L.Z. v. SLOVAKIA
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicant, Mr L. Z., is a Slovak national who was born in 1958 and lives in Prague, in the Czech Republic. He was represented before the Court by Mr D. Strupek, a lawyer practising in Prague. The applicant has requested anonymity and the Court has granted this request, under Rule 47 § 3 of the Rules of Court. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is of Jewish origin and works as a social and human rights worker and psychologist. He has been living in the Czech Republic since 1983. 4. Varín is a village in northern Slovakia with population of around 3,500 inhabitants. 5. On 4 November 1993 Varín Municipal Council (“the municipal council”) passed a resolution changing the name of a street in the village to Dr. Jozef Tiso Street. 6. After protests by two local organisations, the resolution was confirmed by a second resolution of the municipal council on 28 December 1993. The resolution reads as follows: “Varín Municipal Council, by way of resolution No. 224/1993 of 28 December 1993, adopted a change in the name of the street ... to Dr. Jozef Tiso Street (ulica Dr. Jozefa Tisa)....” 7. According to an official statement of the Historical Institute of the Slovak Academy of Sciences of 17 May 1999 sent to the applicant upon his own request, “... J. Tiso was the head of State between 1939 and 1945 who collaborated with Nazi Germany and waged war against the [Allied] States. Moreover, under his leadership a totalitarian regime of a fascist character was established, which, inter alia, caused the violent deaths of tens of thousands of its citizens. J. Tiso, as the Prime Minister [and] President of the State and as the President of the sole governing [party], the Hlinka Slovak People’s Party, as the top commander of the State’s army and as the top commander of the Hlinka Guard, bears the greatest part of the political, legal and moral responsibility for all the events in the Slovak State during the war.” 8. On 21 February 1994 the municipal council asked the Street Naming Committee of the Žilina District Office to submit an official opinion on the change of the street’s name. 9. In its opinion of 12 April 1994 the Committee did not recommend naming the street after Dr. Jozef Tiso, “since the personality of Dr. Tiso has not yet been historically assessed”. 10. In 1995 the applicant unsuccessfully sought to initiate criminal proceedings. In 1998 he brought a civil claim, mainly seeking the quashing of the municipal council’s resolution, renaming of the street and payment of symbolic compensation. Both his civil claim and his subsequent constitutional complaints against the decisions of the prosecution service and the courts were dismissed. The details are described below. 11. In 1995 the applicant unsuccessfully sought to initiate criminal proceedings concerning the adoption of the above-mentioned municipal resolution on 28 December 1993. In 1996 the applicant also unsuccessfully sought to initiate criminal proceedings against the police investigator who had dismissed the applicant’s criminal complaint. Both complaints were dismissed by the Žilina District Prosecutor’s Office. 12. On 11 March 1996 the District Prosecutor’s Office, exercising its power to review the lawfulness of actions and decisions of public authorities, notified the municipal council that the renaming of the street was in breach of section 8(3) of the Territorial and Administrative Organisation of the Slovak Republic Act. That section provides that the names of streets are to be determined by municipal councils after taking into account an opinion of the Street Naming Committee established by the District Office. 13. By letter of 12 April 1994 the municipal council informed the District Prosecutor’s Office that its letter had been discussed by the municipal council. 14. On 11 December 1998 the applicant lodged a petition with the Žilina District Court seeking a ruling declaring that the naming of the street after Dr. Jozef Tiso was in breach of the Slovakian Constitution. He requested that the relevant part of the municipal council’s resolution be declared null and void and be quashed, that the street be renamed and that the municipal council be ordered to pay symbolic compensation of 1 Slovakian koruna (SKK) to all registered churches in Slovakia. 15. On 10 December 1999 the District Court invited the applicant to provide further and more specific particulars of claim. 16. On 21 December 1999 the applicant amended his claim with regard to the renaming of the street and changed it with regard to the compensation sought by requesting that a symbolic sum of SKK 16 be paid to him. 17. On 13 August 1999 the District Court hived off the part of the applicant’s claim concerning the validity of the resolution to separate proceedings. On 27 March 2000 the District Court dismissed these proceedings, holding that it had no jurisdiction to examine the legality of the municipal council’s resolution and transferred the case to the Constitutional Court. 18. By letter of 6 February 2001 the Constitutional Court returned the case file to the Žilina District Court without having made a decision. It stated that proceedings before the Constitutional Court could not be initiated by a case being transferred to it by an ordinary court. 19. On 21 March 2001 the Žilina District Court informed the applicant of the Constitutional Court’s letter and concluded that the decision to dismiss the proceedings concerning the validity of the resolution was final and the case file would be archived. 20. Meanwhile, on 6 July 2000, the Žilina District Court had informed the applicant that his claim for the renaming of the street and for payment of compensation fell to be determined within the framework of the protection of his personal integrity. It transferred the case to the Levice District Court, as the matter lay within that court’s territorial jurisdiction. 21. On 17 April 2001 the Levice District Court dismissed the proceedings and transferred the case to the Constitutional Court, holding that it had no jurisdiction to deal with the case. 22. On 7 June 2001 the applicant appealed against the decision. 23. On 11 June 2002 the Levice District Court amended its decision of 17 April 2001, in that it hived off the applicant’s claim for payment of SKK 16 in compensation to a separate set of proceedings. 24. On 31 December 2002 the Nitra Regional Court quashed the firstinstance decision to dismiss the proceedings and to transfer the case to the Constitutional Court and returned the case to the Levice District Court. It held, inter alia, that proceedings before the Constitutional Court could not be started by dismissing and transferring a civil case pending before a civil court. 25. On 26 September 2003 the District Court asked the applicant to provide further and more specific particulars of claim, namely to justify it and to adduce evidence in support of his claim within fifteen days. 26. On 31 October 2003 the applicant amended his claim. He argued that the renaming of the street and the existence of a street bearing the name of Dr. Jozef Tiso had violated his right to life, personal freedom and human dignity and had damaged his reputation. He felt ashamed of a municipality which had promoted fascism and had honoured a war criminal. He further stated that he was worried about fundamental human rights and freedoms and democracy in Slovakia being jeopardised. He added that he identified himself with Slovakia and he could not be indifferent towards any of its citizens who might become a victim of the consequences of the promotion of fascism. 27. On 22 April 2004 at an oral hearing the District Court joined the proceedings concerning the renaming of the street after Dr. Jozef Tiso and those seeking the payment of compensation. The applicant further specified his claim. The applicant stated, inter alia, that his aim had been to prevent a repetition of the murder of tens of thousands of people in the future. He claimed that he had been mocked by some of his friends as a result of the public act in issue. 28. On 27 April 2004 the District Court dismissed the applicant’s claim. 29. As to the applicant’s arguments relating to the alleged violation of his personal integrity, the District Court held: “The fact that a street in the village of Varín was given the name of Dr. Jozef Tiso, which was decided upon by the municipal council and in consequence of which the street exists, cannot be considered as an action which is objectively capable of affecting the applicant’s right to life, his personal freedom, his reputation and dignity. This act (the decision of the municipal council) is not aimed, concretely and directly, at the applicant’s personality or at his personal integrity. The claimant did not prove that the defendant had unlawfully infringed his right to protection of his personality or infringed his personal integrity. The claimant did not prove that, as a consequence of the defendant’s action, he suffered any damage that should be compensated.” 30. On 19 July 2004 the applicant appealed. 31. At a hearing on 12 October 2004 the Regional Court upheld the District Court’s judgment. 32. On 7 January 2005 the applicant appealed on points of law. He argued that he had not been allowed to comment on all the evidence and statements led by the defendant and that he had been prevented from presenting his arguments by the trial court. 33. On 17 June 2005 the Supreme Court rejected the appeal on points of law as inadmissible. The Supreme Court held that the minutes of the hearing before the Regional Court showed that the applicant had been given an opportunity to respond to the defendant’s arguments. It further held that the only evidence before the court had been a recording of a television programme produced by the applicant. 34. On 8 February 2005 the applicant complained before the Constitutional Court under Article 127 of the Constitution that the relevant part of the resolution of the municipal council, the decisions of the Žilina District Police Investigation Office and the Žilina District Prosecutor’s Office to dismiss the applicant’s complaints (see paragraph 12 above), the conduct of the Žilina District Court and the conduct and decisions of the Levice District Court and of the Nitra Regional Court had, inter alia, violated his rights under Articles 6 § 1 and 8 of the Convention. 35. On 9 June 2005 the Constitutional Court rejected the complaint relating to the municipal council’s resolution and to the conduct of the Žilina District Court as belated. The complaint relating to the decision of the Police Investigation Office and the District Prosecutor’s Office was rejected because the applicant had failed to complain to higher levels of the prosecution service. The complaint of delays in the proceedings before the Levice District Court was rejected as manifestly ill-founded, as at the time of the introduction of the constitutional complaint the proceedings had no longer been pending before the District Court. The Constitutional Court also held that it lacked jurisdiction to deal with the complaint related to the proceedings before the Nitra Regional Court, as the proceedings concerning the appeal on points of law were still pending. 36. On 13 October 2005 the applicant again complained to the Constitutional Court under Article 127 of the Constitution. He directed his complaint against the relevant part of the municipal council’s resolution, the conduct of the Žilina District Court, the conduct and decisions of the Levice District Court and of the Nitra Regional Court and the Supreme Court’s decision to dismiss the appeal on points of law. 37. On 30 November 2005 the Constitutional Court rejected the complaint relating to the municipal council’s resolution and to the District and the Regional Courts’ conduct and decisions on the grounds that it concerned a matter that was res judicata. The Constitutional Court further held that the Supreme Court’s decision had been adequately reasoned and had not been arbitrary. The complaint related to the Supreme Court’s decision was therefore dismissed as being manifestly ill-founded. 38. On 25 January 2006 the applicant complained to the Constitutional Court for the third time, directing his complaint exclusively against the Supreme Court’s decision. 39. On 20 June 2006 the Constitutional Court rejected the complaint as inadmissible on the grounds that the matter was res judicata by force of its earlier decision. 40. According to Article 127, the Constitutional Court shall decide on complaints against final decisions of central and local State administrative bodies and municipal bodies which are claimed to have infringed fundamental rights and freedoms, unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 41. Section 8(2) provides that streets shall be named after objects, natural phenomena, significant events, towns, deceased persons and so forth, having regard to the history of the relevant municipality and its surroundings. The names of living persons, names which are too long, which are identical to the name of another street in the municipality, which offend moral, religious and/or national feelings, which are linguistically incorrect, which are inappropriate with regard to the historical development of the municipality, its wards or its surroundings, are impermissible as street names. 42. Subsection 3 of section 8 provides that names of streets shall be decided by a municipal council after consulting with the municipality’s citizens and after obtaining the opinion of the Street Naming Committee established by the District Office. 43. The right to the protection of a person’s dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code. 44. According to Article 11, any natural person has the right to the protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 45. According to Article 13 § 1, any natural person has the right to request that an unjustified infringement of his or her personality rights be stopped and the consequences of such infringement eliminated, and to obtain appropriate compensation. 46. Article 13 § 2 provides that, in cases where the compensation obtained under Article 13 § 1 is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. 47. In accordance with established practice, a claimant has to prove that the alleged infringement was objectively capable of affecting his or her rights under Article 11 of the Civil Code. 48. The Committee on the Elimination of Racial Discrimination, established under Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination, adopted an opinion in the case of Steven Hagan v. Australia, CERD/C/62/D/26/2002. In 2002 the Australian petitioner complained before the Committee that the grandstand of an important sporting ground in Toowoomba, Queensland, Australia, where the applicant lived, was named the E.S. “Nigger” Brown Stand. 49. The applicant contended that the term “nigger” was one of the most racially offensive words in the English language. 50. On 20 March 2003 the Committee held that use and maintenance of the term “can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded.” 51. The Committee stated that the Convention on the Elimination of All Forms of Racial Discrimination “must be interpreted and applied taking into account the circumstances of contemporary society. In this context, the Committee considers it to be its duty to recall the increased sensitivities in respect of words such as the offending term appertaining today.”