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FOURTH
SECTION
CASE OF MIKOLAJOVÁ v. SLOVAKIA
(Application
no. 4479/03)
JUDGMENT
STRASBOURG
18 January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mikolajová
v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Mihai Poalelungi,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4479/03) against the
Slovak Republic lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Slovak national,
Mrs Helena Mikolajová (“the applicant”), on
17 January 2003.
- The
applicant was represented by Mrs I. Rajtáková, a lawyer
practising in Košice. The Government of the Slovak Republic
(“the Government”) were represented by Mrs A.
Poláčková and Mrs M. Pirošíková,
their successive Agents.
- The
applicant complained that the conclusion in a police decision that
she had committed a criminal offence, despite the complaint against
her having been dropped, breached her right to the presumption of
innocence under Article 6 § 2 of the Convention and her right to
protection of her reputation under Article 8.
- On
27 March 2006 the President of the Fourth Section of the Court to
which the case had been allocated decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Košice.
- On
30 June 2000 the applicant's husband filed a complaint with the
police alleging that the applicant had beaten and wounded him on
25 June 2000.
- On
3 July 2000 the police department in Košice issued a decision
by which it dropped the case on the ground that the applicant's
husband did not agree to criminal proceedings being brought against
her. The decision stated that although the police “investigation”
had established that the applicant had committed a criminal offence,
criminal prosecution was barred as the victim, the applicant's
husband, had not given his consent as required under Article 163 of
the Criminal Procedure Code. The applicant was not notified of this
decision, nor is there any evidence in the case file that she was
questioned or otherwise made aware of her husband's complaint.
- On
28 January 2002 a health insurance company wrote to the applicant
asking her to reimburse the costs of her husband's medical treatment.
According to the letter, the applicant's husband had been treated in
a hospital on 25 June 2000 as a result of injuries which
the applicant had inflicted on him. Reference was made, inter
alia, to the decision issued by the police department in Košice
on 3 July 2000.
- In
a letter dated 3 July 2002 the insurance company explained the
position to the applicant in reply to her request. A copy of the
police decision of 3 July 2000 was enclosed with the letter which was
delivered to the applicant's lawyer on 15 July 2002. The relevant
part of the decision of 3 July 2000 read as follows:
“The investigation showed that [the applicant's]
action met the constituent elements of the offence of causing injury
to health pursuant to Article 221(1) of the Criminal Code in that she
had deliberately inflicted an injury on another person.”
- On
16 July 2002 the applicant informed the competent police department
in Košice that the text of its
decision violated her right to be presumed innocent. She requested an
apology and that the police inform the health insurance company of
this breach. On 9 August 2002 the director of the police department
replied to the applicant, stating that the above decision had been
given in accordance with the relevant law.
- In
a letter of 17 July 2002 the applicant requested that the
Košice II District
Prosecutor's Office quash the police decision of 3 July 2000.
On 26 August 2002 the applicant was informed that the decision was
not contrary to constitutional principles. The letter stated, in
particular, that the task of the police had been to determine whether
a justified reason existed to consider that a particular person had
committed the offence in issue. The relevant text of the contested
decision had been drafted and was to be read in that context.
- On
12 September 2002 the applicant filed a complaint with the
Constitutional Court. She alleged, inter alia, that by issuing
its decision of 3 July 2000, the police department in Košice
had violated her constitutional rights to be presumed innocent
and to respect for her honour and reputation.
- On
27 November 2002 the Constitutional Court rejected the complaint as
having been filed outside the statutory two month time-limit. The
decision referred to section 53 (3) of the Constitutional Court Act
of 1993, which provided that the time-limit was to be counted from
the day on which the plaintiff learned or could have learned about
the contested measure. In rejecting the applicant's complaint as out
of time, the Constitutional Court took 3 July 2000, the date on which
the police decision was issued, as the key date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of the Slovak Republic
- Article
50 § 2 of the Slovak Constitution provides that “Every defendant
against whom criminal proceedings are pending shall be considered
innocent until the court establishes his/her guilt by a final
judgment.”
B. Criminal Procedure Code (Act No. 141/1961 Coll.)
- The
Criminal Procedure Code, as in force at the relevant time, provided
as follows at Article 2 § 2:
“A defendant against whom criminal proceedings
have been instituted must not be considered guilty until the court
establishes his/her guilt by a final judgment.”
- Article
163 (a) (1) required the victim's consent for a criminal prosecution
to be pursued for a listed number of offences, including the offence
of causing bodily injury, in cases in which the perpetrator was a
relative of the victim.
- Article
11 § 1 (h) provided that a criminal prosecution could not be
initiated, and if already initiated, could not be continued and had
to be discontinued, in the event that consent as required under
Article 163 (a) (1) was not given or subsequently withdrawn.
C. Civil Code
- The
Civil Code in its relevant provisions reads as follows:
Article 11
“Every natural person shall have the right to
protection of his or her personal integrity, in particular his or her
life and health, civil and human dignity, privacy, reputation and
expressions of a personal nature.”
Article 13
“1. Every natural person shall have the
right in particular to request an order restraining any
unjustified interference with his or her personal integrity, an order
cancelling out the effects of such interference and an award of
appropriate compensation.
2. If the satisfaction afforded under
paragraph 1 of this Article is insufficient, in particular
because the injured party's dignity or social standing has been
considerably diminished, the injured party shall also be entitled to
financial compensation for non pecuniary damage.
3. When determining the amount of compensation
payable under paragraph 2 of this Article, the court shall
take into account the seriousness of the harm suffered by the injured
party and the circumstances in which the violation of his or her
rights occurred.”
Article 16
“A person who caused damage by infringement of the
right to protection of personal integrity, shall be liable for such
damage under provisions of this law on liability for damage.”
D. Civil Procedure Code
- Article
134 of the Civil Procedure Code provides the following:
“Letters issued by the courts of the Slovak
Republic or by other state authorities within the limits of their
powers, as well as letters which were declared public upon special
regulation, confirm that it is an order or declaration of an
authority which issued the letter, and unless the contrary is proved,
also the verity of what is to be approved or confirmed therein.”
E. Constitutional Court Act 1993
- Section
53 (3) of the Constitutional Court Act of 1993 provides that a
complaint to the Constitutional Court can be filed within two months
from the final effect of a decision or from the date of a contested
measure or notification of another interference with a person's
rights. In the case of measures or other interferences, the
time-limit is to be counted from the date on which the plaintiff
learned or could have learned about the contested measure or other
interference complained of. Section 50 (2) provides that a copy of
the legal decision, measure or any evidence proving another kind of
interference shall accompany a complaint.
THE LAW
I. ADMISSIBILITY
A. The Government's preliminary objection
1. The parties'
submissions
- The
Government maintained that the application was inadmissible as the
applicant had failed to exhaust all available domestic remedies.
In particular, she had not pursued an action for the protection
of her personal integrity under Articles 11 et seq. of the Civil
Code. They relied on the Court's inadmissibility decision in the case
of Babjak and Others v. Slovakia (dec.), no.73693/01, 30
March 2004 in which the Court found the first applicant's complaint
under Article 6 § 2 of the Convention to be inadmissible for
non–exhaustion as it considered that an action under Articles
11 et seq. of the Civil Code was, in the circumstances, capable of
redressing his situation.
- The
Government acknowledged that although Babjak concerned a
police decision stating that the applicant had committed a criminal
offence, though a criminal prosecution could not be pursued against
him due to his young age, in that case the police had issued a later
decision clarifying that his conduct had not met the constituent
elements of a criminal offence. Notwithstanding, the Government
maintained that in the present case an action under Articles 11 et
seq. of the Civil Code was also an available and effective domestic
remedy. An ordinary court dealing with such an action would examine
whether the statement by the police infringed the applicant's right
to be presumed innocent and her right to respect for her private
life, given that no criminal prosecution had been initiated and that
the courts had not pronounced either way on her guilt or innocence.
In the event that the ordinary court considered that the applicant's
rights had been breached, it was open to it to order the police to
issue an apology and/or award the applicant financial compensation
for any non-pecuniary damage caused to her as a result. In
particular, the applicant could have relied on the request for
reimbursement of the costs of her husband's medical treatment as the
basis for her action.
- The
Court had not accepted the effectiveness of this particular remedy in
the context of other applications against Slovakia, finding that
judicial practice showed that the remedy was used predominantly in
defamation actions (see Kontrová v. Slovakia (dec.),
no. 7510/04, 13 June 2006). However, the Government argued
that in cases more akin to the present, the Court had deemed the
remedy to be effective and one which applicants should consequently
be required to exhaust (Babjak (cited above) and Lexa v.
Slovakia (dec.), no. 54334/00, 5 July 2005).
-
Lastly, as regards the applicant's contention that she only received
a copy of the police decision on 15 July 2002, the Government
asserted that she should have been aware of the decision in question
by 28 January 2002, as the insurance company had made a direct
reference to it in its request for reimbursement of that date. The
applicant had therefore failed to avail herself of this available
domestic remedy, the filing of a complaint with the Constitutional
Court, as she had not complied with the time-limits laid down in
domestic law.
- The
applicant asserted that a civil action under Articles 11 et seq. of
the Civil Code would not allow her to reverse the impugned decision.
The case of Babjak on which the Government sought to rely
contained a crucial distinction, namely that the original police
decision had been replaced by a later official decision unequivocally
declaring that it had not been proved that the applicant had
committed any crime.
- The
applicant replied that the police decision had clearly been delivered
to her on 15 July 2002. Consequently, she had been within the
two-month statutory time-limit required under section 53 (3) of the
Constitutional Court Act of 1993 (see paragraph 20 above) when filing
her complaint with the Constitutional Court on 12 September 2002.
She contested the Government's assertion that the reference to
the police decision by the insurance company on 28 January 2002 was
enough for her to bring a complaint to the Constitutional Court. She
contended that she had no knowledge of the specific content of the
decision and cited in this regard the requirement under section 50
(2) of the Constitutional Court Act that a copy of the contested
decision be attached to any complaint.
- The
Government, by their own admission, had recognised that the applicant
did not have any procedural status as regards her husband's
complaint, as criminal proceedings had never been instituted. This,
she argued, would have made it all the more difficult for her to have
gained knowledge or possession of a copy of the contested police
decision any earlier. Moreover, the Constitutional Court, when
rejecting her complaint as out of time, had taken the date of the
issuance of the police decision, namely 3 July 2000, as the key
date. This ran counter to the provision in section 53 (3)
of the Constitutional Court Act which stipulated that the time limit
was to be counted from the date on which the plaintiff learned or
could have learned about the contested measure or other interference
complained of.
2. The Court's assessment
- The
Court points out that the purpose of Article 35 of the Convention 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 Convention institutions.
Consequently, States are dispensed from answering for their acts
before an international body before they have had an opportunity to
put matters right through their own legal system. The rule of
exhaustion of domestic remedies referred to in Article 35 of the
Convention requires that normal recourse should be had by an
applicant only to remedies that relate to the breaches alleged and
which, at the same time, are available and sufficient. The existence
of such remedies must be sufficiently certain not only in theory but
also in practice, failing which they will lack the requisite
accessibility and effectiveness; it falls to the respondent State to
establish that these various conditions are satisfied (see Selmouni
v. France [GC], no. 25803/94, §§ 74 and 75,
ECHR 1999-V, among other authorities).
- Article
35 provides for a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the complaints invoked and offered reasonable prospects of success
(see Akdivar and Others v. Turkey, 16 September 1996, Reports
of Judgments and Decisions 1996-IV, § 68).
- The
Court would emphasise that the application of this rule must make due
allowance for the context. Accordingly, it has recognised that
Article 35 must be applied with some degree of flexibility and
without excessive formalism (see Cardot v. France, 19 March
1991, Series A no. 200, § 34). It has further
recognised that the rule of exhaustion of domestic remedies is
neither absolute nor capable of being applied automatically; in
reviewing whether the rule has been observed, it is essential to have
regard to the particular circumstances of the individual case (see
Van Oosterwijck v. Belgium, 6 November 1980, Series A
no. 40, § 35). This means, amongst other things, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants (see Akdivar and Others, cited above, § 69 and
Demopoulos and Others v. Turkey (dec.), nos. 46113/99,
3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and
21819/04, §§ 69-70, ECHR 2010 ...).
- Turning
to the present case, the Court notes the Government's reliance on the
inadmissibility decision in the case of Babjak (cited above),
in which it held that a civil action under Articles 11 et seq. of the
Slovakian Civil Code was in principle capable of remedying the first
applicant's situation. In Babjak, a police decision had
similarly stated that the applicant had committed a criminal act,
even though no criminal proceedings had been instituted against him
due to his lacking criminal responsibility on account of his young
age. Notwithstanding, the Court considers it to be of crucial
importance that although the impugned decision in Babjak was
never quashed, it was nevertheless supplanted by a later police
decision which unequivocally clarified that it had not been
established that the applicant's actions had constituted a criminal
offence. In the Court's view, this is sufficient to distinguish the
facts of the present case from those of the Babjak decision on
which the respondent Government seek to rely. In this respect, it is
clear that an action under Articles 11 et seq. of the Civil Code,
allows for non-pecuniary compensation in the event that an “injured
party's dignity or social standing has been considerably diminished”
(see paragraph 18 above). It has not been shown however that any
action under the Civil Code would have allowed the present applicant
an opportunity to seek a subsequent official retraction and
clarification from the police that it had never been proved that she
had committed a criminal act, as had been afforded to the applicant
in Babjak.
- Moreover,
the Court considers it highly unlikely that the civil courts, when
exercising their jurisdiction in the context of proceedings for
compensation under the Civil Code, would review the substance of
police decisions which were issued in the course of criminal
complaints or proceedings, regardless of whether they were ultimately
dropped or discontinued. In this connection, the Court recalls its
judgment in the case of Borovský v. Slovakia, no.
24528/02, 2 June 2009 which concerned the right to be
presumed innocent under Article 6 § 2 of the Convention.
The Court dismissed the Government's objection in Borovský
that the applicant had failed to exhaust domestic remedies by
omitting to pursue an action under Articles 11 et seq. of the Civil
Code for protection of his personal integrity. In declaring the
application admissible, the Court noted at paragraph 39 of its
judgment that the Constitutional Court had addressed the merits of
that applicant's complaint even though he had not first pursued an
action under the Civil Code against the police officers whom he
alleged had violated his right to be presumed innocent. Given the
domestic legal obligation to use all other available remedies prior
to lodging a complaint with the Constitutional Court, the Court found
that the Government's objection in Borovský as to
non exhaustion could not be upheld.
- In
light of the aforementioned considerations, the Court takes the view
that its finding in Babjak does not bind it in its
consideration of the effectiveness of a civil action under Articles
11 et seq. of the Civil Code in the particular context and
circumstances of the instant case. In this connection, the Court
recalls that an applicant who has exhausted a remedy that is
apparently effective and sufficient cannot be required also to have
tried others that were available but probably no more likely to be
successful (see T.W. v. Malta [GC], no. 25644/94, § 34,
29 April 1999, Okkalı v. Turkey, no. 52067/99,
§ 60, ECHR 2006 XII (extracts) and Lazoroski v. “the
former Yugoslav Republic of Macedonia”, no. 4922/04, § 37,
8 October 2009, among other authorities). The Court considers
that in the particular circumstances of the present case the
applicant cannot be reproached for having lodged a complaint with the
Constitutional Court alleging a violation of her constitutional
rights to be presumed innocent and to respect for her honour and
reputation. It notes, in this respect, that this was the course of
action pursued by the applicant in the Borovský case,
which ultimately led to the Court rejecting the Government's
preliminary objection as to non-exhaustion of domestic remedies. The
Court further observes that in the present case, the Constitutional
Court made no reference to any failure on the applicant's part to
exhaust all other available remedies first, but rather dismissed her
complaints on the sole ground that they were out of time.
- The
Court accordingly finds that the Government have failed to show, with
reference to demonstrably established consistent case-law in cases
similar to the applicant's, that their interpretation of the scope of
the action for protection of personal integrity was, at the material
time, sufficiently certain not only in theory but also in practice
and offered at least some prospects of success.
