AS TO THE ADMISSIBILITY OF
Application No. 38855/97
by Alica MALFATTI
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 September 1997
by Alica MALFATTI against the Slovak Republic and registered on
3 December 1997 under file No. 38855/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national. She was born in 1932 and
resides in Rome. Before the Commission the applicant is represented
by Mr S. Detvai, a lawyer practising in Bratislava.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 27 June 1945 Slovak authorities handed the applicant's father,
Ján Eszterházy, over to Soviet security forces at the latter's request.
He was to be returned to Slovak authorities within ten days but was
deported to the Soviet Union.
On 14 August 1946 criminal proceedings were brought against the
applicant's father in Slovakia in accordance with the Slovak National
Council's Order No. 33/1945 (see "The relevant domestic law" below).
On 10 June 1947 the National Court (Národny súd) issued an arrest
warrant against the applicant. In the arrest warrant, the court noted
that the applicant's father was staying at an unknown place abroad.
On 17 August 1947 the public prosecutor indicted the applicant's
father for treason and proposed that the proceedings be continued in
his absence.
On 16 September 1947 the National Court refused to stay the
proceedings until the whereabouts of the applicant's father became
known as requested by the defence counsel. On the same day the
National Court convicted the applicant's father of treason and
sentenced him to the death penalty. The applicant's father was further
deprived of civil rights and his property was confiscated.
In 1949 Soviet authorities extradited the applicant's father to
Czechoslovakia. Following an individual pardon granted by the
president of Czechoslovakia the death penalty imposed on the
applicant's father was changed to a life sentence. The applicant's
father died in prison in 1957.
On 8 May 1995 the applicant requested the General Prosecutor's
Office to lodge a complaint about breach of the law (staznost pre
porusenie zákona) in the proceedings leading to her father's
conviction. The applicant alleged, inter alia, that the proceedings
had been unlawful as her father could not defend himself before the
National Court.
On 20 May 1996 a public prosecutor of the General Prosecutor's
Office dismissed the applicant's request. He pointed out that the
applicant's father had been convicted pursuant to a special law of
retributive nature which had been temporarily enacted at the end of the
World War II. The public prosecutor further recalled that this law had
ceased to be effective on 31 December 1947 and concluded that the
extraordinary remedy set out in Section 266 et seq. of the Code of
Criminal Procedure could not be used in the case of the applicant's
father.
On 3 April 1997 the General Prosecutor informed the applicant
that Section 266 et seq. of the Code of Criminal Procedure could not
be used in the case of her father as the latter had been convicted in
the context of extraordinary proceedings under a special law which had
ceased to be effective on 31 December 1947. The General Prosecutor
expressed his opinion that a review of the judgment in question would
only be possible if a law was enacted to this effect.
B. The relevant domestic law
The applicant's father was convicted of an offence under and in
proceedings conducted pursuant to Order No. 33/1945 on Punishment of
Fascist Criminals, Occupants, Traitors and Collaborators and on the
Establishment of People's Judiciary (Nariadenie o potrestaní
fasistickych zlocincov, okupantov, zradcov a kolaborantov a o zriadení
ludového súdnictva) of 15 May 1945, as amended.
Under Order No. 33/1945 special people's courts (including the
National Court) were established. People's courts ceased to exist and
the relevant legal rules governing their functioning ceased to be
effective on 31 December 1947.
Pursuant to Section 266 para. 1 of the Code of Criminal
Procedure, the General Prosecutor may challenge before the Supreme
Court (Najvyssí súd), by means of a complaint about breach of the law,
a final decision of a court or other authority which was delivered as
a result of miscarriage of justice.
Section 268 para. 2 of the Code of Criminal Procedure provides
that when the Supreme Court establishes, upon a complaint lodged by the
General Prosecutor, that there was a breach of the law as a result of
a decision or proceedings which preceded its delivery, it shall deliver
a judgment to this effect.
Under Section 269 para. 2 of the Code of Criminal Procedure, if
the Supreme Court finds that there was a breach of the law to the
disadvantage of the accused person, it shall quash the decision in
question or the relevant part thereof.
If a new decision on the issue in question is required, the
Supreme Court shall, pursuant to Section 270 para. 1 of the Code of
Criminal Procedure, order the authority in question to re-examine the
case and to deliver a new decision.
COMPLAINTS
The applicant complains that the General Prosecutor refused to
lodge a complaint about breach of the law in her father's case and thus
deprived her of the possibility of having the charges against her
father determined in proceedings that would conform to the law. She
alleges a violation of Article 6 paras. 1 and 3 (a), (b), (c) and (d)
of the Convention, and of Articles 2 para. 1 and 4 para. 2 of Protocol
No. 7.
THE LAW
The applicant complains about the refusal, by the General
Prosecutor, to lodge a complaint about breach of the law in her
father's case. She alleges a violation of Article 6 (Art. 6) of the
Convention and Articles 2 para. 1 and 4 para. 2 of Protocol No. 7
(Art. P7-2-1, P7-4-2) which provide, so far as relevant, as follows:
Article 6 (Art. 6) of the Convention
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
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;"
...
Protocol No. 7, Article 2 para. 1 (P7-2-1) of the Convention
"Everyone convicted of a criminal offence by a tribunal shall
have the right to have his conviction or sentence reviewed by a
higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law."
Protocol No. 7, Article 4 (P7-4) of the Convention
"1. No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that
State.
2. The provisions of the preceding paragraph shall not prevent
the reopening of the case in accordance with the law and penal
procedure of the State concerned, if there is evidence of new or
newly discovered facts, or if there has been a fundamental defect
in the previous proceedings, which could affect the outcome of
the case."
...
To the extent that the applicant complains that her father's
right to have his conviction and sentence reviewed by a higher tribunal
was not respected, the Commission recalls that the applicant's father
was convicted and sentenced by a judgment delivered by the National
Court on 16 September 1947. Since the Commission can only deal with
applications against the Slovak Republic concerning matters which are
subsequent to 18 March 1992 (see No. 23131/93, Dec. 4.3.96, D.R. 85-B,
p. 65), the criminal proceedings leading to the conviction of the
applicant's father fall outside the competence ratione temporis of the
Commission.
As regards the applicant's complaints under Article 6 (Art. 6)
of the Convention concerning the dismissal of her request for a
complaint about breach of the law to be lodged in her father's case,
the Commission notes that pursuant to Section 266 para. 1 of the Code
of Criminal Procedure the use of this extraordinary remedy was within
the discretionary power of the General Prosecutor, the relevant
provisions imposing no formal obligations on him in this respect.
Accordingly, Section 266 para. 1 of the Code of Criminal
Procedure cannot be held to have introduced a remedy directly available
to the applicant in domestic law. In accordance with the Commission's
case-law, the refusal by the General Prosecutor to lodge a complaint
about breach of the law as requested by the applicant cannot affect the
date of the final decision in the case of the applicant's father (see
No. 9136/80, Dec. 10.7.81, D.R. 26, pp. 242, 244).
In the Commission's view, the General Prosecutor, when deciding
on the applicant's request, did not determine or re-determine any
"criminal charge" against the applicant's father (see, mutatis
mutandis, No. 19155/92 and 21655/93, Dec. 16.5.95, D.R. 81-A, pp. 5,
13). Furthermore, the Convention does not guarantee, as such, a right
to review of a trial (see No. 14739/89, Dec. 9.5.89, D.R. 60, pp. 296,
301). The proceedings before the General Prosecutor fall, therefore,
outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
To the extent that the applicant alleges a violation of
Article 4 para. 2 of Protocol No. 7 (P7-4-2) the Commission considers
that no right to a retrial can be deduced from this provision under
which it is possible, in the context of protection of freedom from
double jeopardy set out in para. 1 of the same Article, to re-open a
case under certain circumstances. Accordingly, this complaint is also
outside the scope of the Convention and the protocols thereto.
It follows that the application is incompatible with the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy