THIRD SECTION
DECISION
Application no. 51493/07
by Hedviga ŽÁKOVÁ MALINOVÁ
against Slovakia
The European Court of Human Rights (Third Section), sitting on 8 November 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 21 November 2007,
Having regard to the formal agreement between the parties to settle the case friendly,
Having deliberated, decides as follows:
PROCEDURE
1. The applicant, Ms Hedviga Žáková Malinová, is a Slovak national who was born in 1983 and lives in Horné Mýto. She was represented before the Court by Mr R. Kvasnica, a lawyer practising in Piešťany.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms. M. Pirošíková.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Incident of 25 August 2006
3. In the morning of 25 August 2006 the applicant was walking on the pavement along a public road on her way to university, where she was due to take an exam that day at the department of Hungarian language and literature.
4. In so far as the applicant can recollect, she was speaking in the Hungarian language, either on her mobile phone or directly to a third party in a car that had stopped to ask for directions.
5. At approximately 7.30 a.m. two unknown individuals shouted “In Slovakia in Slovak” (Na Slovensku po slovensky) at the applicant several times.
6. As the applicant did not respond, one of the individuals grabbed her by the hair from behind and asked her whether she had not heard. The other individual then held the applicant by the elbows from behind and they pulled her into some thick bushes.
7. One of the individuals slapped the applicant in the face so hard that she started bleeding from the nose. They forced the applicant to take off her jacket, tights and earrings and to hand them her wallet, which contained cash, a credit card, an ID card and other documents.
8. One of the attackers then slapped the applicant in the face again, causing her to fall down on her back. Thereafter the applicant felt a kick to the left side of her abdomen.
9. The applicant then fainted and was unconscious for approximately ten minutes.
10. While she was knocked out, the individuals ripped the front of the applicant’s blouse all the way down, undid her bra and wrote “THE HUNGARIANS BEHIND THE DANUBE” (MAĎARI ZA DUNAJ) and “[SLOVAKIA] WITHOUT PARASITES” (SK BEZ PARAZITOV) on her blouse.
11. After the applicant had come to, she went to the university. According to witnesses, the applicant arrived bloodstained, barefoot, dirty, with a swollen face and very distressed.
12. The police and an ambulance were called and the applicant was taken to hospital, where she stayed until the following day.
13. After the incident of 25 August 2006, on the same date, an envelope was sent to the applicant by mail which contained her ID card and the documents that had been taken away from her.
14. The incident and the ensuing proceedings received widespread media coverage.
B. Investigation into the incident and remedies applied
15. On 25 August 2006 the applicant was questioned twice about the incident and an investigation was opened into it the following day.
16. On 9 September 2006 the applicant was questioned again.
17. On 11 September 2006 the investigation was discontinued with the conclusion that the incident in question had not taken place.
18. On 19 September 2006 the applicant challenged the decision by way of a complaint to the Public Prosecution Service, to which she added further grounds of complaint on 24 September and 2 October 2006.
19. On 18 October 2006 a District Prosecutor dismissed the applicant’s complaint as unfounded.
20. On 15 December 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court. She alleged a violation of Articles 3 and 13 of the Convention due to the discontinuation of the investigation.
21. On 24 May 2007 the Constitutional Court declared the complaint inadmissible. It held that, before being able to bring a claim before the Constitutional Court, the applicant should have sought a review of the contested decisions by higher levels of the Public Prosecution Service.
22. Although the applicant did not consider the remedy referred to by the Constitutional Court effective, on 13 June 2007 she filed a motion for the decision of 11 September 2006 to be reviewed by a Regional Prosecutor.
23. On 6 August 2009, the Regional Prosecutor dismissed the motion as unfounded.
24. On 19 August 2009 the applicant requested that the position of the Regional Court be reviewed by the Prosecutor General. Her request has gone unanswered.
C. Public pronouncements by the Prosecutor General
25. The following statements by the Prosecutor General in respect of the applicant’s case were reported in the media:
26. On 31 August 2007:
“I let the original file be transferred to the Office of the Prosecutor General, where it will be subjected to an analysis, so as to avoid suspicions as to whether the police or a prosecutor had or had not erred in some matters.”
27. On 13 September 2007:
“The police as well as the prosecutor erred, but we will rectify that.”
28. On 22 September 2007:
“When there is a case like this, perfect attention has to be paid to it from the very beginning and perfect work has to be done. Certain steps cannot be carried out, for example, [it is] already no longer [possible for them to] be carried out, in other words they are lost to us, because they were not carried out in compliance with the procedure. So now it will have to be worked on with further effort. [...] A policeman carries out steps and a prosecutor oversees steps. A supervising prosecutor supervises an overseeing prosecutor, and so I observe that [they] erred, all [of them] erred. [...] That period was hectic. The pressure from one side and from the other was quite great. Perhaps they were a little [unable to] professionally distance [themselves] from it and I would be glad if they learned [to do so] in future. I have, thus far, no intention to punish anybody disciplinarily.”
COMPLAINTS
29. The applicant complained under Article 3 of the Convention that the investigation into the incident of 25 August 2006 had been arbitrarily discontinued.
30. The applicant also complained under Article 13 of the Convention that she has not had an effective remedy at her disposal in respect of the violation of her rights alleged under Article 3 of the Convention.
THE LAW
31. On 29 September 2011 the Court received the text of an agreement from the Government with the following text in the Slovak language:
“Dohoda medzi sťažovateľkou a vládou Slovenskej republiky vo veci sťažnosti č. 51493/07, o ktorej koná Európsky súd pre ľudské práva
1. Vláda Slovenskej republiky pripúšťa, že v prípade sťažovateľky sú určité okolnosti, ktoré vyvolávajú pochybnosti ohľadom rešpektovania sťažovateľkiných práv zaručených v Dohovore na ochranu ľudských práv a základných slobôd.
2. S cieľom zmierneho vyriešenia tohto prípadu vláda Slovenskej republiky vo forme komuniké pre tlač vysloví poľutovanie nad prípadom sťažovateľky.
3. Sťažovateľka prehlasuje, že nemala a nemá voči Slovenskej republike žiadne finančné nároky. Zároveň sa vzdáva všetkých prípadných ďalších nárokov voči Slovenskej republike v súvislosti so skutkovými okolnosťami, ktoré tvoria podstatu sťažnosti č. 51493/07.
4. Obe strany sa zaväzujú, že nebudú žiadať o predloženie prípadu veľkej komore podľa článku 43 ods. 1 Dohovoru o ochrane ľudských práv a základných slobôd.
5. Obe strany si uvedomujú, že táto dohoda bude v prípade jej akceptovania Európskym súdom pre ľudské práva predstavovať konečné urovnanie prípadu a jej splnenie bude predmetom dohľadu zo strany Výboru ministrov Rady Európy.”
32. The Government also submitted a translation of this text into English, which reads as follows:
“Agreement between the applicant and the Government of the Slovak Republic in the case no. 51493/07 pending before the European Court of Human Rights
1. The Government of the Slovak Republic admit that there are some circumstances in the case of the applicant that invoke doubts as to the respect of the applicant’s tights guaranteed in the European Convention on Human Rights.
2. With a view to securing a friendly settlement of this case the Government of the Slovak Republic in the form of press release will express their regret for the case of the applicant.
3. The applicant declares that she had not and still has no financial requirement against the Slovak Republic. In the same time, she waives any further claims against the Slovak Republic in respect of the facts of the application no. 51493/07.
4. Both parties undertake not to request the case to be referred to the Grand Chamber under Article 43 § 1 of the European Convention on Human Eights.
5. Both parties are aware that this arrangement, after the acceptation thereof by the European Court of Human Rights, will constitute the final resolution of the case and its implementation will be subject to the supervision of the Committee of Ministers of Council of Europe.”
33. The agreement is dated 28 September 2011 and signed, on behalf of the Government, by the Minister of Justice and, on behalf of the applicant, by her legal representative.
34. A copy of the Government’s communication was transmitted to the applicant’s legal representative who has received it.
35. The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy