LAKATOS v. THE CZECH REPUBLIC

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42052/98
by Juraj LAKATOŠ
against the Czech Republic

The European Court of Human Rights (Third Section), sitting on 23 October 2001 as a Chamber composed of

MrJ.-P. Costa, President,
MrL. Loucaides,
MrP. Kūris,
MrsF. Tulkens,
MrK. Jungwiert,
MrsH.S. Greve,
MrM. Ugrekhelidze, judges,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 4 May 1998 and registered on 4 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Slovak[Note1] national, born in 1966 in Nové Zámky, a city then on the territory of the Czechoslovak Socialist Republic, today on the territory of Slovakia. When the applicant introduced the present application, he was serving a prison sentence at the Oráčov prison (Czech Republic). He is represented before the Court by Lord Anthony Lester of Herne Hill, Q.C., an English barrister, Mr James A. Goldston, an attorney at the New York Bar, and by Mr Karol Stome, a lawyer practising in Prague. The respondent Government are represented by their Agent, Mr E. Slavík, from the Ministry of Justice.

A.  The circumstances of the case

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

The applicant’s father, his uncle and his aunt are Czech citizens and reside in the Czech Republic. The applicant says that he has lived on the territory of part of former Czechoslovakia and today’s Czech Republic, since 1984. He lived in Prague at the home of his father and aunt and, most recently, at his uncle’s home. The applicant is single and does not have any family or children of his own. He has worked with various companies, mostly as a construction worker. For a very long time, he has maintained almost no contact with his relatives in what is now the Slovak Republic. He speaks Czech.

According to the Government, in February and August 1987 respectively, the applicant was sentenced in Slovakia for theft (krádež) and then for robbery (loupež). In 1991 he was convicted of sexual abuse.

In April 1996 the applicant committed a theft in a commercial centre in Prague, and was forbidden to stay in the Czech Republic for a period of three years until 30 April 1999 by a decision of the Prague Immigration Police (cizinecká policie).

On 12 November 1996 the Nymburk District Court (okresní soud) found the applicant guilty of disorderly conduct (výtržnost) and attempted bodily harm (ublížení na zdraví) in that, on 28 September 1995, he physically assaulted his friend, Mr K. The court sentenced the applicant to two years’ imprisonment and ordered his expulsion from the Czech Republic, in accordance with section 57 of the Criminal Code.

In its judgment, the court set out the circumstances of the applicant’s assault on the victim: they were both in a heavily intoxicated state. The court referred to the nature and extent of the injuries inflicted and to the degree of intoxication of the applicant. It further referred to a psychiatric report which had concluded that the applicant was a complex personality suffering from an intelligence disorder amounting to feeble-mindedness. The report indicated that the applicant had had a memory loss because he had been drunk at the time of the incident, and that his ability to control his actions was substantially reduced, if not absent entirely, by reason of the effects of the alcohol on him. The court also referred to the applicant’s admission that he had beaten the victim.

When determining the applicant’s sentence, the court referred to sections 23(1) and 31(1) of the Criminal Code, taking into account the mitigating and aggravating circumstances of the offence. As regards the applicant’s expulsion, the court held that:

“[the applicant] is a Slovak citizen but who has not been staying at the place of his permanent residence for a long time. He lives in Prague with his relatives. He is employed with a construction company as a manual worker and he has never been convicted on the territory of the Czech Republic. However, [the applicant’s] tendency to committing violent criminal acts is attested by a copy of his criminal record kept at the Office of the Prosecutor General of the Slovak Republic from which it appears that he had been repeatedly convicted of violent criminal acts and sentenced to long, unconditional prison penalties.”

On 20 March 1997 the Prague Regional Court (krajský soud) upheld the Nymburk District Court’s judgment, finding that the court had admitted and correctly assessed all necessary evidence and reached convincing factual conclusions. As to the applicant’s expulsion order, the appellate court acknowledged that the first instance court had not given reasons for its imposition, but concluded that the legal requirements for imposing such a punishment had been met. The appellate court observed that the applicant was not a Czech citizen, that he had not been granted refugee status and that he had committed a repeated and brutal attack against another citizen. It stated that the continuous threat posed by the applicant was supported also by the fact that he had prevented one of the witnesses who had seen the applicant’s attack on the victim from calling ambulance. As a result, the victim had been found suffering from hypothermia. Moreover, all witnesses from among the applicant’s circle of acquaintances had shown that they had clear concerns about the applicant. The court further stated that, when taking into account the nature of the applicant’s previous convictions on the territory of the Slovak Republic, these findings clearly led to a conclusion that public safety required his expulsion from the Czech Republic. The appellate court finally stated that the expulsion order would not cause a disproportionate, severe, personal prejudice to the defendant. It referred to the fact that, during his repeated interrogations, the applicant had said nothing which would have proved that he had close family ties with other Czech citizens.

In May 1997, after he had been sentenced to two years’ imprisonment and expulsion from the territory of the Czech Republic but had refused to surrender to his prison sentence, he was arrested by the Czech police and charged with obstruction of a public decision (maření úředního rozhodnutí) for which he was sentenced to five months’ imprisonment in August 1997. In the meantime, on 13 February 1997, the administrative prohibition on remaining in the Czech Republic had been extended to ten years.

On 20 May 1997 the applicant lodged a constitutional appeal (ústavní stížnost). Invoking Article 8 of the Convention and Article 10 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), he complained that his expulsion from the Czech Republic, with which he had very close ties because of his relatives and employment there, constituted an extremely severe punishment. He further maintained that the expulsion was disproportionate to the degree of dangerousness for society of the offence he had committed, and to his personal situation. The expulsion thus contradicted the purpose of punishment within the meaning of section 23(1) of the Criminal Code. He also claimed that the expulsion would have negative consequences on his private and family life because of his affiliation to Roma gypsies whose community is characterised by close relationships among all relatives. The applicant referred to the Mustaquim v. Belgium case (judgment of 18 February 1991, Series A no. 193) and to the Buckley v. the United Kingdom case (judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV).

The applicant substantiated his family ties with the members of his family living in the Czech Republic as follows:

“I was born on 27 January 1966 in Slovakia. From 1 January 1969, I was a citizen of the Czechoslovak Socialist Republic and at the same time I was a citizen of the Slovak Republic. I belong to the Roma minority and I have a large family both in the Czech and Slovak Republics. I have moved many times and several times I lived in the Czech Republic. As early as 1984, when I was 15, I lived mostly in the Czech Republic. I worked for some time for [a Czech company] .... Since 1990 I have lived permanently in Prague, most recently at my uncle’s place, Karel Lakatoš, Ostrovní 16, Prague 1. Before that, I had lived at my father’s place in Prague 8, ...and at my aunt’s place in Prague 6 .... I am single and have no family or children of my own. I have worked for various firms, mostly as a construction worker. In 1994 and 1995 I worked especially for [another Czech company] ... Since then I have been physically living in the Czech Republic. I maintain almost no contacts with my relatives in Slovakia. I speak Czech. I am used to living in the Czech Republic and I would like to continue to live here.

... I was a citizen of the Czechoslovak Federation and I used to move from one part of the country to another. I never crossed the rontiers of the country. I became a foreigner in the Czech Republic only on 1 January 1993, after the dissolution of the Federation. I must add that at present my ties with the Slovak Republic are really only formal, related to my citizenship. I do have some relatives there whom I would like to visit sometimes but I cannot imagine that I could go back there to live permanently.

I belong to the Roma minority. It is generally known that we, Roma people, live by tradition in larger families than non-Roma people and that an integral part of such a large family are more distant relatives than parents and children, or possibly grand parents. We maintain very close emotional, and very often also financial, relations with distant relatives, i.e. with uncles, aunts etc. Until I was 15 years old, I had been brought up by my grandmother. I have a very close relationship with my uncle and aunt with whom I live in Prague. Although my ethnic background cannot be the key aspect to be dealt with by the court when imposing punishment, this fact should not be omitted altogether.”

On 17 September 1997 the Constitutional Court obtained written observations from the Prague Regional Court and the Nymburk District Attorney (okresní státní zástupce) commenting upon the applicant’s constitutional appeal. On 24 September 1997 the Prague Regional Court sent further documents concerning the applicant’s employment, revealing that, when considering the applicant’s case, it had taken into account the fact approved by the Nymburk District Office (okresní úřad) that the applicant’s employer had not been registered at the Trade Licensing Office (živnostenský úřad). None of these documents was sent to the applicant.

On 5 November 1997 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal. It stated that the Czech legislation did not require the ordinary courts, when imposing a penalty of expulsion, to have regard to any matters other than those prescribed by the Criminal Code. It held that, by meeting those requirements, there was no breach of the applicant’s rights under the Convention or the Constitution. The ordinary courts had not been required to have regard to the fundamental right to respect for private and family life guaranteed by Article 8 of the Convention, or to interpret this provision in the light of the European Court’s case-law.

B.  Relevant domestic law

Charter of Fundamental Rights and Freedoms

Article 3 § 1 provides that fundamental rights and freedoms are guaranteed to everyone irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership in a national or ethnic minority, property, birth, or other status.

According to Article 10 §§ 1 and 2, everyone is entitled to the protection of his dignity, personal integrity, good reputation and name, as well as protection against unauthorised interference with his personal and family life.

Article 14 § 5 provides that an alien may be expelled only in cases specified by law.

Criminal Code (Act no. 140/1961, as amended)

According to section 23(1), the aim of punishment is to protect society from wrongdoers, to prevent convicted persons from continuing to engage in criminal activity, and to educate them to lead a law-abiding life and, therefore, to have an instructive effect on other members of society. Section 23(2) provides that a sentence must not cause the degradation of human dignity.

According to section 31(1), the court shall, when assessing the type and degree of severity of a sentence to impose, take into account the degree of danger to society represented by the crime, the offender’s personal situation and the possibility that he will reform.

According to section 57, the court may punish with expulsion from the territory of the Czech Republic an offender who is not a Czech citizen and has not been granted refugee status. The expulsion may be imposed as a separate sentence, or together with another sentence, if the safety of the people, public property or other public interest so require.

Constitutional Court Act (Act No. 182/1993, as amended)

According to section 48, the Constitutional Court must consider all the evidence necessary to establish the facts of the case. It decides what evidence submitted by the parties should be considered and may take into account other evidence which has not been proposed. It may assign a judge to consider evidence obtained otherwise than at an oral hearing or request another court to consider such evidence. At the request of the Constitutional Court, courts, public administrative authorities and other State institutions must assist it in its decision-making by procuring documentary evidence. A record is drawn up of all evidence which is obtained otherwise than at an oral hearing, this record being signed by a judge, a clerk and other persons taking part. The resulting evaluation of that evidence must always be communicated at the oral hearing.

Acquisition and Loss of the Citizenship of the Czech Republic Act (Act no. 40/1993

According to Article 7, citizenship of the Czech Republic can be conferred upon request on natural persons who meet all of the following conditions: a) having permanently and continuously resided in the territory of the Czech Republic for at least five years, b) being able to prove release from citizenship of another state, or loss of previous foreign citizenship upon acquisition of the citizenship of the Czech Republic, unless the persons concerned are stateless persons, c) not having been sentenced in the past five years for wilfully having committed a punishable offence, and d) being able to prove knowledge of the Czech language.

Article 18 is one of the special provisions applying to citizenship of the Czech Republic in connection with the dissolution of the Czech and Slovak Federal Republic. It provides that citizens of the Slovak Republic may choose citizenship of the Czech Republic by means of a declaration made by 30 June 1994 at the latest provided that they a) have been residing continuously in the territory of the Czech Republic for at least two years, b) present documents of release from citizenship of the Slovak Republic, except in cases where the person concerned is able to prove that he has applied for release from citizenship of the Slovak Republic and his application has not been granted within three months, and he simultaneously declares at the district office that he relinquishes citizenship of the Slovak Republic; this document is not required in the cases where opting for citizenship of the Czech Republic automatically entails the loss of citizenship of the Slovak Republic, and c) have not been sentenced in the past five years for wilfully having committed a punishable offence. According to paragraph 5, natural persons shall make such a declaration at the appropriate district office in the place of their permanent residence, or the place of their last permanent residence, or abroad at the diplomatic or consular office of the Czech Republic.

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3(d) of the Convention that the criminal proceedings were not conducted fairly and in a manner that respects the principle of equality of arms. He claims that he did not have the opportunity in the proceedings before the Prague Regional Court and the Constitutional Court to see and make comments on certain documentary evidence submitted to these courts. He contends that he was not aware that the Prague Regional Court, when dealing with his appeal against the judgment of the Nymburk District Court, took into account the written statement of the Nymburk District Office, according to which his employer had not been registered at the Trade Licensing Office. Moreover, he did not receive the written observations of the Prague Regional Court and the Nymburk District Attorney commenting upon his constitutional appeal. Nor was he served with the documents relating to his employment which the Prague Regional Court had sent to the Constitutional Court.

2. He further complains under Article 8 of the Convention that his expulsion from the Czech Republic violates his right to respect for his private and family life. He claims that the national courts failed to give proper consideration to the effect of the expulsion order on that right.

3. The applicant finally complains under Article 6 §§ 1 and 3(d) and Article 8 of the Convention, taken together with Article 14, that the expulsion order constituted discrimination against him on the ground of his Roma origin.

THE LAW

1.The applicant alleges a violation of Article 6 §§ 1 and 3d) of the Convention which, so far as relevant, provide as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

“Everyone charged with a criminal offence has the following minimum rights:

d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

a) The applicant complains that he did not have the opportunity to see and make comments on the documentary evidence produced before the Prague Regional Court.

The Government state that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. They submit that the applicant did not include a complaint concerning the alleged unfairness of the proceedings before the Prague Regional Court in his appeal to the Constitutional Court. In the alternative, the Government contest the merits of the complaint.

The applicant disputes the Government’s arguments. He states that he discovered the violation of his right to a fair trial by the Regional Court only after the decision of the Constitutional Court had been issued. Therefore, he could not include it in the constitutional appeal. He recalls the Court’s case-law according to which it is sufficient for the substance of the Convention complaint to be put before the domestic authorities, even if it is not formulated expressly (see the Gasus Dossier-und Fördertechnick GmbH v. the Netherlands judgment of 23 February 1995, Series A no. 306-B, p. 360, § 48 and the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, § 33). He submits that although he expressly alleged in his constitutional appeal only a violation of Article 8 of the Convention, the facts mentioned in the appeal also covered in substance complaints under Article 6 § 1 and 3d) of the Convention.

The Court recalls that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, 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 (see, inter alia, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 with which it has a close affinity, that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights.

The Court notes that the Convention forms an integral part of the Czech legal system, where it takes precedence over domestic law, pursuant to Article 10 of the Constitution. It further notes that Article 6 of the Convention is directly applicable. The applicant could therefore have relied on this provision before the Czech courts, including the Constitutional Court, and complained of its violation in his case. However, at no time did the applicant do so, either in form or in substance, for example by reference to the relevant provisions of the Charter of Fundamental Rights and Freedoms (see the relevant domestic law above).

The Court observes that in his constitutional appeal addressed to the Constitutional Court on 25 May 1997, the applicant referred to the fact that he was a member of the Roma minority and that he had not been guilty of any previous criminal wrongdoing in the territory of the Czech Republic. He complained that the penalty of expulsion was disproportionate and in breach of his rights under Article 8 of the Convention. He referred to the fact that his permanent residence where he had his job and his family ties, was in the Czech Republic, and submitted that the degree and severity of his criminal wrongdoing did not justify the penalty of expulsion which would have draconian consequences for his private and family life.

The Court notes that the applicant in his appeal to the Constitutional Court failed to raise his complaint concerning the criminal proceedings held before the Nymburk District Court and Prague Regional Court, which he submits now before the Court under Article 6 of the Convention. He has not therefore exhausted relevant domestic remedies and this part of the application must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

b) The applicant also contends that he did not receive the written observations of the Prague Regional Court and the Nymburk District Attorney commenting upon his constitutional appeal. Nor was he served with the documents relating to his employment which the Prague Regional Court had sent to the Constitutional Court.

The Government state that in the proceedings before the Constitutional Court the applicant was legally represented. His lawyer was acquainted with the written observations produced before the Constitutional Court and had the opportunity to make comments on them.

The applicant argues that neither himself nor his lawyer had an adequate opportunity to make comments on the documents submitted by the Prague Regional Court and the Nymburk District Attorney before the Constitutional Court.

The Court recalls that according to the case-law of the Court, Article 6 § 1 of the Convention applies in general to proceedings before the Czech Constitutional Court (see Krčmář v. the Czech Republic, no. 35376/97, § 36, 3 March 2000).

The Court also notes, with reference to the Convention case-law, and in particular most recently the Maaouia v. France (judgment of 5 October 2000, no. 39652/98, to be published in ECHR 2000-X), that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention (§ 38).

The Court observes that in the present case the Constitutional Court was called upon to decide whether the imposition on the applicant of the expulsion order from the Czech Republic violated his right to respect for his private and family life guaranteed by Article 8 of the Convention and Article 10 § 2 of the Charter of Fundamental Rights and Freedoms.

It is true that the expulsion order constituted an integral part of the judgments issued by the courts in the criminal proceedings, being imposed on the basis of the relevant provisions of the Czech criminal law, and that the proceedings before the Constitutional Court were merely a result of a remedy filed as a last resort against the judgments given by the criminal courts.

However, the Court, referring to the above mentioned Maaouia v. France judgment (§ 39), recalls that orders excluding aliens from the territory of a particular State do not concern the determination of a criminal charge, their characterisation within the domestic legal order being open to different interpretations. The domestic legal order’s characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. In general, exclusion orders are not characterised as criminal within the member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6 § 1 of the Convention. The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature.

In the light of these circumstances, the Court finds that Article 6 § 1 of the Convention is not applicable in the proceedings before the Constitutional Court in the present case. This part of the application must be therefore rejected as being incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains that his expulsion from the Czech Republic violates his right to respect for his private and family life and that the national courts failed to consider sufficiently the effect of the expulsion on this right. He invokes 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.”

The Government contest the existence of any ties which the applicant had with his relatives living in the Czech Republic, which would amount to a family life within the meaning of Article 8 § 1 of the Convention.

They submit that the applicant is unmarried and without children. His mother lives in Slovakia. His father and aunt live in the Czech Republic, but the applicant does not know their exact address. As to his uncle, although the applicant knows his permanent address, there is nothing to indicate or prove that he would maintain any family relations with his uncle within the meaning of Article 8 of the Convention. The Government also submit that the applicant was serving a prison sentence in Slovakia between 1987 and 1990.

The Government further submit that the applicant has always been registered as a permanent resident and citizen of Slovakia. He was registered for temporary stay in the Czech Republic only from 4 November 1994 to 20 July 1995 when he was struck off the registry upon his own request. After that he stayed in the Czech Republic illegally. During his legal stay in the Czech, he lived at an address in the Mladá Boleslav district. Therefore, the applicant could not have permanently lived at his uncle’s home, as alleged.

In case the Court considers that the applicant had a family life in the Czech Republic, the Government consider that the interference with his right to respect for family life was justified under Article 8 § 2, being in accordance with the law - section 57 of the Criminal Code - and having pursued the legitimate aims of the protection of health and public order and the prevention of crime. The Government further contend that the measure was necessary in a democratic society within the meaning of Article 8 § 2 and that the Czech authorities have not overstepped their margin of appreciation.

The Government point out that in 1987 the applicant was twice sentenced in Slovakia for theft (krádež) and then for robbery (loupež), and that in 1991 he was convicted of sexual abuse. In April 1996, before the Nymburk District Court convicted the applicant of disorderly conduct and attempted bodily harm, he had committed a theft in a commercial centre in Prague and was forbidden to stay in the Czech Republic for a period of three years until 30 April 1999 by a decision of the Prague Immigration Police (cizinecká policie). This interdiction was then extended until 13 February 2007. In May 1997, after he had been sentenced to two years’ imprisonment and expulsion but had refused to start the execution of his prison sentence, he was arrested by the Czech police and charged with the obstruction of a public decision (maření úředního rozhodnutí) for which he was sentenced to five months’ imprisonment in August 1997.

The Government consider that the applicant has in fact stronger ties to Slovakia where he was born and grew up and where his mother and other relatives live. Moreover, in July 1995 he asked for the annulment of his residence permit in the Czech Republic. The applicant’s temporary residence permit was issued for the purpose of his employment on 4 November 1994 until 30 September 1995. He admitted that his employment was one of the crucial ties with the Czech Republic. Moreover, there is nothing to prevent the applicant’s relatives living in the Czech Republic from visiting the applicant in Slovakia whenever they wish.

The applicant disputes the arguments of the Government. He complains that his expulsion was disproportionate.

The applicant submits that the fact that he was serving in Slovakia a prison sentence in 1987 cannot be considered as proof that he had not spent most of the period since 1984 in the Czech Republic. He also submits that the circumstances concerning his residence prior to the dissolution of the former Czech and Slovak Federal Republic on 31 December 1992 are irrelevant since it was the dissolution that precipitated the events leading to his expulsion from the Czech Republic. Every national of former Czechoslovakia had the right to freedom of movement within the borders of the federal state. He was therefore allowed to travel freely and visit his relatives in both parts of the state. Although he may have committed the offence while in Slovakia, this shows nothing about whether at that time he resided there or was only visiting Slovakia temporarily.

The reason for the cancellation of his residence in July 1995 was the fact that his stay in the lodging-house of the sugar factory was not allowed after this date. He cancelled his registration and mistakenly failed to register his new place of residence in the Czech Republic.

He further submits that he has always been in touch with and able to locate and visit his relatives. He simply has not had sufficient opportunity to make his case to the courts to this effect, nor did the courts avail themselves of the opportunity to examine this issue comprehensively.

He admits that the expulsion was based on section 57 of the Criminal Code. However, the courts did not take into consideration the existence of his real and substantial ties with his relatives residing in the Czech Republic. He alleges that these interests outweigh those of public safety.

The applicant stresses that he became an alien in the Czech Republic due to the dissolution of the former Czech and Slovak Federal Republic. Though he neglected the formal requirements, the implications of such an omission could not be predicted in 1992 prior to the dissolution. This negligence deprived him of the possibility to opt for Czech nationality. Furthermore, the applicant asked to become a Czech citizen in 1998, thus showing a clear intention to have a home in the Czech Republic and to be legally related to the country. The fact that he sought to obtain Czech nationality refutes the Government’s argument that his ties with Slovakia may be closer and stronger than his ties with the Czech Republic. His expulsion order therefore also constitutes a violation of his right to respect for his home.

In examining cases of the present kind, the Court’s first task is usually to consider whether a sufficient link exists between an applicant and his relatives as to give rise to the protection of Article 8 of the Convention. In the present case, however, the Court does not consider it necessary to examine this question or the question whether there was an interference with the applicant’s right to respect for his private life because, even assuming this to be the case, the applicant’s complaint is in any event manifestly ill-founded for the following reasons.

As regards the lawfulness of the interference, the Court observes that the decision to expel the applicant was based on section 57 of the Criminal Code. The interference was therefore “in accordance with the law” within the meaning of Article 8 § 2.

Moreover, the Court considers that the interference pursued legitimate aims that were wholly compatible with the Convention, namely the “prevention of disorder or crime”, the “protection of health” and the “protection of the rights of others”.

The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences (see the El Boujaïdi judgment of 26 September 1997, Reports 1997-VI, p. 1992, § 39, the Boujlifa v. France judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42, and the Baghli v. France judgment of 30 November 1999 to be published in the Court’s official reports).

However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, inter alia, the Boujlifa judgment cited above, p. 2264, § 42). The Court’s task is therefore to determine whether the measure at issue struck a fair balance between the conflicting interests, namely, on the one hand, the applicant’s right to respect for his private and family life and, on the other, the prevention of disorder or crime.

The Court accepts that since 1984 the applicant, being a Slovak national, had been living mainly in the Czech Republic. However, after the dissolution of the former Czech and Slovak Federal Republic on 31 December 1992, the applicant lived there lawfully only between 4 November 1994 and 30 September 1995 notwithstanding the fact that his temporary residence permit was quashed at his own request on 20 July 1995. The Court must also consider the seriousness of the offence of which the applicant was convicted in the Czech Republic. In this connection, it notes that the Nymburk District Court  together with the Prague Regional Court sentenced the applicant to two years’ imprisonment for disorderly conduct and attempted bodily harm. The offences indisputably constituted a breach of public order and undermined the protection of the health of others. Moreover, taking into account the nature of the applicant’s previous convictions in Slovakia, these findings led to a conclusion that public safety required the applicant’s expulsion from the Czech Republic. Although the applicant’s removal from the Czech Republic would considerably affect his personal situation, the Court considers, in the light of the foregoing, and taking into account the margin of appreciation left to the Contracting States in such circumstances (see the Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, p. 610, § 41), that the decision to expel the applicant was not disproportionate to the legitimate aims pursued. Accordingly, there is no appearance of a violation of Article 8 of the Convention.

The Court adds that the applicant’s allegation that the expulsion order would also constitute a violation of his right to respect for his home was not included in his original application. This complaint must therefore be rejected for non-compliance with the six-month time-limit pursuant to Article 35 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Lastly, the applicant complains, under Article 6 §§ 1 and 3(d) and Article 8 of the Convention, taken together with Article 14, that if he was not of Roma origin, he would not have been expelled.

Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this 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 plead non-exhaustion of domestic remedies arguing that the applicant did not submit the complaint of discrimination within the meaning of Article 14 of the Convention or Article 3 § 1 of the Charter of Fundamental Rights and Freedoms to the Constitutional Court. As to the merits of the complaint, the Government consider that it is manifestly ill-founded.

The applicant claims that a disproportionate number of former Czechoslovakian citizens sentenced to expulsion have been, like him, of Roma ethnicity. Such discrimination against the Romas through the imposition of judicial expulsion constitutes a violation of Article 14 of the Convention, together with Article 6 §§1 and 3d) and Article 8 of the Convention. He stresses that as he carries a typical Roma surname which clearly indicates his Roma nationality, it should have been clear to the national courts that he is of Roma origin, as well as from his physical appearance.

The Court does not deem it necessary to consider whether the applicant has exhausted national remedies. Even assuming this to be the case, the applicant’s complaint is in any event manifestly ill-founded since the Court finds that the facts of the case do not disclose any evidence that the applicant was discriminated against by reason of his Roma origin, contrary to Article 14 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

T.L. Early J.-P. Costa
              Deputy RegistrarPresident

[Note1]To be checked.

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