to be manifestly arbitrary or wrong.

In the light of these considerations the Court has found no indication of any procedural unfairness within the meaning of Article 6 § 1 of the Convention.

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)  As to the complaint of the lack of public hearing before the Constitutional Court, the Court’s task will, above all, be to ascertain whether the special features of the domestic proceedings viewed as a whole justify a departure from the principle that there should be a public hearing (see, among other authorities, Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31-32). To that end the Court notes that public hearings were held at first instance and on appeal at which the factual and legal issues of the applicant’s case were examined. Admittedly, the proceedings in the Constitutional Court were conducted without a public hearing. However, this was in accordance with the relevant provision of the Constitutional Court Act. Since those proceedings were limited to an examination of compliance of the ordinary courts’ legal conclusion with the applicable constitutional principles, they entailed an assessment not of points of fact but exclusively of points of law. The Court accordingly considers that the fact that no public hearing was held in the proceedings in the Constitutional Court was sufficiently compensated by the public hearings held at the decisive stage of the proceedings, when the merits of the applicant’s action were determined (see Gratzinger and Gratzingerová v. the Czech Republic (dec.), no. 39794/98, ECHR 2002-VII).

It follows that the complaint of lack of public hearing before the Constitutional Court is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant also complained that it had been impossible for him to obtain adequate just satisfaction in respect of the non-pecuniary damage which he had sustained in connection with the violation of his right to receive and impart information as found by the Constitutional Court. He relied on Article 10 of the Convention which provides as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The question arises whether the prohibition of recording of a court hearing by a private third party who is nevertheless allowed to take part in the hearing in person falls within the ambit of the right to “receive and impart information” pursuant to Article 10 of the Convention (see Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 29, § 74, Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A no. 160, p. 20, § 49 and, mutatis mutandis, Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, § 18, 15 June 2004). The Court does not consider it necessary to determine this issue as, in any event, this part of the application is inadmissible for the following reasons.

In its finding of 12 May 1997 the Constitutional Court found a violation, inter alia, of Article 10 of the Convention on account of the facts of which the applicant now complains before the Court. Subsequently ordinary courts ordered that the Ministry of Justice should apologise to the applicant for the violation of his rights found by the Constitutional Court considering that an apology was adequate just satisfaction in the particular circumstances of the case.

Having regard to the particular circumstances of the case the Court concurs with the above conclusion. Accordingly, the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged violation of his rights under Article 10.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
 
Deputy Registrar President

NOVOTKA v. SLOVAKIA DECISION


NOVOTKA v. SLOVAKIA DECISION