AS TO THE ADMISSIBILITY OF
Application No. 24157/94
by Arpád MATEJKA
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
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 19 July 1993 by
Arpád MATEJKA against the Slovak Republic and registered on 18 May 1994
under file No. 24157/94;
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 a Slovak citizen born in 1939. He is a member
of the National Council (Parliament) of the Slovak Republic and resides
in Trnava.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The particular circumstances of the case
In March 1992 the applicant received a certificate issued by the
Ministry of the Interior pursuant to Act No. 451/1991 (see Relevant
domestic law and practice below). He was then head of the Trnava
District Office. According to the certificate the applicant was
registered as a person mentioned in Section 2 para. 1 (b) of the
aforesaid Act. Although the certificate was confidential, its contents
were later revealed in the media.
On 11 May 1992 the applicant requested judicial review of the
certificate. On 15 July 1992 the Regional Court (Krajsky súd) in
Bratislava discontinued the proceedings introduced by the applicant as
under the law in force certificates issued to persons mentioned in
Section 2 para. 1 (b) of Act No. 451/1991 cannot be reviewed by
administrative courts. On 30 October 1992 the Supreme Court (Najvyssí
súd) upheld the Regional Court's decision. The decision of the Supreme
Court was served on 14 December 1992.
The applicant stood as a candidate in the parliamentary election
for the office of President of the Supreme Audit Office held on
25 June 1993. Although it was not formally required, a member of the
Parliament moved for confirmation, by those who had proposed the
candidates, that the nominees met the requirements of Act No. 451/1991.
The confirmation was given in respect of the other candidate. The
chairman then invited the applicant to submit a similar confirmation
by himself. The applicant declared that he had neither collaborated
with anybody nor signed anything. This declaration met with laughter
in the meeting room and was also commented upon in the press.
In the subsequent two polls the applicant received 68 and 67
votes. The other candidate received 59 votes. However, in order to
be elected 70 and 69 votes respectively were required. Thus neither
of the candidates was elected. Pursuant to the rules of procedure a
new election was held in which different candidates had to be
presented.
In September 1993 the applicant introduced a petition (podnet)
with the Constitutional Court (Ústavny súd). He complained that by
virtue of Act No. 451/1991 his rights were violated and requested that
the constitutionality of this Act should be examined. On 24 November
1993 the Constitutional Court rejected the applicant's petition as
individuals lack capacity to introduce proceedings on constitutional
conflicts.
Relevant domestic law and practice
Act No. 451/1991 of 4 October 1991 lays down supplementary
requirements for the holding of certain important posts and functions
in State organs and institutions which are filled by election,
designation or appointment. The Act prevents persons mentioned in
Section 2 para. 1 from exercising, for a period which expires on
31 December 1996, the functions enumerated in Section 1.
According to Section 2 para. 1 (b) the functions covered by the
Act can be exercised only by persons who are not registered in the
State Security (former secret police) files as "resident, agent,
conspiratorial flat holder, informer or ideological collaborator" of
the State Security. The fact that a person meets the requirements of
Section 2 para. 1 (b) of the Act is to be proved by means of a
certificate issued by the Ministry of the Interior.
It has been established by the judicial doctrine and the relevant
case-law that persons who consider themselves adversely affected by the
certificate can seek redress before civil courts by means of an action
for protection of their honour and reputation pursuant to Section 11
et seq. of the Civil Code.
COMPLAINTS
The applicant complains that Act No. 451/1991 is discriminatory,
violates the principle of presumption of innocence and does not provide
for a judicial review of the certificates issued by the Ministry of the
Interior.
The applicant further alleges that by application of Act No.
451/1991 he was convicted of a criminal offence and incurred the
penalty of being banned from certain posts in State organs and
institutions. He alleges that his dignity and good reputation had
suffered. He invokes Article 5 paras. 1 (b) and 4 and Article 6
paras. 1, 2 and 3 of the Convention.
Finally, the applicant complains that by the decision to apply
Act No. 451/1991 in the election for the office of President of the
Supreme Audit Office he was discriminated against and that his right
to promotion in employment was violated. He also complains that the
competent organs refused to protect his rights. The applicant invokes
Articles 14, 17 and 60 of the Convention in this respect.
THE LAW
1. The applicant alleges a violation of his right to liberty and
security of person guaranteed by Article 5 (Art. 5) of the Convention.
He further alleges that by virtue of Act No. 451/1991 he was
charged with and convicted of a criminal offence without having been
granted the guarantees provided for in Article 6 paras. 1, 2 and 3
(Art. 6-1, 6-2, 6-3) of the Convention.
Under Article 14 (Art. 14) of the Convention the applicant
complains of being discriminated against as (i) the Act No. 451/1991
prevents him from holding certain posts and functions in State organs
and institutions, and (ii) he was not elected President of the Supreme
Audit Office.
The Commission first observes that the applicant has not been
deprived of his liberty. Accordingly, Article 5 (Art. 5) of the
Convention is not applicable to the present case.
Secondly, it is to be noted that in the present case no criminal
proceedings were brought against the applicant. The Ministry of the
Interior issued the applicant with a certificate alleging that he was
registered as a person mentioned in Section 2 para. 1 (b) of Act No.
451/1991. However, the issue of this certificate cannot be regarded
as a criminal charge within the meaning of Article 6 (Art. 6) of the
Convention.
To the extent that the applicant complains of having been
discriminated against, the Commission recalls that Article 14 (Art. 14)
of the Convention applies only to the enjoyment of the rights and
freedoms guaranteed by the Convention.
However, in accordance with the Convention organs' case-law the
access to civil service is not a right guaranteed by the Convention
(cf., e.g., Eur. Court H.R., Glasenapp judgment of 28 August 1986,
Series A no. 104, p. 25, para. 48) and the applicant has not shown in
what other way he was discriminated against.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention in that the certificate issued to him by
the Ministry of the Interior could not be reviewed by administrative
courts.
However, the Commission finds that the final decision regarding
this complaint had been given by the Supreme Court on 30 October 1992
and served on 14 December 1992, which is more than six months before
the date on which the application was submitted. The applicant
therefore failed to comply with the six months' time limit laid down
in Article 26 (Art. 26) of the Convention.
It follows that this part of the application has to be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
3. The Commission finds that in substance the application may raise
an issue under Article 8 (Art. 8) of the Convention to the extent that
the applicant complains of a violation of his rights following (i) the
delivery of the certificate, and (ii) disclosure of its contents in the
media.
Article 8 (Art. 8) of the Convention, as far as relevant,
guarantees to everyone a right to respect for his private life.
The Commission does not deem it necessary to examine whether the
facts complained of affected the applicant's rights guaranteed by
Article 8 (Art. 8) of the Convention for the following reasons.
In the present case the courts refused the applicant's request
to review the certificate as they lacked jurisdiction in the matter.
The Constitutional Court rejected the request for review of the
constitutionality of Act No. 451/1991 as the applicant lacks capacity
to introduce proceedings on constitutional conflicts.
However, in accordance with the case-law of domestic courts the
applicant could have sought redress in this respect before a civil
court by means of an action for protection of his honour and reputation
pursuant to Section 11 et seq. of the Civil Code. Since the applicant
failed to do so he has not complied with the requirement as to the
exhaustion of domestic remedies laid down in Article 26 (Art. 26) of
the Convention.
It follows that this part of the application has to be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
4. Finally, the applicant complains of a violation of Articles 17
and 60 (Art. 17, 60) of the Convention. However, the Commission
considers that these complaints do not raise any separate issue under
the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy