FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7510/04 
by Dana KONTROVÁ 
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 13 June 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
and Mr T. L. Early, Section Registrar,

Having regard to the above application lodged on 20 February 2004,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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, Mrs Dana Kontrová, is a Slovakian national, who was born in 1974 and lives in Michalovce. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. The respondent Government are represented by Mrs A. Poláčková, their Agent.

A.  The circumstances of the case

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

1.  The factual background

The applicant was married. There were two children of the marriage: a daughter who was born in 1997 and a son who was born in 2001.

On 2 November 2002 the applicant filed a criminal complaint against her husband with the Michalovce District Police Department (Obvodné oddelenie Policajného zboru). She accused him of having assaulted and beaten her with an electric cable the previous day. She submitted a medical report by a trauma specialist indicating that her injuries would incapacitate her from work for up to seven days. The applicant also stated that there was a long history of physical and psychological abuse by her husband.

At an unspecified time between 15 and 18 November 2002 the applicant and her husband attended the District Police Station. They sought to withdraw the applicant’s criminal complaint. A police officer, Mr H., advised them that, in order to avoid a prosecution, they would have to produce a medical report showing that after the incident on 1 November 2002 the applicant had not been incapacitated from work for more than six days. The applicant produced such a report on 21 November 2002.

On 26 November 2002 officer H. decided that the above matter was to be dealt with under the Minor Offences Act (Law no. 372/1990 Coll.) and, under section 60 (3) (a) of that Act, to take no further action (odloženie veci).

In the night of 26 to 27 December 2002 a relative of the applicant called the emergency service of the District Police Department to report that the applicant’s husband had a shotgun and was threatening to kill himself and the children. The applicant herself made a similar phone call later that night. The phone calls were received by a police officer, Mr B., who instructed a police officer, Mr P.Š., to arrange for a police patrol to attend the premises. The patrol found the applicant in the village of Tušická Nová Ves. The applicant’s husband had left the scene prior to their arrival. The policemen took the applicant to her parents’ home and invited her to come to the police station the following morning so that a formal record of the incident could be drawn up.

In the morning of 27 December 2002 the applicant accompanied by her brother attended the Trhovište District Police Station where she spoke to a police officer, Mr M.Š.

In the morning of 31 December 2002 the applicant and her brother attended the Michalovce District Police Station where she talked to officer H. She enquired about her criminal complaint of 2 November 2002 and also mentioned the incident of the night of 26 to 27 December 2002.

On 31 December 2002 between 11 a.m. and 11.15 a.m. the applicant’s husband shot their two children and himself dead.

2.  The criminal proceedings

On 31 January 2003 the Košice Branch of the Police Inspection Service (Úrad inšpekčnej služby Policajného zboru – “the Inspection Service”) charged officer M.Š. with abuse of public authority (Article 158 § 1 (c) of the Criminal Code) on the ground that on 27 December 2002 he had failed to accept and duly register the applicant’s criminal complaint and to commence criminal proceedings against the applicant’s husband immediately.

On 3 February 2003 the Inspection Service charged officer P.Š. with dereliction of duty (Article 159 § 1 and 2 (b) of the Criminal Code) on the ground that on the night of 26 to 27 December 2002 he had failed to take appropriate action in response to the emergency calls from the applicant and her relative, in particular, to launch a criminal investigation, to keep a proper record of the emergency calls and to advise the next shift of the situation and that the applicant would be attending the police station the following morning to file a formal criminal complaint.

On 7 February 2003 the Inspection Service charged officer H. with abuse of public authority (Article 158 § 1 (a) of the Criminal Code) for altering records pertaining to the applicant’s criminal complaint of 2 November 2002 and arbitrarily treating it as a minor offence calling for no further action.

On 12 February 2003 the Inspection Service commenced criminal proceedings against an unknown police officer for abuse of public authority (Article 158 § 1 (a) of the Criminal Code) in connection with an allegation that on 31 December 2002 he had wrongfully refused to register a criminal complaint from the applicant concerning the incident of the night of 26 to 27 December 2002. These proceedings later resulted in the charges against officer H. On the same day the Inspection Service charged officer B. with abuse of public authority (Article 158 § 1 (a) of the Criminal Code) on the ground that on the night of 26 to 27 December 2002 he had failed to take appropriate action in connection with the allegations that the applicant’s husband had threatened violence.

On 30 April 2003 the Prešov District Military Prosecutor (Vojenský obvodný prokurátor) discontinued the proceedings that had been commenced on 12 February 2003 and had subsequently led to the charges against officer H. After examining documentary evidence and testimony by the applicant, the accused and witnesses, the prosecutor found that the purpose of the applicant’s conversation with officer H. in the morning of 31 December 2002 had not been to lodge a new formal criminal complaint against her husband. She had merely sought information about the state of the proceedings further to her criminal complaint of 2 November 2002 and there was no suspicion that officer H. had committed any criminal offence.

On 28 July 2003 the Košice Regional Investigation Office (Krajský úrad vyšetrovania) discontinued the criminal proceedings instituted against officer H. on 7 February 2003. Observing that he had acted bona fide and in accordance with the applicant’s express wishes, the investigator decided that the actions of officer H. had not involved the element of social gravity that was requisite in order for them to constitute a criminal offence. The investigator also observed that officer H. had already been discharged from the police and that, therefore, no disciplinary proceedings could be brought against him. The applicant challenged this decision by a complaint which the District Military Prosecutor declared inadmissible on 15 August 2003, finding under Article 142 § 1 of the Code of Criminal Procedure that she had no right to make it.

On 4 August 2003 the District Military Prosecutor summoned officers B., P.Š. and M.Š. for trial in the Michalovce District Court (Okresný súd) on a charge of negligent dereliction of duty (Article 159 §§ 1 and 2 (b) of the Criminal Code) in connection with the above events. The summons set out in detail the internal regulations of the Ministry of the Interior the officers were alleged to have breached.

On 20 October 2003, following a hearing on the same day in which the applicant took part through the intermediary of her lawyer, the District Court dismissed the summons. It found that the criminal offence of dereliction of duty presupposed a complete or enduring failure to discharge the duty. Merely impeding the discharge of the duty was not enough. It found that in the present case the officers’ actions did not amount to such a failure to discharge their duty and that the connection between their actions and the tragedy of 31 December 2002 was not sufficiently direct. The applicant appeared in the District Court as a witness and was not served with a copy of the judgment.

On 21 January 2004 the Košice Regional Court (Krajský súd) dismissed the District Military Prosecutor’s appeal against the judgment of 20 October 2003. No further appeal was available. The applicant was neither officially informed about the appellate proceedings nor served with a copy of the Regional Court’s judgment.

The Prosecutor General however challenged the Regional Court’s decision of 21 January 2004 by a complaint in the interests of law (sťažnosť pre porušenie zákona) in the Supreme Court (Najvyšší súd).

On 29 September 2004 the Supreme Court quashed both the Regional Court’s decision of 21 January 2004 and the District Court’s judgment of 20 October 2003. The Supreme Court found that the lower courts had assessed the evidence illogically, that they had failed to take account of all the relevant facts and that they had drawn incorrect conclusions. The Supreme Court found that it was clear that the accused officers had acted in dereliction of their duties. It concluded that there was a direct causal link between their unlawful actions and the fatal consequence. The Supreme Court remitted the case to the District Court for reconsideration and pointed out that, pursuant to Article 270 § 4 of the Code of the Criminal Procedure, the latter was bound by its above legal views. The criminal proceedings are still pending.

3.  The first set of proceedings in the Constitutional Court

On 26 February 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). She formally directed her complaint against the District Police Department maintaining that its officers’ failure to act had led to a violation of her right to protection of her personal integrity (Article 16 § 1 of the Constitution), her right to protection from unjustified interference with her private life (Article 19 § 2 of the Constitution) and her right to legal protection (Article 46 § 1 of the Constitution). She asserted that the police had been well aware of the situation that had preceded the tragedy of 31 December 2002 and, in breach of their positive obligations, had failed to take the necessary action. She claimed that responsibility for this failure lay with the District Police Department. She also maintained that the criminal proceedings which were currently pending could not afford her complete redress for the damage she had sustained.

On 2 July 2003 a three-judge Chamber of the Constitutional Court declared the complaint inadmissible. It observed that the Constitutional Court only had jurisdiction if the matter concerned did not fall within the jurisdiction of another authority. Its power to award just satisfaction in respect of non-pecuniary damage could only be exercised if the Constitutional Court had substantive jurisdiction over the matter. In the present case the primary issue was whether the officers who had dealt with the applicant’s case had complied with the applicable regulations. That issue fell within the jurisdiction of the ordinary courts and was being examined in the criminal proceedings which were currently under way and in which the applicant could claim standing to intervene as an aggrieved party. A ruling on that issue could nevertheless also be sought before the civil courts. To that end, the Chamber observed that the applicant’s range of options was not limited to actions of the type specifically provided for by statute. The Chamber concluded that, in these circumstances, the applicant’s complaint was premature and the Constitutional Court had no jurisdiction to entertain it.

The President of the Chamber, however, did not share the majority view and gave a dissenting opinion. According to him, in view of its primary purpose, namely to uphold constitutionality, the Constitutional Court was free to examine complaints under the legal provisions which it considered to be the most relevant. The present case was to be examined primarily from the standpoint of the right to life and, in particular, the positive obligations inherent in that right. Contrary to the Chamber’s finding, and in breach of the said positive obligations, there were no remedies available to the applicant under civil or criminal law permitting her to claim and obtain adequate and sufficient redress for her alleged non-pecuniary damage. He pointed out that not even the Chamber had clearly identified the remedies available to the applicant for that purpose. Finally, the President said that the principle that the Constitutional Court’s jurisdiction was subsidiary, which was set out in Article 127 of the Constitution, was to be interpreted with a degree of flexibility in the light of the circumstances of each particular case. In his view, the Constitutional Court was the only authority to which the applicant could have made her claim for compensation for non-pecuniary damage in the present case. It therefore should not have been precluded from examining the case by the possible existence of other remedies which in any event were not complete.

4.  The second set of proceedings in the Constitutional Court

On 26 February 2004 the applicant, who was represented by a lawyer, lodged a fresh complaint against the District Police Department with the Constitutional Court. She reiterated the arguments she had presented in the first complaint and added that the criminal proceedings had ended without producing any positive results in respect of her complaints. She maintained that she had no remedy before any other authority as regards the non-pecuniary damage she had suffered. She concluded that the Constitutional Court was therefore called upon to deal with the merits of her case. She alleged a violation of her children’s right to life (Article 15 §§ 1 and 2 of the Constitution and Article 2 § 1 of the Convention). She further alleged a violation of her right to protection of her personal integrity and privacy (Article 16 § 1 of the Constitution), her right to protection from unjustified interference with her private and family life (Article 19 § 2 of the Constitution), her right to legal protection (Article 46 § 1 of the Constitution), her right to security of the person (Article 5 of the Convention) and her right to respect for her private and family life (Article 8 of the Convention).

On 8 September 2004 the Constitutional Court declared the complaint of 26 February 2004 inadmissible, holding that it had no jurisdiction to entertain it. In this context the Constitutional Court held that the principal questions of whether there had been any illegal action causing damage to the applicant and who was responsible for it fell to be determined by the ordinary courts. More specifically, the question of whether a crime had been committed in connection with the events complained of was to be determined in criminal proceedings. The Constitutional Court noted that in the criminal proceedings in the present case the applicant had failed to claim standing as an aggrieved party, which would have given her a series of procedural rights enabling her to influence their outcome. The fact that the criminal courts had sole jurisdiction in the matter meant that the Constitutional Court had power to intervene only if the criminal courts had acted manifestly arbitrarily. The applicant had, however, put forward no arguments to that effect. The Constitutional Court further held that, in any event, in so far as the complaint pertained to the District Police Department’s failure to take action in November and December 2002, it had been submitted outside the statutory two-month time-limit. Furthermore, the applicant had no right of petition, either of her own or on behalf of her late children, in respect of the alleged violation of their right to life. Finally, part of the second complaint was in any event inadmissible as it raised issues that were res iudicata by virtue of the decision of 2 July 2003.

B.  Relevant domestic law and practice

1.  The Constitution

Article 7 § 5 provides that:

“International treaties on human rights and fundamental freedoms and international treaties which do not require implementing legislation, and international treaties which directly confer rights or impose duties on natural or juristic persons and which have been ratified and promulgated in the manner required by statute shall take precedence over law.”

Article 46 stipulates that:

“(1)  Everyone shall be entitled to assert his or her rights in a procedure prescribed by law in an independent and impartial court of law or, if statute so provides, before another body of the Slovak Republic.

(2)  Anyone who claims that his or her rights have been curtailed by a decision of public administration shall be entitled to have the lawfulness of that decision reviewed by a court of law, unless statute provides otherwise. Decisions concerning fundamental rights and freedoms however must not be excluded from judicial review.

(3)  Everyone shall be is entitled to compensation for damage incurred as a result of an unlawful decision of a court of law, other state body or public administration body, or as a result of an incorrect official procedure.

(4)  Conditions and details concerning judicial and other legal protection shall be provided for by statute.”

Article 127 reads as follows:

“1.  The Constitutional Court shall decide complaints by natural or juristic 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.  If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

3.  In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.

4.  The liability for damage or other loss of a person who has violated another person’s rights or freedoms within the meaning of paragraph 1 shall not be affected by the Constitutional Court’ s decision.”

Article 154c provides that:

“1.  International treaties on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms.

2.  Other international treaties ratified by the Slovak Republic and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute.”

2.  The Constitutional Court’s practice

In a decision no. I. ÚS 9/00 of 22 March 2000, the Constitutional Court expressed the view that ordinary courts were obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts therefore had the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties.

In proceedings in case no. III. ÚS 204/02, a woman complained to the Constitutional Court that the police had violated her constitutional rights, including her right to the protection of her personal integrity, to privacy and to liberty of person. The complaint was based on an allegation that, following an anti-globalization demonstration, the police had arbitrarily instructed the applicant to accompany them to a police station, where they had proceeded to check her identity, carry out a strip search and take biometric readings before locking her in a room. The Constitutional Court found that no other effective remedy had been available to the applicant in respect of those complaints. On 22 January 2004 it held that her constitutional rights had been violated and ordered the police to restore the status quo ante and to pay the applicant compensation for her non-pecuniary damage.

3.  The Civil Code (Law of 26 February 1964, published in the Collection of Laws under no. 40/1964, as amended)

Article 11

“Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health...”

Article 13

“1.  Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.

2.  If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non-pecuniary damage.

3.  When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”

Article 15

“After the death of the injured party the right to the protection of his or her personal integrity shall pass to his or her spouse and children or, if none, to his or her parents.”

Article 420

“Everyone shall be liable for any damage he or she causes by breach of statutory duty.”

Article 442

“1.  Compensation shall cover actual damage and loss of profit.

2.  Damage shall be made good in money. However, if the injured party so requests and it is possible and appropriate, damage shall be repaired by restitution in full.

...”

Article 444

“Indemnification for damage to health shall consist of a lump-sum payment for suffering (bolestné) and reduced capacity for work (sťaženie spoločenského uplatnenia).”

Article 449 § 2

“In the event of fatal injury, the compensation shall cover reasonable funeral costs provided such costs have not been paid by the health insurer.”

Article 579 § 2

“In the event of the death of the person entitled to performance of the obligation, his or her right shall be extinguished if it was personal. The right to compensation for suffering and for reduced capacity for work shall also be extinguished.”

4.  Legal opinions, explanatory report (dôvodová správa) and ordinary courts’ practice as regards the protection of personal integrity

(a)  The concept of the protection of personal integrity

Under Slovakian law every natural person has the right to the protection of his or her personal integrity... The list of elements included in the notion of “personal integrity” and which are thus protected is not exhaustive. It encompasses such matters as life, health, civil dignity, name and personal expression, but also personal liberty, privacy, individual appearance and the use of an alias (see J. Svoboda, Komentár k Občianskemu zákonníku, EPP, 1-2/1999).

According to the explanatory report of 1964 on Article 11 of the Civil Code, the proposed framework was intended to protect in particular the right to life, health and civil dignity, the right to one’s name and the right to personal expression. No further provisions were needed on the protection of life and health in the framework of the protection of personal integrity, as more detailed provisions in this respect already existed in the section dealing with liability for damage.

The protection of personal integrity afforded by Article 13 of the Civil Code only comes into play if there has been objective interference with civil dignity which impairs a person’s personal integrity. This presupposes an act that undermines a citizen’s personal and moral integrity by diminishing his or her dignity, esteem and honour and jeopardising his or her social standing (Collection of Judicial Decisions and Standpoints, No. 103/1967).

Interference with the emotional sphere due to the death of a close relative or friend may in certain circumstances give rise to a claim on the basis of the right to protection of personal integrity under the Civil Code. This may include a claim for financial compensation for non-pecuniary loss under Article 13 § 2 of the Code (F. Sedlačko, Úmrtie blízkej osoby a ochrana osobnosti pozostalých, Bulletin slovenskej advokácie 2/2003, pp. 51-61).

(b)  Liability of public authorities for interference with personal integrity

Interference will not be unjustifiable if it resulted from official proceedings and did not exceed the limits set by the applicable law (Najvyšší súd o občianskoprávnom konaní v niektorých pracovnoprávnych, občianskoprávnych a rodinnoprávnych veciach, Prague, 1980, pp. 195-6).

(c)  Interference with personal integrity by a failure to act

Interference with personal integrity may take the form of an omission as well as an act (P. Vrcha, Súkromnoprávne vzťahy v judikatúre Ústavného súdu Českej republiky, LINDE, Prague, 2000, pp. 103-105).

(d)  Relevant judicial decisions

In an action in the Žiar nad Hronom District Court registered under file no. 7C 818/96-81 a mother claimed, inter alia, financial compensation for non-pecuniary damage suffered by herself and her late son. She brought the action against a person who had previously been convicted of her son’s murder. In a judgment of 9 September 2004 the District Court awarded the mother 100,0001 Slovakian korunas (SKK) under Article 13 §§ 2 and 3 of the Civil Code in respect of her non-pecuniary damage and SKK 200,0002 under Article 15 of the Civil Code in respect of the non-pecuniary damage suffered by her son. The District Court observed that the victim had been of Roma origin and the murder racially motivated. The motive was thus discriminatory and grossly degrading as regards both the victim and his mother. The District Court also noted that the murder had been committed by exceptionally brutal means. In the circumstances, it considered it established that the “diminishment of dignity or social standing” condition for an award of pecuniary compensation under paragraph 2 of Article 13 of the Civil Code had been fulfilled. It based its verdict on the provisions of the Civil Code concerning protection of personal integrity and also made reference to the relevant international instruments. On 19 January 2005 the Banská Bystrica Regional Court upheld the judgment on appeal and the matter became res iudicata.

In proceedings no. 4C 109/97 in the Šaľa District Court the plaintiff claimed compensation from the Ministry of Justice for non-pecuniary damage on the ground that he had been acquitted following the reopening of proceedings in which he had initially been convicted. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code providing for the protection of personal integrity. It dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969.

In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the Šaľa District Court’s judgment. It found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. It stated, inter alia, that the District Court had not explained why the plaintiff should first be required to seek redress under the State Liability Act. It remitted the case to the District Court with instructions for it to allow the plaintiff to proceed with the action, to hear any relevant evidence and to deliver a new decision with reasons. Reference was also made to Article 11 of the Constitution and to Article 3 of Protocol No. 7.

In a decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court granted part of a claim by a plaintiff who was a member of the judiciary for the protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration of property without any justification and that he had been removed from his office as the president of a district court for failing to comply. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to the protection of his personal rights had been violated.

In judgments file nos. 27C 3/99, 18Co 245/01 and 5Cdo 54/99, respectively, the Bratislava III District Court, Bratislava Regional Court and the Supreme Court upheld the view that a deceased’s close relatives, as defined in Article 15 of the Civil Code, have the capacity to bring proceedings to protect the deceased’s personal integrity. The cases referred to concerned defamatory articles in the press.

5.  State Liability Act of 1969 and its application

Until 1 July 2004 the sphere of State liability for damage caused by wrong decisions and official misconduct was regulated by the State Liability Act of 1969 (Law no. 58/1969 Coll. - Zákon o zodpovednosti za škodu spôsobnú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom).

Under section 18 (1) of that Act the State was liable for damage caused by the wrongful acts of public officials in the exercise of their duties. An award of compensation could be made if the plaintiff showed that he or she had suffered damage as a result of misconduct on the part of a public authority, quantified its amount, and established a causal link between the damage and the misconduct in question.

In accordance with the courts’ practice, the State Liability Act of 1969 did not allow for compensation to be awarded for damage of a non pecuniary nature. The only exception to this rule was compensation for damage to health, which was governed by Regulation no. 32/1965 Coll. Pursuant to Article 579 § 2 of the Civil Code, however, the right to compensation for damage to health lapsed on the injured party’s death.

6.  State Liability Act of 2003

In June 2002 the Minister of Justice submitted to the Government a draft bill providing for a new legislative framework for official liability. The bill was accompanied by an introductory report (predkladacia správa) in which the Minister observed, inter alia, that the old State Liability Act had been on the statute book since 1969 and that, owing to subsequent changes to the social system and the adoption of the Convention, there was a new understanding of the concept of State liability for damage which called for the introduction of new legislation.

The bill was later submitted to Parliament with an explanatory report, the relevant part of which stated that it was necessary to extend the current perception of the right to damages from actual pecuniary damages to incorporate just satisfaction in respect of non-pecuniary damage. The purpose of the proposed Act was, inter alia, to render the mechanism of compensation for damage caused by public authorities more effective and thereby reduce the number of cases in which claimants were obliged to seek redress before the European Court of Human Rights.

The bill was adopted with effect from 1 July 2004 (Law no. 514/2003 Coll. – Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci) and replaced the State Liability Act of 1969.

Section 17 of the Act provides for compensation for pecuniary damage including loss of profit and, where appropriate, compensation for damage of a non-pecuniary nature.

Section 27 of the Act provides that the Act will only apply to damage caused by official misconduct occurring after it entered into force.

7.  Code of Criminal Procedure (Law no. 141/1961 Coll., as amended, in force until 31 December 2005))

Standing as an aggrieved party (poškodený) is governed by the seventh Section (Oddiel) of the second Chapter (Hlava).

Article 43 §§ 1 and 2 provides, inter alia, that a person who has suffered pecuniary or non-pecuniary damage as a result of a criminal offence, may claim compensation from the accused and request the court, when convicting the accused, to order him or her to pay compensation for the damage. The aggrieved party further has the right to adduce evidence and to comment on it, to inspect the court-file, to take part in the hearing and to make submissions.

8.  Code of Criminal Procedure (Law no. 301/2005, in force from 1 January 2006)

Standing as an aggrieved party is governed by section 8 of Chapter 2.

Persons who have suffered damage to their health, property, morals or otherwise, or whose legally protected rights or freedoms have been violated or put at risk as a result of a criminal offence are considered aggrieved parties. They have inter alia the right to claim compensation for their damage; to adduce evidence and to comment on it, to inspect the court file, to take part in the hearing; to make submissions etc. (Article 46 § 1).

An aggrieved party who has a lawful claim against the charged for compensation for damage resulting from a criminal offence, has the right to propose that a guilty verdict should include an order for compensation. The proposal must be made at latest by the end of the investigation and must indicate the ground for and scope of the claim (Article 46 § 3).

9.  Police Corps Act of 1993 (Law no. 171/1993 Coll., as amended)

The Act governs the organisation and powers of the police. Pursuant to section 2 (1) (a) and (b) the police serve, inter alia, to protect fundamental rights and freedoms, life, health, personal safety and property, to investigate criminal offences and to identify the culprits.

COMPLAINTS

1.  The applicant complained under Article 2 of the Convention that, despite being aware of the exigencies of the situation, the State had failed to take the effective action it was obliged by law to take to protect the life of her two children. Under the same Article she further complained that the State had failed to call those responsible to account.

2.  The applicant also complained that the violations of Article 2 of the Convention alleged above also constituted a violation of her right under Article 8 of the Convention to respect for her private and family life.

3.  The applicant further complained that the State had failed to afford her redress in respect of the non-pecuniary damage suffered. The Court considers that this complaint falls to be examined under Article 13 of the Convention in conjunction with Articles 2 and 8 of the Convention.

4.  Under Article 6 § 1 of the Convention the applicant finally complained that the Constitutional Court’s decisions not to entertain her complaints had denied her access to a court to claim compensation for non-pecuniary damage.

THE LAW

1.  The applicant complained that the State had failed to protect the life of her two children and that those responsible for her children’s death had not been brought to justice. She alleged a violation of Article 2 of the Convention, which in so far as relevant reads as follows:

“1.  Everyone’s right to life shall be protected by law...”

(a)  To the extent that the applicant complained of a failure to prevent the death of her children, the Government argued that she had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They primarily objected that she had not claimed redress in the ordinary courts by way of an action for the protection of her and her children’s personal integrity under the Civil Code. Referring to the existing judicial decisions and legal theory, as summarised above, they maintained that she could have brought a claim on her own behalf under Article 13 § 2 of the Civil Code and on behalf of her late children under Article 15 of the Civil Code for financial compensation for the non-pecuniary damage caused by the allegedly illegal failure to act. In determining such claims the courts would not only be bound by the provisions of the Civil Code but would also be obliged to take due account of the provisions of the relevant international instruments.

The Government further pointed out that the criminal proceedings which had been instituted against the police officers in question were still pending. The applicant had the legal standing of an aggrieved party in those proceedings and, in that capacity, possessed an array of procedural rights including the right to claim compensation in respect of pecuniary damage. Furthermore, crucial factual and legal questions were still being examined in those proceedings.

The Government considered, lastly, that if, having taken such proceedings, the applicant was unhappy with the outcome, she would have a further remedy in the Constitutional Court under Article 127 of the Constitution.

Having regard to their position on the admissibility of this part of the application, the Government considered it premature to address the merits.

The applicant argued that an action for protection of personal integrity was not an effective remedy in the specific circumstances of her case and that she was not obliged to make use of it for the purpose of Article 35 § 1 of the Convention. She argued that the essential aim of an action for the protection of personal integrity under the Civil Code was to defend the individual against defamation. It had not been introduced with the aim of protecting life and limb. The applicant also argued that for an action for protection of personal integrity to be admissible, the dignity and social standing of the person concerned had to have been diminished. What had happened in her case however was that she had lost her children and neither her nor her children’s dignity or social standing had been in play. For an action for protection of personal integrity to lie in her case would require an excessively extensive interpretation of the relevant legal provisions going beyond the scope of its established use. There was no case-law of the Supreme Court to support the Government’s contention in this respect.

As to the judgments of the Žiar nad Hronom District Court and the Banská Bystrica Regional Court in the action by a mother for non-pecuniary compensation following the murder of her son, the applicant argued that they were generally regarded as controversial and that there was no indication that they would be followed by other courts. To that end she emphasised that there was no doctrine of binding precedent in Slovakia and that the possible persuasive value of the judgments was limited still further by the fact that they had not been reviewed by the highest courts. The applicant also contended that the other relevant judicial decisions had either yet to become binding or concerned substantially different circumstances.

In so far as the Government argued that the criminal proceedings were still pending, the applicant claimed that the purpose of those proceedings was to determine the criminal liability of the accused, an issue which, in her view, had no direct link to the violations of the Convention which were the main subject of her complaints.

As to the merits, the applicant maintained that the State had been under a duty to provide her and her children with effective protection against her abusive husband. The authorities had been made sufficiently aware of the existence of a real and immediate risk to the life of her children from her husband’s criminal acts. They should have classified his threats and abusive behaviour as criminal offences and investigated them ex officio. They had, however, failed to take adequate measures within the scope of their powers that might have been expected to prevent him from carrying out his threats. Relying on the Supreme Court judgment of 29 September 2004, the applicant asserted that there had been a direct causal link between the police’s failure to act and the death of her children.

The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention 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. However, the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time (see Aliev v. Ukraine, no. 41220/98, § 105, 29 April 2003).

The Court further reiterates that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. The Court has recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see İlhan v. Turkey [GC], no. 22277/93, §§ 58-59, ECHR 2000-VII).

In the present case the Court notes that the existing concept of protection of personal integrity in Slovakia has its statutory root in the original text of the Civil Code which was adopted in 1964, the relevant provisions being found in Articles 11 et seq. As to the language of these provisions, it is true that legal protection is afforded to personal integrity in a wide sense. On the other hand, these provisions have primarily been applied by the courts and in judicial practice in defamation actions.

It is further noted that, in its decision of 2 July 2003, the Constitutional Court did not indicate clearly that an action for protection of personal integrity was available to the applicant. On the contrary, in his dissenting opinion, the President of the Constitutional Court Chamber considered that no remedies were available to the applicant under civil or criminal law with a view to obtaining just satisfaction for her non-pecuniary damage.

The Court also takes notice of the changes in social conditions and of developments in the legal environment since the relevant statutory provisions were adopted and amended. It is clear that these changes have given rise to a need to regulate by law new types of relationships, in particular in the area of non-pecuniary damage to natural persons (see, for example, the cases of Kučera v. Slovakia (dec), no. 48666/99, 4 November 2003, Pavletić v. Slovakia, no. 39359/98, 22 June 2004 and Tám v. Slovakia, no.50213/99, 22 June 2004, E.O. and V.P. v. Slovakia, nos. 56193/00 and 57581/00, 27 April 2004 and Z.M. and K.P. v. Slovakia, no. 50232/99, 17 May 2005). The existence of these new trends is also reflected in the Minister of Justice’s introductory report of June 2002 to the State Liability Act of 2003, which makes special provisions in respect of non-pecuniary damage. This piece of new legislation however only applies to events that take place after its entry into force and has no retrospective application to the facts giving rise to the present application.

There is no doubt that, in legal theory, ways have been explored of extending the scope of application of the existing statutory rules concerning the protection of personal integrity without amending or replacing them, simply by a new creative interpretation in the light of the relevant international instruments.

Turning to the present case, the Court considers that the Government have failed to show, with reference to sufficiently consistent established case-law in cases similar to the applicant’s, that their interpretation of the scope of the action for protection of personal integrity was sufficiently certain not only in theory but also in practice and offered at least some prospects of success. In making this conclusion, the Court has also taken into consideration the applicant’s personal circumstances, the fact that a right as fundamental as the right to life is at stake (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-6, § 147) and that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see, for example, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I).

As to the criminal proceedings against the police officers, which are still pending, there is no indication that the applicant will be able to seek compensation for her non-pecuniary damage.

The Government’s objections as to the exhaustion of domestic remedies with respect to the complaint of the failure to prevent the death of the applicant’s children therefore cannot be sustained.

The Court considers, in the light of the parties’ submissions, that this part of the application 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 part of the application 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.

(b)  As to the complaint under Article 2 of the Convention of the alleged failure to bring those responsible for the fatal incident of December 2002 to justice, the Court observes that the criminal proceedings against the police officers involved in the applicant’s case are still pending.

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

2.  The applicant also complained that the above-alleged violations of Article 2 of the Convention also constituted a violation of her right to respect for her private and family life under Article 8 of the Convention, which, in so far as relevant, provides as follows:

“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 parties reiterated, mutatis mutandis, their arguments concerning the complaints under Article 2 of the Convention.

(a)  The Court observes that this part of the application has the same factual background as the above complaints under Article 2 of the Convention. It has declared the complaint concerning the domestic authorities’ alleged failure to take action to protect the lives of the applicant’s children admissible under Article 2 of the Convention. The Court finds no reasons to reach a different conclusion in respect of this complaint under Article 8 of the Convention.

The Court thus considers, in the light of the parties’ submissions, that this part of the application 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.

(b)  The complaint concerning the failure to call to account those responsible for the death of the applicant’s children under Article 2 of the Convention has been declared inadmissible as being premature. The Court finds no reasons to reach a different conclusion in respect of this complaint under Article 8 of the Convention

The Court therefore finds that the remainder of the complaints under Article 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicant further complained that it had been impossible for her to make a claim in respect of non-pecuniary damage. In substance, she relied on Article 13 in conjunction with Articles 2 and 8 of the Convention. Article 13 of the Convention 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.”

Referring to the action for protection of personal integrity, the Government maintained that the applicant had had an effective remedy and considered that the complaint under Article 13 of the Convention was manifestly ill-founded.

The applicant disagreed and reiterated her arguments regarding compliance with the rule of exhaustion of domestic remedies in respect of her complaints under Articles 2 and 8 of the Convention.

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.

4.  The applicant finally complained that, as a result of the decisions of the Constitutional Court not to entertain her complaints, she had been denied access to a court to claim compensation for non-pecuniary damage. She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government repeated the argument they had made in respect of the complaints under Articles 2 and 8 of the Convention, namely that the applicant could have sought compensation for non-pecuniary damage in an action for protection of personal integrity and concluded that the complaint of lack of access to a court was thus manifestly ill-founded.

The applicant contested that argument.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, including the question of the applicability ratione materiae of the procedural protection of Article 6 § 1 to the applicant’s claim for compensation in respect of non-pecuniary damage (see Roche v. the United Kingdom [GC], no. 32555/96, §§ 116-121, ECHR 2005-...), the determination of which should depend on an examination of the merits of the relevant part of the application. 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.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 2; 6 § 1 (joining the question of the applicability of this provision to the merits); 8 and 13 of the Convention concerning, respectively, the domestic authorities’ alleged failure to protect the lives of the applicant’s children; the applicant’s lack of access to a court with her claim for redress for the non-pecuniary damage suffered; the alleged resultant violation of the applicant’s right to respect for her private and family life; and the applicant’s alleged inability to secure redress in respect of the non-pecuniary damage suffered;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza 
 
Registrar President

1 SKK 100,000 is equivalent to approximately 2,600 euros (EUR).


2 SKK 200,000 is equivalent to approximately EUR 5,200.


KONTROVÁ v. SLOVAKIA DECISION


KONTROVÁ v. SLOVAKIA DECISION