GERGEL v. SLOVAKIA
Inadmissible
Nicolas Bratza
The applicant, Mr Ľubomír Gergel, is a Slovakian national of Roma ethnic origin. He was born in 1950 and lives in Zvolen. He was represented before the Court by Mr A. Dobrushi of the European Roma Rights Center in Budapest and Mr C. Igboanusi of the League of Human Rights Advocates in Bratislava. On 19 March 2001 two Railway Police officers brought the applicant to their premises at the Zvolen railway station for the alleged purpose of checking his identity papers. On the way to the police station the officers insulted the applicant with racist remarks and one of them hit him across the face. During the interrogation at the police station one officer kicked the applicant in the head, slapped him across the face, and while the applicant was on the floor, the officers kicked him repeatedly in the chest. The officers stole 1,500 Slovak korunas (SKK) from the applicant. The applicant suffered a number of injuries including severe injuries to one kidney, contusion of his chest and face and a broken rib. He had to be treated and remained incapable to work for 42 days after the incident. On 20 March 2001 the applicant tried to file a complaint, but the Railway Police officers at the Zvolen refused to accept it. On 27 March 2001 the applicant filed a complaint with the District Prosecutor in Zvolen. The latter transferred the complaint to the Railway Police Office in Zvolen. He also informed the Inspection Section at the Ministry of the Interior’s regional office in Banská Bystrica of the police officers’ refusal to receive the applicant’s complaint on 20 March 2001. On 8 June 2001 a Railway Police investigator informed the applicant that the matter was being treated as an internal disciplinary investigation as there was no indication that an offence had been committed. In reply to the applicant’s complaint, the public prosecutor ordered the Railway Police to start criminal proceedings against three officers for abuse of authority. On 22 April 2002 the District Court in Zvolen issued a summary penal order in which it convicted one Railway Police officer of abuse of authority and of causing intentional bodily harm while carrying out his duties. The court imposed a fine of SKK 10,000 (the equivalent of approximately 250 euros) on the convicted officer and ordered the latter to pay SKK 4,020 in damages to the applicant. The applicant was referred to a civil court with the remainder of his claim for damages. The other two railway officers involved had not been charged with any offence. In accordance with the relevant provisions of the Code of Criminal Procedure, the penal order was issued by a single judge without any prior hearing. It contained a notice about the remedies available the relevant part of which reads as follows: “The accused or other persons entitled to do so on his behalf, the public prosecutor and the injured person to whom compensation for damage was granted can file an objection to the penal order within 8 days from its service. Upon filing of an objection, the penal order shall be quashed and a main hearing shall be held in the case. The injured person can file an objection to the operative part [of the penal order] by which compensation for damage was granted to him... If no objection is filed within the period fixed for that purpose, the penal order shall become final and enforceable.” On 30 April 2002 the applicant challenged the penal order by means of a submission entitled an “appeal”. He argued, inter alia, that he had been injured by two officers and that a sum of money had been stolen from him. The relevant part of the penal order which concerned the conviction of the accused and the sentence imposed on him became final on 11 May 2002. The District Court did not notify the applicant of this fact of its own initiative as this was not required by the law. In a letter dated 17 July 2002 the District Court judge informed the applicant that he had no right to file an appeal as regards the court’s finding as to the guilt of the accused police officer and as regards the sentence imposed. On 14 August 2002 the District Court delivered a decision in which it referred the applicant to a civil court with his claim for damages. Reference was made to Article 314g(2) of the Code of Criminal Procedure. On 17 September 2002 the applicant filed a complaint to the Constitutional Court. He alleged that by its above conduct the District Court in Zvolen had violated his rights under Article 46 of the Constitution and Article 13 of the Convention. On 8 November 2002 the applicant extended his complaint in that he also alleged a violation of Articles 3 and 6 § 1 of the Convention, of Article 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and of Article 14 of the International Covenant on Civil and Political Rights. He requested that the penal order should be quashed and the District Court in Zvolen ordered to proceed with the case. The Constitutional Court dismissed the complaint on 28 November 2002 as having been filed outside the statutory two month time-limit. The decision referred to section 53(3) of the Constitutional Court Act. The Constitutional Court noted that the applicant did not allege that the penal order issued by the District Court in Zvolen had not been served on him. The penal order clearly indicated which remedies the applicant could use against it and, accordingly, it was evident from it that under the relevant law the applicant lacked standing to challenge the decision as to culpability of the accused and as to the sentence imposed on the latter. The applicant should have sought protection of his fundamental rights within two months from the final effect of the penal order. Article 127 of the Constitution, as in effect from 1 January 2002, provides as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... Section 53(3) of the Constitutional Court Act provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them. Pursuant to Article 314e(1), a single judge can issue a penal order, without a hearing, where the evidence obtained permits the establishment of the relevant facts in a reliable manner. Paragraph 5 of Section 314(e) provides that a penal order is, by its nature, equivalent to a judgment by which a person has been convicted. Pursuant to Article 314g(1), the accused person, other persons entitled to do so on his or her behalf as well as the public prosecutor can file an objection to a penal order within 8 days from its service. Paragraph 2 of Article 314g provides that an injured person can file an objection to the relevant part of a penal order by which compensation for damage was granted to him or her. Where the injured person files an objection, the part of the penal order which concerns compensation for damage is to be quashed. In such a case a single judge of the criminal court shall deliver a decision referring the injured person with his or her claim for damages to a civil court. Under paragraph 3 of Article 314g, where a person entitled to do so files an objection to a penal order, a single judge shall hold a main hearing in the case. Otherwise the penal order becomes final and enforceable. Pursuant to Article 314g(8)(a), a penal order becomes final and enforceable when no objection has been filed to it within the time-limit set for that purpose. Regulation 66/1992, as amended, governs the internal rules of District Courts and Regional Courts including the organisation of their work. Pursuant to section 23, as soon as it is established that a judicial decision has become final, the judge or another person authorised to do so shall indicate this fact and the date of its final effect on the decision included in the case file. Section 24 provides that, at the request of a person who has been served with a decision prior to its final effect, the court shall put a stamp on that decision indicating when it became final and enforceable.