FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 57678/00
by Dušan BÍRO
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 10 May 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrR. Maruste,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrJ. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 13 April 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dušan Bíro, is a Slovakian national who was born in 1951 and lives in Bratislava.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Facts underlying the case
The applicant was employed with a private commercial company A. This company was associated with Mr B. and his son, Mr C., who both had a share in it and were also involved in its management. Company A. took credits from a bank D. The applicant provided security for the repayment of these credits by pledging in favour of D. his savings which he had in an account in D.
In order to secure the applicant's potential claims against A. and to provide for his compensation, he and A. concluded two contracts on, respectively, 15 January and 12 February 1998. These contracts were described as “loan contracts” and the validity of the former is disputed.
Mr B. then sold his share in company A. to a third individual. Company A. subsequently failed to meet its payment obligations towards D. and the latter seized the corresponding amounts from the applicant's account. The applicant has received no indemnification from A.
2. Applicant's civil actions
On 24 February 1999 the applicant brought an action against A. in the Trnava District Court (Okresný súd) seeking damages in connection with the above transaction. The District Court transmitted the action to the Trnava Regional Court (Krajský súd) considering that it was for the latter to examine it at first instance. However, at the Regional Court's request, on 27 February 2001 the Supreme Court (Najvyšší súd) ruled that the action fell to be examined at first instance by the District Court. The action was accordingly transmitted to the latter.
In this action the applicant made numerous written submissions, proposed that the case be settled and unsuccessfully requested several times that an interim measure be issued to freeze the defendant's assets.
On 22 October 2001 the applicant made two written submissions to the District Court in which he restated the action, redirected it against B. and C. and, again, sought a similar interim measure as above.
The District Court judge summoned the applicant for 12 November 2001 for an informative hearing in order to explore the legal nature of his recent submissions. Following this hearing, on the same day, the District Court discontinued the proceedings in the action of 24 February 1999 against company A. It did so observing that it was the applicant's wish to withdraw his action against A. and to bring a new action against B. and C. On 8 January 2003 the District Court corrected clerical errors in its decision of 12 November 2001. On 30 September 2003 the Regional Court dismissed the applicant's appeal against these decisions finding that, contrary to his arguments, there was no indication that the District Court judge had exercised any inappropriate pressure on the applicant in order to induce him to withdraw his first action against A. and to bring a new one against B. and C.
In the meantime, the District Court treated that part of the applicant's submission of 22 October 2001 which was directed against B. and C. as a new action. The applicant again unsuccessfully requested an interim measure and extended the action also against the Ministry of the Interior. On 24 June 2003 the District Court appointed a lawyer for the applicant to assist him in formulating the action properly.
On 27 July 2004 the District Court stayed the proceedings in the action against B. and C. pending the final determination of criminal charges (see below) which had been raised against the defendants on 3 June 2004 in connection with the above operation. The District Court also observed that in the criminal proceedings against B. and C. the applicant had the status of an “aggrieved party” and that he had asserted his claim for damages there.
3. Constitutional complaint
On 20 May 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He complained in substance of the length of the proceedings in his above actions and of the rejection of his requests for interim measures. The applicant also requested that he be assigned a lawyer free of charge.
On 6 June 2002 the Constitutional Court dismissed the applicant's request for a lawyer. On the basis of the information submitted by him in a constitutional complaint in another matter, the Constitutional Court observed that the applicant had been paid an equivalent of approximately 30,000 euros in the context of other civil proceedings. His material situation therefore was not such as to warrant the appointment of a State‑paid lawyer.
On 10 July 2002 the Constitutional Court declared the applicant's complaint inadmissible as, despite its previous request and warning, the complaint had not been brought by a lawyer as provided for by law.
4. Criminal and other complaints
On 22 February 1999 the applicant filed a criminal complaint with the prosecution service accusing B. and C. of having committed criminal offences of fraud, fraudulent insolvency and usury in connection with the above transaction. At the same time, he requested that his claim for damages be secured under Article 47 of the Code of Criminal Procedure.
In a letter of 11 March 1999 the Trnava District Prosecutor informed the applicant inter alia that the possibility of securing an aggrieved party's claim for damages only existed at the stage of proceedings after a criminal charge had been raised. As by that time no charges had been raised in the present case, the applicant's claim could not be secured.
The applicant's criminal complaint was examined by the Trnava District Office of Investigation which dismissed it finding that there was no case to answer on 25 June 1999. The applicant's repeated complaints were again dismissed on 19 September 1999, 9 March 2000 and 25 March 2002.
Nevertheless, on a further complaint of the applicant, the District Office of Investigation on 20 March 2003 formally commenced criminal proceedings under Article 160 § 1 of the Code of Criminal Procedure against one or more persons unknown on the basis of suspicion of their having committed the offence of the curtailing rights of creditors under Article 256 § 1 (a) of the Criminal Code. On 3 June 2004 B. and C. were charged with this offence. The criminal proceedings against them are still pending.
In the meantime the applicant had on numerous occasions submitted new evidence and made other written submissions and suggestions as regards the course of the investigation. He further complained several times about the way in which the investigation was being conducted and filed unsuccessful complaints and criminal complaints against the investigators, an advocate, a District Court judge, a prosecutor and the Minister of the Interior.
The applicant also filed unsuccessful criminal complaints relating to an alleged attempt to poison him, a physical attack on him and an attempted extortion which he linked to Mr B. and Mr C.
B. Relevant domestic law and practice
1. The Constitution and the Constitutional Court Practice
Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
In the case file no. IV. ÚS 4/02 a group of individuals brought a complaint to the Constitutional Court under Article 127 of the Constitution (as in force since 1 January 2002). They relied on Article 48 § 2 of the Constitution and Article 6 § 1 of the Convention and alleged that there were undue delays caused by the investigation service and the prosecution service in criminal proceedings in which they had the standing of aggrieved parties and in which they had lodged claims for damages.
On 23 August 2002 the Constitutional Court declared the complaint inadmissible. It observed that the primary aim of criminal proceedings was to detect criminal offences and to punish the perpetrators and not to determine the aggrieved parties' claims for damages. Aggrieved parties' claims for damages were of a private‑law nature and were predominantly claims to be asserted in civil courts. The possibility of claiming damages in criminal proceedings was a privilege which did not make the determination of such claims the central issue of the proceedings and was limited by the above main aim of the proceedings. The Constitutional Court concluded that aggrieved parties in criminal proceedings did not enjoy the right to have their claims for damages determined without unjustified delay (Article 48 § 2 of the Constitution) and within a reasonable time (Article 6 § 1 of the Convention). This line of reasoning was also followed in the Constitutional Court's decision of 8 September 2004 (file no. IV. ÚS 52/040).
2. Code of Criminal Procedure
Standing as an aggrieved party (poškodený) in criminal proceedings 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.
Article 47 et seq. provide for the possibility of securing the claim of an aggrieved party for damages by impounding the charged person's property in situations when there is a well-founded suspicion that the payment of the claim would be frustrated or hindered.
3. Code of Civil Procedure and Relevant Practice
Under Article 83 if proceedings commence in a specific matter, the matter cannot be made the subject of other judicial proceedings. If a claim for damages is duly lodged in criminal proceedings, it is considered a lis pendens from the point of view of Article 83 of the Code of Civil Procedure (Collection of Judicial Decisions and Standpoints of the Supreme Court, No. 22/1979).
COMPLAINTS
1. The applicant complained under Article 5 of the Convention that the responsible authorities had failed to take appropriate actions to protect his security of person in connection with the various assaults to which he had been subjected by Mr B. and Mr C.
2. The applicant also complained under Article 6 of the Convention that the manner in which the authorities handled his civil actions, criminal complaints and the claim for damages which he had joined to his criminal complaints had fallen short of the guarantees of “fairness” and had not complied with the “reasonable time” requirement.
3. The applicant further complained under Article 13 of the Convention that he had not had at his disposal an effective remedy in respect of his other Convention complaints.
4. The applicant finally complained under Article 17 of the Convention that the authorities had failed to prosecute and punish Mr B. and Mr C. properly.
THE LAW
1. The applicant complained that the authorities had failed to protect his security of person. He relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to ... security of person...”
The Court reiterates that the expression “liberty and security of person” in Article 5 § 1 must be read as one single concept and that consequently, “security” should be understood in the context of “liberty”. The protection of “security” in its context is concerned with an arbitrary interference by a public authority with an individual's personal “liberty”. The Court reiterates that the primary concern of Article 5 § 1 of the Convention is protection from arbitrary deprivation of liberty. The notion of security of person has not been given an independent interpretation (see in this respect East African Asians v. the United Kingdom, Commission's report of 14 December 1973, Decisions and Reports (DR) 78-A, p. 66, §§ 220-222 and Kemal Güven v. Turkey (dec.), no. 31847/96, 30 May 2000).
The Court observes that in the present case there has been no interference with the applicant's liberty within the meaning of Article 5 of the Convention.
It follows that the complaint under this Article is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. The applicant complained that that his civil‑law claims and criminal complaints had not been determined fairly and within a reasonable time contrary to the requirements of Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ...”
(a) In so far as the applicant complains that his criminal complaints against B. and C. to which he joined his claims for damages, have not been determined within a reasonable time, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) To the extent that the applicant complains of the unfairness of the proceedings concerning his criminal complaints against B. and C., to which he joined his claims for damages, the Court observes that these proceedings are still pending.
The relevant part of the application is therefore premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(c) In so far as the applicant's complaint under Article 6 § 1 of the Convention in respect of his remaining criminal and other complaints has been substantiated, the Court has found no appearance of a violation of his procedural rights protected under the said 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.
(d) As to the complaint of the length of the proceedings in the applicant's civil actions, the Court observes that the applicant has not shown that he exhausted domestic remedies as required under Article 35 § 1 of the Convention by raising this complaint before the Constitutional Court under Article 127 of the Convention (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX ) through a lawyer, i.e. in accordance with the applicable procedural requirements (see Akdivar and Others v. Turkey [GC], no. 21893/93, § 6, ECHR 996-IV). In this context the Court finds that, in the circumstances, the Constitutional Court's decision of 6 June 2002 not to grant the applicant free legal aid does not appear manifestly arbitrary, unreasonable or otherwise incompatible with the guarantees afforded to the applicant by Article 6 § 1 of the Convention.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(e) As regards the complaint of unfairness of the proceedings in the applicant's action of 24 February 1999 against A., the Court observes that the proceedings were discontinued by the District Court on 12 November 2001 and, on appeal, by the Regional Court on 30 September 2003 on the ground that the applicant had withdrawn the action. In so far as this part of the application has been substantiated, the Court has found no appearance of procedural unfairness contrary to 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.
(f) To the extent that the applicant complains of the unfairness of his proceedings in his action of 12 November 2001 against B. and C., the Court considers that such a complaint must be examined in the light of the proceedings as a whole and only once they are completed (see Kuráková v. Slovakia (dec.), no. 37895/97, 1 February 2001). These proceedings were however stayed on 27 July 2004 and to date no further decision has been taken in them.
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.
3. The applicant also complained that Mr B. and Mr C. were not adequately prosecuted and punished. He invoked Article 17 of the Convention which provides that:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The Court reiterates that the Convention does not guarantee a right to have criminal proceedings instituted against third persons or to have such persons convicted (see R.D. v. Poland, nos. 29692/96 and 34612/97, Commission decision of 22 October 1997, unpublished).
In so far as the facts of the case have been substantiated and fall within the Court's jurisdiction, the Court finds no appearance of a violation of Article 17 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.
4. The applicant finally complained that he did not have at his disposal an effective remedy in respect of his other Convention grievances contrary to Article 13 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) To the extent this complaint relates to the applicant's complaint under Article 6 § 1 of the Convention of the length of the proceedings in respect of his criminal complaints against B. and C. to which he joined his claims for damages, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
(b) The Court has found above that the applicant's remaining complaints are inadmissible. For similar reasons, in their respect, the applicant did not have an “arguable claim” and Article 13 therefore has no application to them (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
It follows that the relevant part of the application 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 adjourn the examination of the applicant's complaint under Article 6 § 1 taken alone and in conjunction with Article 13 of the Convention concerning the length of the proceedings in respect of the applicant's criminal complaints against B. and C. to which he joined his claims for damages and concerning the lack of an effective remedy in that respect;
Declares the remainder of the application inadmissible.
Michael O'BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy