FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29858/03
by Zuzana DUCHOŇOVÁ
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 2 October 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 October 2004,
Having regard to the decision of 15 May 2005 to adjourn the application,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Zuzana Duchoňová, is a Czech national who was born in 1961 and lives in Brno.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In a letter of 4 May 2000 the applicant informed the Ministry of Justice (ministerstvo spravedlnosti) that in 1998 and 1999 Ms B., her sister-in-law living in Switzerland, had forced her into prostitution in Ms B.’s establishment under threat that she would tell the applicant’s husband that his wife had prostituted herself during her visits in Switzerland.
On 15 May 2000 the Ministry of Justice informed the applicant that her criminal complaint for defamation and blackmail, to which she had joined a claim for damages, had been transferred to the Břeclav District Prosecutor’s Office (okresní státní zastupitelství). On 23 May 2000 the latter informed her that the complaint would be dealt with by the Brno Municipal Prosecutor’s Office (městské státní zastupitelství) which, in turn, on 20 June 2000, transferred it to the Brno-Bystrc Police District Office (obvodní oddělení policie). Having questioned the applicant on 20 July 2000 and her husband and son on 30 July 2000, the Police District Office sent it back to the District Prosecutor’s Office on 19 September 2000.
On 4 October and 29 November 2000 respectively, the applicant informed the District Prosecutor’s Office that she maintained her criminal complaint claiming damages of CHF 150,000 (EUR 95,000). She further criticised the prosecutor for the fact that her husband and son had been implicated in the investigation proceedings and interviewed by the police.
In a letter of 4 December 2000 the District Prosecutor, having summed up the previous procedural steps taken by the authorities involved in the case, replied that the hearing of the applicant’s husband and son had been necessary in order to established the relevant circumstances. The prosecutor further noted:
“In your letters of [4 May, 4 October and 29 November 2000 respectively] ... you further claimed damages of CHF 150,000. At this stage of the proceedings, ... there is nothing which would deprive you from filing a civil action for protection of ‘personal rights’ and claim damages if you feel to be injured by the statements of Ms [B.]. Within the framework of the criminal proceedings, which however are not yet pending because, as you have already been said above, the case is only in a stage of examination of the facts ..., not in a stage of criminal prosecution within the meaning of the Code of Criminal Procedure, you could claim damages caused by a criminal act of a third person. ... [T]his is, however, premature at this stage of the proceedings.
I inform you that the case is in the stage of examination within the meaning of section 158(3) of the Code of Criminal Procedure. It was not yet possible to proceed with the criminal prosecution and, so far as you seek the financial compensation, you have to address a civil court with a civil action.”
In a letter of 3 March 2001 the Hustopeče u Brna Police District Office informed the applicant that her criminal complaint against Ms B. could not be settled, the District Prosecutor’s Office not yet having received letters rogatory for a Swiss prosecutor to hear Ms B. in Zürich where Ms B. had her residence.
On 14 November 2001 Ms B. was questioned. She denied the applicant’s accusation.
On 10 May 2002 the applicant’s son was again questioned, but used his right not to testify. On 28 May 2002 the applicant and her husband were reheard. They maintained the contents of their previous arguments and statements.
In a letter of 26 June 2002 the District Prosecutor informed the applicant that the examination of her criminal complaint was still pending and should finish by 30 August 2002.
On 12 August 2002 Ms B. was again questioned, denying the applicant’s accusation. Her son corroborated Ms B.’s statement.
On 20 August 2002 the applicant was informed that the file had been sent to the Břeclav Criminal Police Investigation Service (Služba kriminální policie a vyšetřování) with a proposal to institute criminal proceedings.
By a resolution (usnesení) of 16 September 2002 the Criminal Police Investigation Service decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there was no reasonable suspicion that Ms B. had committed any criminal offence. The ruling further stated:
“Having examined the facts as provided for in section 158 of the Code of Criminal Procedure, [the police authority] did not find any facts which would prove that any criminal offence had been committed. ... Bearing in mind that criminal legal relations were not affected, no criminal prosecution of a particular person could be commenced. [It is clear] that [the problem concerns] the civil legal relations which could be settled in a civil way.”
On 27 January 2003 the District Prosecutor, following the applicant’s complaint (stížnost), quashed this resolution, and sent the case back to the Criminal Police Investigation Service for further investigation.
By a resolution of 29 July 2003 the latter, having complemented the examination of the facts, again decided to refuse to act in a matter under section 159a(1) of the Code of Criminal Procedure as there were no factors which would confirm the applicant’s incriminating statement that she had been blackmailed by Ms B. or that the latter had defamed her.
On 27 November 2003 the Ministry of Justice sent a copy of the resolution to the applicant.
In a letter of 4 December 2003 addressed to the Ministry, the applicant expressed her disappointment with the results of the examination proceedings and with the manner in which her criminal complaint had been dealt with. She pointed out that the resolution had not been notified to her.
On 13 August 2004 the applicant filed a complaint against the Criminal Police Investigation Service’s resolution of 29 July 2003.
On 11 October 2004 the Brno Regional Prosecutor (krajský státní zástupce) found it unsubstantiated stating, inter alia:
“Your submission was not examined as a complaint against the aforesaid resolution ..., because while the police authority immediately dispatched the resolution ..., it did not succeed to notify it to you and, after the mail having been consigned at the post office ... , you did not collect it within the ten following days. The last day of this time-limit is considered ... as the day of the delivery of the mail, from which a three-day time-limit for filing a complaint starts running. For these reasons, the complaint filed after the expiry of the time-limit had to be rejected without an examination on the merits ...
... In the examination proceedings [the police authorities] collected all material in evidence necessary for clarification and examination of [your criminal complaint]; however, the suspicion of committing an offence was not confirmed. This conclusion does not affect the fact that you can claim damages [against Ms B.] by way of a civil action brought to a competent court.”
B. Relevant domestic law
The Code of Criminal Procedure
Chapter nine of the Code governs the procedure before the formal institution (commencement) of criminal prosecution. Under this chapter, the police authorities inter alia receive and obtain relevant information and evidence and conduct investigations with a view to detecting criminal offences, establishing their perpetrators and preventing criminal activities (examination proceedings – prověřování).
The procedure before the formal institution of a criminal prosecution may result in a decision to refuse to act in a matter under section 159a(1)-(4) (odložení věci) or to refer a matter to the minor offences, disciplinary or other authority under section 159a(1) (odevzdání věci), or to institute a formal criminal prosecution (zahájení trestního stíhání) under section 160(1).
In accordance with section 159a(1), a prosecutor or police authority is to refuse to act in a matter if there is no suspicion that a criminal offence has been committed and no other steps are appropriate, such as for example referring the matter to the competent minor offences authority or disciplinary authority.
Under section 159a(2), a prosecutor or police authority is to refuse to act in a matter also if the institution (commencement) of a criminal prosecution is not permitted pursuant to section 11(1).
Under section 159a(4), a prosecutor or police authority is to refuse to act in a matter if there are no factors allowing the institution of a criminal prosecution under section 160. Once the reasons for the refusal ceased to exist, the criminal prosecution shall commence.
In accordance with sections 159a(5) and 159a(6), a copy of the decision not to act in a matter is to be served on a victim, who has a right of appeal against it. The person on the basis of whose motion the decision was given is notified about it if he or she asks for.
Section 159b provides for a temporary refusal to act in a matter.
The institution of formal criminal prosecutions is governed by Chapter ten, Section one. Under section 160(1), a police authority is to immediately instigate a criminal prosecution (zahájení trestního stíhání) if the information obtained indicates that a criminal offence has been committed by a particular person and if there is no reason for refusing to act in the matter pursuant to sections 159a(2), 159a(3) or 159b(1).
The Civil Code
According to section 11, any natural person has the right to protection of his or her personal integrity (osobnost), in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.
Pursuant to section 13(1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
Section 13(2) provides that in cases when the satisfaction obtained under Section 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. Under paragraph 3 of section 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.
COMPLAINTS
The applicant complained of a violation of her right to a fair hearing within a reasonable time. She submitted that in the lengthy proceedings, the State authorities had allowed Ms B. to continue harassing the applicant and her family.
She further complained that she had not had any effective remedies at her disposal and that Ms B. had violated her right to private and family life.
THE LAW
1. The applicant complained of a violation of her right to a fair hearing within a reasonable time. She relied, in substance, on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
The Court must first consider whether this provision applies to the proceedings carried out by the investigation authorities in the present case.
The Court notes that the wording itself of Article 6 (“against him”) makes it clear that in criminal cases its guarantees protect the person who faces a criminal charge (see AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, § 65). Article 6 § 1 is, therefore, not applicable under its criminal head, given that the applicant was not charged with a criminal offence in the proceedings in question.
It remains to be considered whether Article 6 applies under its civil head. The Court notes that, the right to enjoy a good reputation is a civil right within the meaning of Article 6 § 1 of the Convention (see Golder v. the United Kingdom, judgment of 21 February 1975, § 27; Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 14, § 124; Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, p. 78, § 58).
In the present case, the Court observes that the applicant, considering herself blackmailed and defamed by Ms B.’s behaviour, had lodged a criminal complaint against her joining the claim for damages. Admittedly, the applicant wished to act in ensuing criminal proceedings as a civil party. However, her criminal complaint has not resulted in a formal instigation of a criminal prosecution and in the laying of charges against Ms B. under section 160 of the Code of Criminal Procedure. They ended in a resolution of the Criminal Police Investigation Service not to pursue the matter.
The Court finds that the proceedings concerning the applicant’s criminal complaint which terminated by the police authority’s decision not to prosecute a third person were of a purely investigative nature and did not determine her “civil rights and obligations” (by contrast Perez v. France [GC], cited above, § 65; Pfleger v. the Czech Republic (no. 58116/00, 27 July 2004); Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005).
The Court adds that the Czech law allows the applicant to bring an action under civil law which the applicant has not pursued.
In sum, Article 6 of the Convention is not applicable.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed pursuant to Article 35 § 4.
2. The applicant further complained that Ms B. had violated her right to private and family life.
The Court draws attention to its settled case-law, in accordance with which Article 8, while primarily intended to protect the individual against arbitrary interference on the part of the public authorities, may also entail the adoption by the latter of measures to secure the rights guaranteed by that Article even in the sphere of relations between individuals including in cases of alleged harassment (see, e.g., López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, § 51; Moreno Gómez v. Spain, no. 4143/02, § 55, 16 November 2004; and Surugiu v. Romania, no. 48995/99, § 59, 20 April 2004; Birznieks v. Latvia (dec.), no 56930/00, 23 October 2001).
The Court recalls that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, e.g., Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27; Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, p. 22, § 45).
The Court observes that it would have been open to the applicant to take civil proceedings which could provide her with effective relief in respect of her complaints under Article 8 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained that she had not had any effective remedies at her disposal. She invoked, in substance, Article 13 of the Convention which provides 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.”
The Court recalls that Article 13 of the Convention guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 (see, e.g., Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 145). However, this provision applies only in respect of grievances under the Convention which are arguable (see, e.g., Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
Having regard to its conclusion on the applicant’s Articles 6 and 8 complaints, the Court finds that her complaint under this head is not arguable and is therefore manifestly ill-founded within the meaning of Article 35 § 3. Accordingly it must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy