CASE OF MARONEK v. SLOVAKIA
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
Christos Rozakis
8. On 27 June 1991 the mayor of Bratislava allocated a single-room flat (“the flat”) to the applicant. It was at the disposal of the State-owned Tesla company, by which the applicant was employed at the time. The mayor’s decision entitled the applicant to have a contract signed, giving him the right to occupy the flat. However, the applicant was not able to sign the contract and move in, as it was occupied by A. 9. By a letter dated 4 March 1991 the Bratislava Staré mesto local council (Miestny úrad) informed A., in reply to his request that the right to occupy the flat be transferred to him, that the flat was at the disposal of Tesla. The letter further stated that A. was under no obligation to move out until he was provided with alternative accommodation. 10. On 18 March 1991 the Bratislava I Housing Administration (Bytový podnik) informed the housing department of the Bratislava Staré mesto local council that the flat had been occupied by A. without any justification since the death of the former occupant and that A. was registered as living in his parents’ flat, situated in the same house. On the same day a representative of the Bratislava I Housing Administration recorded the fact that the deceased occupant had been the only person living in the flat. 11. In a letter of 5 June 1991 a social welfare authority informed the housing department of the Bratislava Staré mesto local council that, between 1 June 1984 and 11 June 1990, A. had taken care of the occupant of the flat in return for remuneration from public funds. On 26 June 1990 the occupant of the flat had been placed in a welfare institution. The letter stated that, when social workers had visited the former occupant prior to her placement in the institution, nothing belonging to A. had been seen in the flat. 12. On 19 June 1991 Tesla brought an action in the Bratislava I District Court (Obvodný súd), claiming that A. should be ordered to move out. The action stated that, during a random inspection of the flat on 14 March 1991, it had been discovered that A. had illegally forced entry to the flat, had changed the lock and had prevented the representatives of Tesla and of the Bratislava I Housing Administration from entering. 13. Tesla further claimed that A. lived with his parents, whose flat was situated next door to the flat in issue. Since both flats had the same address, he had misled the local council when claiming that the right to occupy the flat in question should be transferred to him. Tesla submitted documentary evidence that A. was registered as living with his parents and that he had never occupied the flat in issue. The plaintiff argued that A. had no right to alternative accommodation. 14. At a later date the applicant joined the proceedings and claimed that he had the right to occupy the flat. A. counter-claimed that he was entitled to have the right to occupy the flat transferred to him. 15. On 1 January 1992 new legislation was enacted which started the process of denationalisation of State-owned flats. As a result, the flat ceased to be at the disposal of Tesla and the latter lost locus standi in the proceedings. 16. On 22 January 1992 the Western Slovakia Electricity Board informed the applicant that there had been no consumption of electricity in the flat as of the beginning of 1991. 17. On 29 September 1993 the applicant unsuccessfully requested the Bratislava Staré mesto local council to sign a contract with him for the use of the flat. 18. On 7 September 1994 the Bratislava I District Court discontinued the proceedings concerning the action brought by Tesla and the counter-claim filed by A. The court noted that in the course of the proceedings the ownership rights in respect of the flat had been transferred ex lege to the Bratislava Staré mesto municipality and that both the latter and A. had withdrawn their actions. 19. On 26 March 1996 the Bratislava I District Court granted A.’s application, filed on 28 May 1993, concerning his right to occupy the flat. The court held that A. had lived with the former occupant of the flat until her death on 2 July 1990. It concluded that A. had acquired the right to use the flat pursuant to Article 179 § 1 of the Civil Code as in force at the relevant time. 20. On 8 November 1991 the daily newspaper Smena published a full- page article written by a journalist on the applicant’s case. It was entitled “Absurd? Absurd!”. The article contained, inter alia, a description of the applicant’s unsuccessful attempt to enter the flat on 29 October 1991 and of the verbal exchanges between the applicant, on the one hand, and A. and his wife H., a public prosecutor, on the other. The article stated that the flat allocated to the applicant had been unlawfully occupied by A. and criticised the fact that the applicant had no possibility of using it. 21. On 17 December 1991 the Bratislava City Prosecutor brought disciplinary proceedings against H. on the ground that, during the applicant’s attempt to enter the flat on 29 October 1991, she had behaved in an inappropriate manner. The decision stated that the disciplinary proceedings had been brought on the basis of the article published in Smena on 8 November 1991 and of the explanations given by the persons involved. H. later resigned from her post of public prosecutor. 22. On 5 February 1992 the applicant addressed an open letter to the Prime Minister. It was entitled “For How Long?”, and its relevant parts read as follows: Smena on 8 November 1991, but since then little has changed. The flat is situated ... opposite the flat of [A.’s father], with whom his son has his permanent address at present. The flat was duly allocated to me by the Bratislava City Council on 27 June 1991. [A.] shamefully benefits from the fact that both flats have the same address (all flats in the same block have the same address) and prevents me from moving into my flat. In doing so, he is vehemently supported by his wife [H.], who is the principal occupant of another State-owned flat ... [A.] claims the right to occupy the flat on the basis of a document signed by the head of the housing department of the Bratislava Staré mesto local council on 4 March 1991 ... stating that [A.] does not have to leave the flat until he has been provided with alternative accommodation. However, [A.] has had alternative accommodation for a long time, namely his wife’s flat. He has acquired the right to occupy that flat automatically. Why has he not yet vacated the flat [allocated to the applicant]? [A.] and his wife lied to me when they said they had no place to live and alleged that because of this they would not vacate the flat. I point out that [H.] is a public prosecutor (!). If our newly born democracy has such people to represent the law, it will not outlive its childhood and we can bury it right away. The judiciary should first and foremost ensure that the law is respected and justice upheld in the State. But what is our judiciary like? Tesla brought an action against [A.] on 19 June 1991. The first hearing was scheduled for 27 January 1992 (!!!). Why? [A.] failed to appear. For how long will certain groups of people think that they detain all the power in the State (and act accordingly)? ... It is high time to show the world, before the second free election, that our government and society defend justice. I appeal to you. On 24 February 1992 at 11 a.m. the case of Tesla against [A.] will be heard in room no. 37 at the Bratislava law courts. Do not let democracy be trampled once more and the ideals underlying the promotion of the rule of law become empty words. P.S. I call upon all who have a similar problem to write to me. I hope that through our joint efforts we will be able to achieve more. May there be no need for it.” 23. The letter was signed by the applicant and gave his address. It also gave the full name and profession of both A. and H. A copy of it was posted up at several tram and bus stops in Bratislava. 24. On 21 February 1992 Smena published the applicant’s opinion on the case. Its contents were almost identical to the open letter of 5 February 1992. 25. On 28 February 1992 A. and H. lodged with the Bratislava City Court (Mestský súd) a civil action against the applicant to protect their good name and reputation. They later extended their action to Smena. 26. On 9 April 1993 a witness confirmed before the City Court that, at the relevant time, A. was living with his father. 27. On 23 June 1993 the Bratislava City Court found in favour of A. and H. It ordered the applicant to apologise in writing for damaging the plaintiffs’ honour. The applicant was further ordered to pay 100,000 Slovakian korunas (SKK) to each of the plaintiffs for non-pecuniary damage, to reimburse their lawyer’s fees and to pay the court fees. Smena was ordered to publish an apology, pay another SKK 100,000 to each of the plaintiffs and reimburse their legal costs. 28. The City Court noted that proceedings were pending before the Bratislava I District Court which concerned Tesla’s claim for the flat in issue to be vacated and A.’s counter-claim. The City Court held that the proceedings before the District Court raised difficult questions of fact and law. It further held that the applicant had not, so far, acquired the right to occupy the flat and noted that, according to a document issued by the housing department of the Bratislava Staré mesto local council on 4 March 1991, A. was under no obligation to vacate the flat until he obtained alternative accommodation. 29. In the City Court’s view, the opinions of the applicant and of a journalist which had been published in Smena on 8 November 1991 and 21 February 1992 had not been substantiated. The court considered that the applicant had also interfered with the plaintiffs’ right to protection of their personality by displaying his open letter of 5 February 1992 in public places or, as the case may be, allowing it to be published. The court held that the letter contained tendentious, distorted and unsubstantiated information which had damaged the plaintiffs’ personal integrity. 30. The City Court found that the damage had affected H.’s health, that, following the publication of the article of 8 November 1991, disciplinary proceedings had been brought against her and that, for the same reason, a loan had not been granted to A., who was a businessman. The family life of the claimants and of H.’s children had also been affected. 31. Both the applicant and Smena appealed. The applicant claimed, with reference to the documents included in the case file, that the information contained in his open letter of 5 February 1992 was true. In particular, he argued that, under the relevant law, A. had no right to occupy the flat in question. He also offered proof that, at the relevant time, A. had had a permanent address with his parents and that his wife had had the right to occupy another flat. 32. The applicant also pointed out that he could not have the contract for the use of the flat signed as the flat had been illegally occupied by A. He therefore maintained that his conclusion that A. had prevented him from moving into the flat was correct. Finally, the applicant alleged that, in any event, the interference in question had not had any defamatory effect within the meaning of Article 11 of the Civil Code and that the City Court had not indicated any relevant damage or circumstance within the meaning of Article 13 of the Civil Code on which its conclusion had been based. 33. On 16 November 1995 the Supreme Court (Najvyšší súd) dismissed the appeal. It considered that the evidence heard by the City Court showed that the information contained in the article of 8 November 1991, in the applicant’s opinion published in Smena on 21 February 1992 and in the applicant’s open letter displayed in public places did not correspond to reality and was objectively capable of affecting the plaintiffs’ personality rights. 34. The Supreme Court recalled that, after the allocation of the flat to the applicant, the relevant authorities had not signed a contract for its use with him as required by the law then in force and that the applicant had not requested that such a contract be signed. The Supreme Court therefore considered that the applicant’s allegation that A. had occupied the flat in question unlawfully and that he had shamefully benefited from the fact that his permanent address was the same as that of the flat in question had been tendentious and misleading as the proceedings concerning the right to occupy the flat in issue were still pending before the Bratislava I District Court. 35. In the Supreme Court’s view, the disclosure, in both the open letter and the opinion of 21 February 1992, of H.’s name and of the fact that she was a public prosecutor had grossly interfered with her right to protection of her personality. It concluded that the way in which the applicant had attempted to resolve his housing problem was inappropriate as he had had other lawful means of seeking redress. 36. In the judgment, the Supreme Court referred to the profession of the plaintiffs and found that the compensation the applicant had been ordered to pay was appropriate and corresponded to the non-pecuniary damage A. and H. had suffered. The applicant was ordered to reimburse to the plaintiffs the cost of the proceedings. The judgment was served on 17 January 1996. 37. On 14 February 1996 the applicant lodged a petition with the Constitutional Court (Ústavný súd). He alleged a violation of his constitutional rights, including freedom of expression, in the proceedings leading to the Supreme Court’s judgment of 16 November 1995. 38. On 27 February 1996 the Constitutional Court rejected the petition on the ground that it lacked jurisdiction to review or quash the ordinary courts’ decisions and to award compensation to the applicant. 39. Subsequently a bailiff started to enforce payment of the sums due by the applicant by attaching one-third of his salary. 40. The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code. 41. Under Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 42. According to Article 13 § 1 any natural person has the right to request that unjustified interference with his or her personality rights be stopped and that the consequences of such interference be eliminated, and to obtain just satisfaction. 43. Article 13 § 2 provides that, in cases where satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person’s dignity and position in society have been considerably diminished, the person affected is entitled to compensation in respect of non-pecuniary damage. 44. Under Article 13 § 3, the amount of compensation to be paid under Article 13 § 2 is fixed by the courts after considering the severity of the damage and the circumstances in which the person’s right was violated. 45. Article 179 § 1 of the Civil Code, as in force up until 31 December 1991, provides that the right to use a flat after the death of the occupant shall be transferred to persons who, inter alia, have lived in a common household with the person entitled to use it for at least one year before his or her death, provided that they have no flat of their own.