Přehled
Rozhodnutí
FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9210/02
by Vincent BALÁŽ and Others
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 28 November 2006 as a Chamber composed of
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and Mr T. L. Early, Section Registrar,
Having regard to the above application lodged on 12 February 2002,
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 applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are relatives. They are all Slovakian nationals and live in Leopoldov. Their particulars appear in the appendix. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
Mr Vincent Baláž is the father of Mr Vincent Baláž Jr, Ms Jana Konečníková and Ms Helena Balážová. He is the husband of Ms Antónia Balážová. He operates a small entertainment park. It consists of merry‑go‑rounds and other attractions which are attached to movable trailers. The trailers have no number plates.
1. Incidents with the police
On 8 September 2001 around noon, Mr Vincent Baláž Jr, accompanied by Ms Jana Konečníková, drove a tractor from the village of Ratkovce towing one trailer. They stopped in front of a school in Leopoldov. Ms Konečníková got off the tractor and went to connect a second trailer to the convoy. A police car stopped nearby and an officer of the Leopoldov County Police Department (Obvodné oddelenie Policajného zboru), Mr P., checked Mr Baláž Jr’s identity card and driving licence. He inquired as to why the trailers had no number plates and then left. According to the applicants Officer P. shouted that he would impose a fine on Mr Baláž Jr because “he had an impudent [sister]” and instructed them using harsh words to move on. The Government disagree on that point.
On 10 September 2001 at around 8 p.m., Mr Baláž Jr, accompanied by Ms Konečníková, again drove the tractor from Ratkovce towing a trailer. As they were entering the street where they lived, they noticed that a police car was behind them. They drove into the yard and stopped. The trailer protruded into the street. While Mr Baláž Jr was parking the tractor, a police officer from the Leopoldov County Police Department, Mr S., entered the property without being invited, inquired of Mr Baláž Jr as to why the trailer had no number plates and asked him to produce his identity and driving documentation. Mr Baláž Jr refused, arguing that he was on his private property. According to the applicants Officer S. shouted at Mr Baláž Jr, shone an electric torch in his face and slapped him on his hand. The Government contest that suggestion. Mr Baláž Jr then shouted to Mr Baláž for help. Officer S. subsequently left. During the entire incident the police car had been parked away from the scene. Officer P., who was also present, remained close to the car.
On 10 September 2001, after 8 p.m., Mr Baláž called the police emergency service to report that his children had been attacked by Officers S. and P. Later that evening the aforementioned officers also called the police emergency service to report the incident. They subsequently filed a report regarding the incident, which resulted in proceedings for road‑traffic offences being brought against Mr Baláž Jr (see below).
2. Applicants’ complaints
Mr Baláž lodged numerous complaints with various public institutions about the incidents of 8 and 10 September 2001. He complained in particular that the police interventions had been unwarranted and arbitrary, that they constituted a discriminatory persecution of his family and that the subsequent investigation in respect of them was biased and ineffective. The investigation case file had been tampered with, the bodies which had examined his complaints had not been independent and impartial and the complaints were dismissed solely on the basis of the one‑sided information and reports submitted by the officers against whom the complaints had been directed. The applicants had not been given an opportunity to comment on the information and reports and in general had been treated in a discriminatory manner on account of their Roma origin. Lastly, Mr Baláž argued that his trailers were exempt from the obligation to have number plates.
The above complaints were interpreted as administrative complaints (sťažnosť) under the Complaints’ Act (Law no. 152/1998 Coll.). They were examined and dismissed by the Trnava Regional Police Directorate (Krajské riaditeľstvo policajného zboru) and, on repeated appeals, by the Directorate General of the Police (Prezídium Policajného zboru) and the Inspection Service of the Ministry of the Interior (Sekcia kontroly a inšpekčnej služby ministerstva vnútra). Mr Baláž was informed of the dismissals by letters of 16 October and 20 November 2001 and 30 January 2002, respectively.
The authorities examined documentary evidence and statements from Mr Baláž Jr, Ms Konečníková, Mr Baláž, Officers S. and P. and several other police officers. The applicant’s allegations were found not to be established. Their complaints were thus unfounded.
The procedure and its outcome were then examined and upheld as correct by the Trnava District Office of Public Prosecution, the Trnava Regional Office of Public Prosecution and the Office of the Prosecutor General on 12 December 2001, 28 January and 27 May 2002 respectively.
In the meantime, on 31 January 2002, the Inspection Service of the Ministry of the Interior acknowledged that the trailers of Mr Baláž were exempt from the duty to have number plates. It was further found that no records were missing from the case file of the investigation.
Further complaints of Mr Baláž were dismissed by the Inspection Service of the Ministry of the Interior on 11 March, 7 May and 11 December 2002 and by the Directorate General of the Police on 12 June 2002 respectively. The applicants’ allegations were found not to be substantiated.
On 23 May 2002 the Inspection Service of the Ministry of the Interior decided under the Code of Criminal Procedure not to bring charges of abuse of official power against the officers involved in the incidents of 8 and 10 September 2001 and the alleged disappearance of documents from the case file. The examination of the files and evidence from the applicants and the officers revealed that there was no case to answer. The decision could have been, but was not, appealed.
3. Traffic offence and criminal proceedings against Mr Baláž Jr
On 8 April 2002 the Trnava District Traffic Police (Dopravný inšpektorát) found that Mr Baláž Jr had committed a traffic offence on 10 September 2001, having driven his tractor recklessly such that he could not be overtaken by a police car. The rear lights on his trailer were not functioning either. A fine of approximately 25 euros was imposed on him.
On 23 May 2002 the Trnava Region Traffic Police upheld the decision on appeal by Mr Baláž Jr. The decision could have been, but was not, challenged by an administrative-law action under Article 83 of the Minor Offences Code (Law no. 372/1990 Coll., as amended) in conjunction with Articles 244 et seq. of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended).
On 5 February 2002 Mr Baláž Jr was charged with insulting a public official, Officer S., on 10 September 2001, by using grossly abusive language towards him.
On 14 January 2003 the Trnava District Court (Okresný súd) found Mr Baláž Jr guilty as charged and sentenced him to 4 months’ imprisonment, suspended for a period of one year. The District Court examined documentary evidence and heard the accused, Ms Konečníková and Officers S. and P. It “found no reasons not to believe” the testimonies of the latter, notwithstanding that officer P. had not been directly involved in the incident, his recollection of the incident was vague and his testimony at the trial had differed from his pre‑trial deposition.
On 27 March 2003 the Trnava Regional Court (Krajský súd) dismissed the appeal by Mr Baláž Jr. No further appeal was available.
4. Intrusive phone calls and text messages
On 3 February and 4 March 2002 Ms Konečníková Jr reported to the police that, on those days, she had received from an unknown person threatening, racially motivated phone calls and text messages.
The matter was investigated by the Leopoldov and Hlohovec County Police Departments which interviewed Ms Konečníková, Ms Konečníková Jr, Mr Baláž and 13 other persons as witnesses. The police also obtained and examined 3 reports from the telephone network operators. They established that the perpetrator of the threats was a classmate of Ms Konečníková Jr. The matter was considered to be a minor offence and the case was transmitted to the Piešťany District Office for the initiation of proceedings under the Minor Offences Code.
On 27 November 2002 the District Office found the classmate guilty of a minor offence and sentenced him to a reprimand (pokarhanie). It was observed that the wrongdoer was a minor and that he had not meant his threats to be taken seriously.
COMPLAINTS
1. The applicants complained under Article 6 of the Convention that Mr Baláž Jr had been arbitrarily found guilty of a road traffic offence and a criminal offence pursuant to proceedings that had not been fair.
2. The applicants further complained that they had been verbally and physically mistreated by the police on 8 and 10 September 2001, that the subsequent investigation into these events had not been independent, impartial, thorough and effective and that during the investigation they had received threatening telephone calls and messages. They invoked Article 8 of the Convention.
3. Relying on Articles 14 and 13 of the Convention, respectively, the applicants also claimed that the above violations of their rights had been marked by discrimination on account of their Roma origin and that they had had no effective remedy in respect of them.
4. Lastly, without further specification, the applicants alleged a violation of Article 17 of the Convention.
THE LAW
1. The applicants complained of unfairness of the proceedings leading to the convictions of Mr Baláž Jr. They relied on Article 6 § 1 of the Convention, which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
(a) In so far as this complaint has been brought by Mr Baláž, Ms Konečníková, Ms Konečníková Jr, Ms Antónia Balážová and Ms Helena Balážová, it must be noted that they were not parties to the proceedings in question. They therefore cannot claim to be “victims” within the meaning of Article 34 of the Convention of a violation of their own right to a fair trial (see, for example, Macková and Macko v. Slovakia, (dec.), no. 51543/99/98, 1 April 2003).
It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) As for the conviction for the road-traffic offence, it is to be noted that Mr Baláž Jr did not seek protection of his Article 6 rights by way of an administrative-law action under Article 83 of the Minor Offences Code in conjunction with Articles 244 et seq. of the Code of Civil Procedure. Similarly, he did not seek protection of these rights in respect of his criminal conviction by way of a complaint under Article 127 of the Constitution (see, for example, Poláčik v. Slovakia, no. 58707/00, § 48, 15 November 2005).
It follows that the complaint under Article 6 § 1 of the Convention of Mr Baláž Jr must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicants further complained of ill-treatment by the police, deficiencies in the ensuing investigation and telephone threats. They invoked Article 8 of the Convention which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
(a) The Government argued that Ms Konečníková Jr, Ms Antónia Balážová and Ms Helena Balážová had not been present at the time of the police interventions and had not been involved in the proceedings which had followed. As for Mr Baláž, his only involvement had been to complain of the police interventions, which was insufficient to make him a “victim” in the Convention sense in this context.
The applicants contested that argument.
The Court observes that Mr Baláž, Ms Konečníková Jr, Ms Antónia Balážová and Ms Helena Balážová were not directly involved in the incidents with the police and in the subsequent inquiry. They thus cannot be considered to be “victims” within the meaning of Article 34 of the Convention of a violation of their own Convention rights in connection with these events.
It follows that his part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) The Government argued that Mr Baláž Jr and Ms Konečníková had failed to exhaust domestic remedies in that they had not sought damages under the Police Corps Act and the State Liability Act. It was also open to them to seek protection of their personal integrity and claim damages under Articles 11 et seq. of the Civil Code.
The applicants disagreed and reiterated their complaint.
The Court observes that the allegations that Mr Baláž Jr and Ms Konečníková had been ill treated by the police were examined by the police, the Inspection Service of the Ministry of the Interior and at all levels of the public prosecution service, who all found them unsubstantiated. Had Mr Baláž Jr and Ms Konečníková disagreed with that conclusion, they had a variety of ways by which to assert their Convention rights. These included the possibility of challenging the decision not to bring charges against the officers involved in the case and to contest the conviction of Mr Baláž Jr. He and Ms Konečníková further could have brought a case to the ordinary courts to claim damages under the Police Corps Act (see Lampášová v. Slovakia (dec.), no. 433078/98, 9 July 2002) or to seek protection of their personal integrity under Articles 11 et seq. of the Civil Code (see, mutatis mutandis, Babjak and Others v. Slovakia (dec.), no. 73693/01, 30 March 2004).
In the light of the above the Court finds that, as regards the police intervention in September 2001, Mr Baláž Jr and Ms Konečníková did not comply with the requirement to exhaust domestic remedies pursuant to Article 35 § 1 of the Convention.
It follows that their complaint must be rejected under Article 35 §§ 1 and 4 of the Convention.
(c) As regards the inquiry into the police interventions in question, the Government argued that the remedies mentioned above provided the applicants with protection that was compatible with Article 8 requirements.
The applicants disagreed and reiterated their complaint.
The Court finds that in so far as in the specific circumstances of the present case Article 8 of the Convention might have imposed on the respondent State a positive obligation to conduct an effective investigation into the impugned police interventions (see for example, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3164, § 128, M.C. v. Bulgaria, no. 39272/98, § 153, ECHR 2003‑XII and H.M. v. Turkey, no. 34494/97, § 26, 8 August 2006), such obligation was complied with.
It follows that the complaint of Mr Baláž Jr and Ms Konečníková of the alleged deficiencies in the inquiry into the police interventions of September 2001 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(d) As for the telephone threats, the Court observes that further to the criminal complaint lodged by Ms Konečníková Jr the police opened an investigation into the matter which then led to the conviction of her classmate for a minor offence. The applicants did not challenge this decision and did not claim damages and protection of their personal integrity in the ordinary courts.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicants also alleged discrimination on the basis of their Roma origin. They relied on Article 14 of the Convention which provides that:
“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.”
The Government submitted that there was no indication of any discrimination in the treatment which the applicants had received.
The applicants disagreed and reiterated their complaint.
To the extent that this complaint has been substantiated, the Court has found no appearance that the applicants were treated differently than others in an analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants finally complained that they had had no effective remedy at their disposal in respect of their other Convention complaints. They relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
(a) The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. Its effect is to require the provision of a domestic remedy capable of dealing with the substance of an “arguable complaint” under the Convention and of granting appropriate relief (see, amongst other authorities, Aksoy v. Turkey, judgment of 25 September 1996, Reports 1996-VI, p. 2286, § 95).
The Court reiterates further that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Bensaid v. the United Kingdom, no. 44599/98, § 56, ECHR 2001-I).
The Court has found above that Mr Baláž Jr had at his disposal remedies to challenge his aforesaid convictions. He and Ms Konečníková likewise had at their disposal judicial and other remedies in respect of the police interventions in September 2001. They and the remaining applicants also had remedies at their disposal in respect of the telephone threats, as mentioned above.
The Court finds that the remedies which were available to Mr Baláž Jr, Ms Konečníková and the remaining applicants in respect of their complaints concerning the convictions, police interventions and telephone threats were compatible with the requirements of Article 13 of the Convention.
It follows that their complaint under Article 13 in conjunction with Articles 6 and 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) The Court has found that the applicants’ remaining complaints are inadmissible. For similar reasons, the applicants did not have an “arguable claim” (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52) and Article 13 of the Convention is therefore inapplicable to them.
It follows that that the remainder of the Article 13 complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicants lastly alleged a violation of Article 17 of the Convention.
To the extent that this complaint has been substantiated, the Court finds no indication of a violation of that Article.
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
Decides to discontinue the application of Article 29 § 3 of the Convention; and
Declares the application inadmissible.
T.L. Early Nicolas Bratza
Registrar President
APPENDIX
LIST OF THE APPLICANTS
1. Mr Vincent Baláž, born in 1931.
2. Mr Vincent Baláž Jr, born in 1961.
3. Ms Jana Konečníková, born in 1964.
4. Ms Jana Konečníková Jr, born in 1985.
5. Ms Antónia Balážová, born in 1932.
6. Ms Helena Balážová, born in 1951.