- As
regards the Government's contention that the applicant should be
taken to have been aware of the police decision as of 28 January
2002, when the health insurance company referred to it in its request
for reimbursement, the Court observes that under the applicable
domestic law the applicant was required to enclose a copy of the
contested decision together with any complaint she wished to make to
the Constitutional Court (see paragraph 20 above, as relied on by the
applicant). In the Court's view, the applicant could not reasonably
have been expected to lodge a complaint with the Constitutional Court
before having in her possession the full text of the police decision
in question, which was eventually delivered to her on 15 July
2002. It also takes into account in this connection the
acknowledgment by the Government that the applicant did not have any
procedural status as regards her husband's complaint, as criminal
proceedings against her had never been instituted. The Court is
willing to accept the applicant's contention that this made it even
more difficult in the circumstances for her to have lodged a
complaint with the Constitutional Court any earlier.
-
The Government's objection as to the exhaustion of domestic remedies
therefore cannot be sustained.
B. Compliance with other admissibility criteria
1. The complaint under Article 6 § 2 of the Convention
- The
applicant complained that the conclusion in the police decision of
3 July 2000 violated her right to be presumed innocent under
Article 6 § 2 of the Convention which reads as
follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
(a) The parties' submissions
- The
applicant maintained that the police decision in question was an
official decision emanating from a State authority which purported to
confirm that she had committed a crime, whereas criminal proceedings
had never been brought against her. This constituted a breach of her
rights under Article 6 & 2 of the Convention, as well as the
provisions of the Constitution of the Slovak Republic and the
domestic Code of Criminal Procedure (see paragraphs 14 and 15 above).
- The
Government did not explicitly contest the applicability of Article 6
of the Convention. They rather argued that the text of the police
decision reflected a state of suspicion that the applicant had
committed a criminal offence and could not in the circumstances be
considered to be a statement of fact or opinion, since it was issued
prior to the initiation of any criminal prosecution. Moreover, a
criminal prosecution had not been possible under the applicable
domestic law as the applicant's husband had not given his consent as
required under Article 163 (a) (1) of the Criminal Procedure Code
(see paragraph 16 above).
(b) The Court's assessment
- The
Court must consider whether Article 6 of the Convention applies in
the instant case. It must examine whether the applicant was the
subject of a “charge” for the purposes of Article 6
§ 2 of the Convention. That concept is “autonomous”;
it has to be understood within the meaning of the Convention and not
solely within its meaning in domestic law. It may thus be defined as
“the official notification given to an individual by the
competent authority of an allegation that he has committed a criminal
offence”, a definition that also corresponds to the test
whether “the situation of the [suspect] has been substantially
affected” (see, for example, the Deweer v. Belgium
judgment of 27 February 1980, Series A no. 35, p. 22,
§ 42, and p. 24, § 46; and the Eckle v.
Germany judgment of 15 July 1982, Series A no. 51,
p. 33, § 73, cited in Serves v. France, 20
October 1997, § 42, Reports of Judgments and Decisions
1997 VI). A “charge” may in some instances take the
form of other measures which carry the implication of such an
allegation and which likewise substantially affect the situation of
the suspect (see Foti and Others v. Italy, 10 December 1982, §
52, Series A no. 56).
- The
legislation of the State concerned is certainly relevant, but it
provides no more than a starting point in ascertaining whether at any
time there was a "criminal charge" against the applicant
(see, mutatis
mutandis, the Engel and Others v. the
Netherlands judgment of 8 June 1976, Series A no. 22, p. 35, §
82, and the König v. Germany judgment of 28 June
1978, Series A no. 27, p. 30, § 89). The prominent place held in
a democratic society by the right to a fair trial favours a
"substantive", rather than a "formal", conception
of the "charge" referred to by Article 6; it impels the
Court to look behind the appearances and examine the realities of the
procedure in question in order to determine whether there has been a
"charge" within the meaning of Article 6 (see the
above-mentioned Deweer judgment, p. 23, § 44).
In particular, the applicant's situation under the domestic legal
rules in force has to be examined in the light of the object and
purpose of Article 6, namely the protection of the rights of the
defence (see the Court's judgment in the case of Adolf v. Austria,
26 March 1982, § 30, Series A no. 49).
- In
the present case, the applicant was not and could not have been
formally charged with a criminal offence under the domestic legal
rules in place at the time, as her husband clearly did not consent to
the pursuit of criminal proceedings against her. Notwithstanding, the
Court must still consider whether the applicant could be said to have
been officially notified or otherwise “substantially affected”
following her husband's filing of a criminal complaint against her on
30 June 2000. The Court observes in this connection that the
applicant was not aware of the impugned police decision until 28
January 2002, when a health insurance company made reference to it in
its claim for reimbursement of medical expenses. This was
approximately one year and a half after the case against the
applicant had been dropped by the Košice police department on
the basis of her husband's refusal to consent to the pursuit of
criminal proceedings against her. In other words, it appears that the
applicant's husband in effect withdrew his complaint concerning the
applicant's alleged behaviour on 25 June 2000, thereby barring the
initiation of a criminal prosecution. Nor does it emerge from any of
the documents in the case file that the applicant was questioned,
summoned or in any other way notified by the police or any other
domestic authority of her husband's complaint of 30 June 2000.
Rather, the applicant submits that she first became aware of this
complaint through the health insurance company's request in 2002, by
which time the case against her had been dropped and closed.
- In
light of the foregoing, the Court considers that the applicant was
not “substantially affected” so as to render Article 6 of
the Convention applicable. In the Court's view, Article 6 § 2
was inapplicable to the matters complained of. Accordingly, this part
of the application must be declared inadmissible as being
incompatible ratione materiae under Article 35 §§ 3
and 4 with the provisions of the Convention.
- However,
the conclusion above does not prevent the Court from taking into
account the interests sought to be protected by Article 6 § 2 in
the balancing exercise carried out below (see Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 65 and A.
v. Norway, no. 28070/06, § 47, 9 April 2009).
2. The complaint under Article 8 of the Convention
- The
applicant complained that her right to respect for her private life
and to the protection of her reputation under Article 8 of the
Convention had been breached as a result of the police decision of 3
July 2000.
- The
Government disputed the applicant's complaint and requested the Court
to declare it inadmissible as being manifestly ill-founded under
Article 35 §§ 3 and 4 of the Convention.
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
considers that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
II. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- With
reference to the same facts as her complaint under Article 6 § 2
of the Convention, the applicant complained of a violation of her
right to protection of reputation under Article 8 of the Convention.
This article reads:
“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.”
A. The parties' submissions
1. The applicant
- The
applicant asserted that the police decision of 3 July 2000 clearly
stated and not merely expressed a suspicion that she had committed a
criminal offence. She referred in this regard to Article 134 of the
Civil Procedure Code (see paragraph 19 above) which provided that
letters issued by State authorities were to be taken as proof of the
“verity of what is...confirmed therein.”
- The
applicant further stressed that the impugned police decision was a
valid official decision which was neither subsequently quashed nor
replaced by any other statement. By contrast, in the case of Babjak,
on which the Government sought to rely in its preliminary objection,
the original police decision stating that the applicant had committed
a crime had been followed by an official statement unequivocally
clarifying that it had not been proved that the applicant had been
guilty of any crime. This distinction was essential, as the Court had
emphasised in its decision in Babjak, in which it held that:
“The
Court has also taken account of the above decision ... in which the
Police expressly stated that it had not been established that the
actions of the first applicant had constituted a criminal
offence. Although this second decision did not expressly quash the
first one, the Court observes that it was given by the same police
authority ... under the same file number. The contested decision ...
thus lost its legal effect. It can no longer by invoked by
anyone.”
- The
applicant maintained that she had been branded a criminal and had no
guarantee that the police decision would not be used against her
again in the future.
2. The Government
- The
Government submitted that the applicant had failed to substantiate
her complaint under Article 8 of the Convention by specifying any
particular consequences that the police decision had had on her
private life. Moreover, the police decision predominantly consisted
of allegations made by the applicant's husband. The applicant had not
shown that she had attempted to contest these allegations
domestically, for example, by filing an action under Articles 11 et.
seq. of the Civil Code, or by a criminal complaint against her
husband on the grounds of false accusation. Nor had the applicant
claimed before the Court that her husband's allegations were false.
B. The Court's Assessment
1. General principles
-
The Court recalls its judgment in the case of Chauvy and Others
v. France, no. 64915/01, § 70, ECHR 2004 VI, where
in the context of a complaint under Article 10, it explicitly
recognised for the first time “the right of the persons
... to protect their reputation, a right which is protected by
Article 8 of the Convention as part of the right to respect for
private life.” This was confirmed in Pfeifer v. Austria,
no. 12556/03, § 38, ECHR 2007 XII where the Court held that
States were under a positive obligation to protect individuals' right
to reputation, as an element of their “private life”
under Article 8 of the Convention.
- In
Sanchez Cardenas v. Norway, no. 12148/03, § § 33 and
38, 4 October 2007 the Court found that a passage in a domestic
judgment which “conveyed information to the effect that the
High Court, having regard to the state of the evidence, held a
suspicion that the applicant had sexually abused” his son, was
in the context of an authoritative judicial ruling “likely to
carry great significance by the way it stigmatised him and was
capable of having a major impact on his personal situation as well as
his honour and reputation.” Consequently, the Court took the
view that the facts underlying the applicant's complaint fell within
the scope of Article 8 of the Convention.
- The Court explained its approach to such cases in its
judgment in A. v. Norway, no. 28070/06, § 64, 9
April 2009, holding that in order for Article 8 to come into play,
the attack on personal honour and reputation must attain a certain
level of gravity and in a manner causing prejudice to personal
enjoyment of the right to respect for private life
(see Sidabras and DZiautas v. Lithuania,
nos. 55480/00 and 59330/00, § 49, ECHR 2004 VIII).
Similarly, in Karakó v. Hungary, no. 39311/05, §
23, 28 April 2009 the Court considered that reputation had
been deemed to be an independent right mostly when the factual
allegations were of such a seriously offensive nature that their
publication had an inevitable direct effect on the applicant's
private life. This has been more recently confirmed by the Court in
its judgment in the case of Polanco Torres and Movilla Polanco v.
Spain, no. 34147/06, § 40, 21 September
2010 (not yet final).
2. Application of these principles
- The
Court notes that the present application is distinguishable from the
cases to which it has referred above concerning the right to the
protection of one's reputation under Article 8 of the Convention. It
is clear that the impugned police decision was not published or made
readily accessible to the public through the media or in the context
of a public decision or judgment (as was the case in A. v. Norway
and Sanchez Cardenas v. Norway, cited above,
respectively). Notwithstanding, the police decision was ostensibly
disclosed to a third party, namely the health insurance company. They
in turn used the decision to the applicant's detriment, by relying on
it when pursuing her for the reimbursement of medical expenses.
- Given
the gravity of the conclusion contained in the police decision,
namely that the applicant was guilty of a violent criminal offence,
coupled with the uncontested disclosure of the impugned decision to a
third party, the Court finds that there has been an “interference”
with her rights under Article 8 of the Convention. In this
connection, the Court recalls, mutatis mutandis, its judgment
in the case of Sidabras and DZiautas (cited above) where it
held at paragraph 49 that Article 8 could not be relied on in order
to complain of a loss of reputation which was the foreseeable
consequence of one's own actions such as, for example, the commission
of a criminal offence. Applying this principle to the instant case,
the Court lays emphasis on the fact that the applicant was never
charged with or proved to have committed any criminal offence. It
follows that the text of the police decision cannot be considered to
be the foreseeable consequence of the applicant's own doing,
precisely because she has never been charged with, let alone proved,
to have committed any crime.
- Such
interference will give rise to a breach of Article 8 of the
Convention unless it can be shown that it was “in accordance
with the law”, pursued a legitimate aim or aims and was
“necessary” for the attainment of the latter.
- For
the purposes of the instant case the Court is prepared to accept that
the disclosure of the police decision of 3 July 2000 to the insurance
company had a legal basis and was therefore in accordance with the
law, as asserted by the director of the police department in reply to
the applicant's complaint (see paragraph 10 above). On the other
hand, the Court considers that it is not required to decide whether
the disclosure of the police decision pursued a legitimate aim. In
its view, this matter is closely related to compliance with the
“necessity” test. According to that test, a breach of
Article 8 will be found if, in the particular circumstances of a
case, an impugned measure fails to strike a fair balance between the
competing public and private interests at issue. The requirement of
proportionality demands that a respondent Government show relevant
and sufficient reasons for the interference. While it is for the
national authorities to make the initial assessment in all these
respects, and a margin of appreciation must be left to the competent
national authorities in this assessment, the final evaluation of
whether the interference is necessary remains subject to review by
the Court for conformity with the requirements of the Convention (see
Coster v. the United Kingdom [GC], no. 24876/94, § 104,
18 January 2001; S and Marper v. the United Kingdom,
[GC], applications nos. 30562/04 and 30566/04, 4 December 2008,
§§ 101-102).
- In
this connection, the Court considers that the police decision was
couched in terms which pointed to an expression of fact and not mere
suspicion and amounted to an obvious indication that the police
department considered the applicant to be guilty. This, it finds, is
evident in the actual words employed in the impugned decision (see
paragraph 9 above), namely that:
“The investigation showed that [the applicant's]
action met the constituent elements of the offence of causing injury
to health pursuant to Article 221 § 1 of the Criminal Code in
that she had deliberately inflicted an injury on another person.”
- Of
particular concern to the Court is the fact that the applicant had
not been charged with a criminal offence but was nevertheless placed
on record as a criminal offender. The Court has already had occasion
to point to the risk of stigmatisation of individuals stemming from
such practices and the threat which they represent to the principle
of the presumption of innocence (see S and Marper, cited
above, § 122). For the Court, the damage which may be caused to
the reputation of the individual concerned through the communication
of inaccurate or misleading information cannot be ignored either. The
Court would also observe with concern that the authorities have not
indicated whether the police decision remains valid indefinitely,
such as to constitute, with each communication to a third party,
assuming such to be in pursuit of a legitimate aim, a continuing
threat to the applicant's right to reputation.
- In
examining whether the domestic authorities have complied with the
above-mentioned fair balance requirement, the Court must have regard
to the safeguards in place in order to avoid arbitrariness in
decision-making and to secure the rights of the individual against
abuse. In the instant case, the Court cannot but note the lack of any
available recourse through which the applicant could obtain a
subsequent retraction or clarification of the terms of the police
decision. The Court further notes that in the above mentioned
Babjak case the original police decision which stated that
that applicant had committed a crime had been superseded by a
subsequent official statement from the competent police department
unequivocally clarifying that it had not been proved that he had
committed any criminal offence.
- Having
regard to the above considerations, the Court finds that the domestic
authorities failed to strike a fair balance between the applicant's
Article 8 rights and any interests relied on by the Government to
justify the terms of the police decision and its disclosure to a
third party. There has accordingly been a breach of Article 8 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed SVK 300,000 (approximately EUR 9,958) in respect of
non-pecuniary damage.
- The
Government argued that the applicant's claim was exaggerated and
unsubstantiated. They maintained that the applicant had not shown any
causal link between the claimed non-pecuniary damage and the alleged
breach of her Convention rights. In the event that the Court found a
violation, the Government considered that the finding of a violation
would constitute in itself sufficient just satisfaction.
- The
Court accepts that the applicant must have suffered some
non pecuniary damage. Ruling on an equitable basis, it awards
the applicant 1,500 euros (EUR) under that head.
B. Costs and expenses
- The
applicant also claimed SVK 14,875 (approximately EUR 494) for the
costs and expenses incurred before the domestic courts and
SVK 35, 700 (approximately EUR 1,185) for those incurred
before the Court. This broke down into 5 hours of legal fees at a
rate of SVK 2,975 (approximately EUR 99) for domestic proceedings and
12 hours for proceedings before this Court, which included VAT (value
added tax).
- The
Government considered that the applicant had overstated her claim for
costs and expenses and that the claim was unsubstantiated by any
documentary evidence, such as the contract with her lawyer. Moreover,
the Government found the applicant's lawyer's hourly rate to be
inflated, citing the Court's judgment in Young,
James and Webster v. the United Kingdom (Article 50), 18 October
1982, § 15, Series A no. 55, where the Court held that the
effective protection of human rights required human rights lawyers to
be moderate in the fees that they charged to applicants.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant has failed to provide
sufficient supporting documents substantiating her claims under this
head, such as a copy of the contract with her legal representative
for example (Rule 60 §§ 1 and 2 of the
Rules of Court). The Court accordingly rejects the applicant's claims
for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 8 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
