CASE OF BABYLONOVA v. SLOVAKIA
Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - financial award
Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Stanislav Pavlovschi
4. The applicant was born in 1951 and lives in Nové Zámky. 5. On 18 August 1995 the applicant and her husband entered into a contract for the purchase of a family house and a plot of land from Mr and Mrs D. 6. Mr D., who was registered as permanently resident (trvalý pobyt) at the house’s address, undertook in the contract to secure his deregistration by 21 August 1995. 7. The applicant and her husband then became the owners of the property and moved into the house. However, Mr D. failed to deregister himself from the relevant register, which was kept by the municipal office (Obecný úrad) of Nové Zámky. 8. In a letter of 2 March 2001 in reply to the applicant’s enquiry, the Nové Zámky district prosecutor (Okresný prokurátor) informed her that registration of permanent places of residence was governed by the Registration of Citizens’ Place of Residence Act (Law no. 135/1982, see “Relevant domestic law and practice” below) in conjunction with the Regulation on Enforcement of the Registration of Citizens’ Place of Residence Act (Regulation no. 146/1982). Individuals were obliged to report the taking-up of a new permanent place of residence to the municipal office of the municipality in which that residence was located within three days. Registration of a new permanent place of residence entailed an automatic cancellation of the registration at the previous one. A registration of a permanent place of residence could only be cancelled without registering a new one if the person concerned had lawfully emigrated from Slovakia or if it was discovered that the registration had been based on invalid or forged documents. As Mr D. had not applied for registration of a new permanent place of residence, the Nové Zámky municipal office had no legal authority under the existing legislation to cancel his previous registration at the applicant’s home address. 9. On 22 March 2001 the applicant and Mr D. made a joint written declaration to the effect that Mr D. was not resident at the house in question, that he had no right of use in respect of it and that he was not contributing to the costs of its use. Mr D. further declared that he had applied to be deregistered as permanently resident at the house, that his application had been dismissed and that he was homeless and staying in different locations. 10. In a letter of 24 May 2001, in reply to her enquiry, the head office of the Police Corps informed the applicant that section 5(1) of a new Registration of Citizens’ Place of Residence Act (Law no. 253/1998 – see “Relevant domestic law and practice” below), which was to come into force on 1 January 2002, could offer a solution to her problem. This legal provision enabled a person to be registered as a permanent resident in a municipality where he or she was born or was habitually resident (kde sa zdržuje), without actually having any specific address there. The letter further stated that the registration of a permanent place of residence at a certain address did not confer a legal right to live there and was merely evidentiary in nature. 11. On an unspecified date the applicant applied for a social contribution towards her dwelling costs (príspevok na bývanie). The number of persons registered as permanently resident at a dwelling was a relevant factor in considering eligibility for such contributions and in calculating the amount to be paid. On 25 April 2001 the Nové Zámky municipal office issued a certificate to the effect that three persons were registered as permanently resident at the applicant’s address, namely the applicant, her husband and Mr D. The municipal office issued a similar certificate on 5 April 2004. Once the applicant had explained the situation to the municipal office employees, the problem was resolved. 12. In a letter of 15 October 2001, in response to the applicant’s enquiry, the Nové Zámky municipal office informed her that, in the circumstances, it would not be possible to cancel Mr D.’s registration as permanently resident at her house, even when the 1998 Registration of Citizens’ Place of Residence Act came into force. 13. By a payment order of 22 January 2002, the Nové Zámky municipality charged the applicant’s husband a fee for the removal of household waste from their house. The amount of such fees depended on the number of persons registered as permanently or temporarily resident at a given dwelling. In the applicant’s case the fee was calculated on the basis of three persons being registered at her address. Once the applicant had explained the situation to the municipality employees, the problem was resolved. 14. The applicant submitted that official mail and other documents, including, in April 2005, a letter from the Nové Zámky municipal office, were being sent to Mr D. at her address, and that the police had come to her house searching for Mr D. on suspicion of having failed to make child maintenance payments. 15. The applicant further submitted that her marriage had been dissolved and that, in order to settle their property affairs, she and her former husband had put the house on the market. A prospective buyer withdrew his offer on learning that a third person was registered as permanently resident at the house and that there was no way of having that registration cancelled. The applicant continues to live in the house with her former husband. 16. Article 19 provides: “1. Everyone has the right to the preservation of his human dignity and personal honour, and the protection of his good name. 2. Everyone has the right to protection against unwarranted interference in his private and family life ...” 17. Article 127, as in force since 1 January 2002, provides: “1. The Constitutional Court shall decide complaints by natural or juristic 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. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated another person’s rights or freedoms within the meaning of paragraph 1 shall not be affected by the Constitutional Court’s decision.” 18. Article 154 (c) provides: “1. International treaties on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms. 2. Other international treaties ratified by the Slovak Republic and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute.” 19. In decision no. I. ÚS 9/00 of 22 March 2000, the Constitutional Court expressed the view that ordinary courts were obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. The ordinary courts therefore had primary responsibility for upholding the rights and fundamental freedoms guaranteed by the Constitution or international treaties. 20. In case no. II. ÚS 5/02, a private individual sought to bring a complaint under Article 127 of the Constitution, challenging a generally binding municipal regulation as unconstitutional. On 6 February 2002 the Constitutional Court declared the complaint inadmissible. In its decision it summarised the existing caselaw concerning the standing of private persons to bring proceedings for review of the constitutionality of legislation. The Constitutional Court held that any of the various forms of constitutional proceedings before it could only be commenced in a distinct set of proceedings and only on the motion of persons or bodies which had standing to initiate them. No other type of constitutional proceedings could be carried out within separate proceedings of another type. An examination of an individual human rights complaint could not entail a review of the constitutionality of legislation. This approach was in line with the Constitutional Court’s previous decision in case no. II. ÚS 40/00, and was followed in the later decision in case no. II. ÚS 238/03. 21. The protection of personal integrity is governed by the provisions of Articles 11 et seq. In so far as relevant, these provide: “Article 11 Every natural person shall have the right to protection of his or her personal integrity, in particular his or her ... civil honour and human dignity, as well as privacy, name ... ... Article 13 1. Every natural person shall have the right, inter alia, 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.” 22. The Act was enacted on 29 November 1982, came into force on 1 January 1983 (section 23) and is still in force in Slovakia. 23. The purpose of the Act is to regulate and secure the proper and timely reporting and registration of the place of residence of Czechoslovak citizens on the territory of the Czechoslovak Socialist Republic (section 1). 24. Citizens are obliged to report the location and the start and end dates of their place of residence to the registration office (ohlasovňa) of the local national council (miestny národný výbor) (section 2(1)(a)). 25. Under section 3(3) an individual can permanently reside for the purposes of that Act only in premises which have a registration number, issued in accordance with special regulations. 26. Section 4(1) and (2) provide that all citizens are to register their permanent place of residence. For that purpose they are to submit to the registration office their identity card and a certificate to the effect that they are authorised to use the flat or other residential premises in question. 27. Pursuant to section 4(4) on reporting the location and start date of their permanent place of residence, citizens are obliged to report also the end date of their previous permanent place of residence. 28. In accordance with section 15(1)(b), a registration office is to cancel the registration of a citizen’s permanent place of residence where it has been shown that the registration was made erroneously on the basis of an invalid document. 29. The Act was enacted on 1 July 1998 and was intended to come into force on 1 January 2000. Its entry into force was subsequently postponed five times and is presently envisaged for 1 July 2006 (section 29). 30. The Act regulates the rights and duties of the citizens of the Slovak Republic in respect of reporting their place of residence, and the rights and duties of the competent authorities in the area of registration of citizens’ place of residence (section 1). 31. All citizens are obliged to report the location and start and end dates of their place of residence to the registration office of the municipality in which it is located (section 2(1)). 32. A permanent place of residence may only be established in a building or a part of a building which has a registration number, issued in accordance with special regulations, and which is intended for residential use. The registration of a permanent place of residence confers no right in respect of the building or in relation to its owner and is merely of an evidentiary nature (section 3(2) and (3)). 33. Section 3(8)(c) and (d) provide that, for registration purposes, citizens are to submit to the registration office a document attesting to their ownership of the premises or, as the case may be, the owner’s written consent to the registration. 34. Pursuant to section 5, citizens who are not in a position to show that they are authorised to stay in a flat or other residential premises are to report their stay to the registration office in the place where they are resident (kde sa zdržiava). In such cases, the municipality in question is considered to be the permanent place of residence. The address of the municipal office is to be used as the address for official purposes, such as the service of official mail. 35. A registration office is to cancel the registration of citizens’ permanent place of residence, inter alia, when they move and register as residing elsewhere (section 7(1)(a) in conjunction with section 10(d)). 36. A registration office is also to cancel the registration at the request of the owner of the premises if the citizen in question has no right of use in respect of them (section 7(1)(f)). In such cases the citizen whose registration has been cancelled is to be registered as residing in the municipality where the registration was cancelled (section 7(2)).