CASE OF CANADY v. SLOVAKIA (No. 2)
Violation of Article 6 - Right to a fair trial
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The applicant was born in 1956 and lives in Turany. At the relevant time he was attached, as a soldier by profession, to the Military Academy in Liptovský Mikuláš. 6. On 6 May 2002 the dean of the Faculty of Logistics at the above-mentioned military academy issued a disciplinary order with reference to sections 179(2) and 78(2) of the Military Service Act 1997. In it the applicant was found guilty of a disciplinary offence in that he had grossly offended another person in the context of administrative proceedings before the District Office in Martin. The decision stated that his action constituted a minor offence under section 49(1)(d) of the Minor Offences Act 1990. 7. The decision stated that the case related to a disagreement between the applicant and his neighbours and that similar problems had occurred previously. With reference to section 81(c) of the Military Service Act 1997, the applicant was fined 1,500 Slovakian korunas (SKK), which was then the equivalent of approximately 37 euros (EUR). That sanction was considered appropriate in view of the danger for society of the applicant's action. With reference to Regulation 393/1990, the applicant was ordered to reimburse the costs of the proceedings. 8. The applicant appealed, arguing that the decision in question was premature and arbitrary as it had been taken in disregard of the relevant facts. 9. On 24 June 2002 the rector of the military academy dismissed the appeal and upheld the decision in issue. The rector's decision stated that it was final and that it could not be challenged by means of an ordinary remedy. 10. On 27 August 2002 the applicant lodged a complaint with the Constitutional Court. He alleged that the decisions given by the military authorities were arbitrary and that his right to judicial protection had been violated as those decisions could not be reviewed by the courts. He relied, inter alia, on Article 6 § 1 of the Convention. 11. The Constitutional Court rejected the complaint for lack of jurisdiction on 11 December 2002. It referred to Article 144 and Article 46 § 2 of the Constitution and to its decision II. ÚS 50/01 and held that administrative decisions which had a bearing on fundamental rights and freedoms could not be excluded from the jurisdiction of the courts. The decision stated that the applicant alleged a violation of his right to judicial protection without having sought protection of his specific rights before an ordinary court. Had the applicant brought an action in an ordinary court, the latter would have been obliged to comply with the Constitution when dealing with it. 12. Article 46 § 2 provides that any person whose rights have been affected as a result of a decision given by an administrative authority can have the lawfulness of such a decision determined by a court unless the law provides otherwise. However, the review of decisions concerning fundamental rights and freedoms cannot be excluded from the jurisdiction of the courts. 13. Article 144 § 1 provides that judges are independent and bound only by law. Under paragraph 2 of Article 144, judges are also bound by international instruments where the Constitution or the law so provides. 14. In judgment I. ÚS 37/95 of 20 December 1995 the Constitutional Court held that, in the event of doubt about the power of an ordinary court to review administrative decisions, Article 152 § 4 of the Constitution must be applied, pursuant to which the interpretation and application of laws must be in accordance with the Constitution. It must in particular be examined whether the contested administrative decision concerns a person's fundamental rights and freedoms as such decisions cannot be excluded from the jurisdiction of the courts. In that particular case the Constitutional Court found that an ordinary court's decision to discontinue proceedings, which resulted from an erroneous legal assessment of its power to deal with an action against an administrative decision, amounted to a breach of the right to judicial protection as guaranteed by Article 46 § 2 of the Constitution. 15. In decision II. ÚS 55/99 of 3 June 1999 the Constitutional Court dismissed a complaint in which the present applicant complained about the ordinary courts' refusal to review his superiors' decision to fine him for a minor offence under section 49(1)(d) of the Minor Offences Act 1990. The Constitutional Court held that, since the ordinary courts' refusal to review the decisions on the fine had been taken in accordance with the law in force at the relevant time, they did not interfere with the applicant's constitutional right to judicial protection (for further details see Čanády v. Slovakia, no. 53371/99, §§ 14-16, 16 November 2004). 16. In judgment PL. ÚS 14/98 of 22 June 1999 the Constitutional Court held that under Article 11 of the Constitution, the public authorities were obliged to apply international treaties where such treaties guaranteed a broader scope of fundamental rights and freedoms than national laws. 17. In decision I. ÚS 9/00 of 22 March 2000 the Constitutional Court pointed out that the ordinary courts were primarily responsible for respecting the fundamental rights and freedoms which the Constitution and international treaties guaranteed to individuals. 18. In judgment II. ÚS 50/01 of 11 October 2001 the Constitutional Court found that the ordinary courts had violated the plaintiff's rights under Article 46 § 2 of the Constitution. The plaintiff complained that the ordinary courts had discontinued proceedings concerning his action challenging a decision of the Minister of Defence by which he had been dismissed as a professional soldier. The courts based their decision on the fact that review of the decision in issue was excluded from their jurisdiction under Article 248 § 2(d) of the Code of Civil Procedure. The Constitutional Court held that Article 46 § 2 of the Constitution was complied with only where a court examined whether an administrative decision contested by the plaintiff had a bearing on any of his or her fundamental rights and freedoms, regardless of whether or not the relevant law permitted a judicial review of such decisions. In the case under consideration the ordinary courts had discontinued the proceedings on the ground that the law excluded judicial review of the relevant decision, without considering whether or not that decision concerned the plaintiff's fundamental rights and freedoms. In doing so, the ordinary courts concerned had violated Article 46 § 2 of the Constitution. Decision II. ÚS 50/01 was included in the Collection of Judgments and Decisions of the Constitutional Court which was published on an unspecified date in 2002. 19. Section 10(1)(a) provides that, where a person falling under military disciplinary rules acts in a manner which fulfils the constituent elements of a minor offence, such action is to be examined under a special law. 20. Section 49 (as in force at the relevant time) governs minor offences against civic propriety. Paragraph 1(d) provides that a minor offence is committed by a person who deliberately offends against civic propriety by threatening bodily harm, by causing minor bodily injury, by unjustifiably accusing another person of a minor offence, by causing annoyance or by other rude behaviour. Under section 49(2), such a minor offence is punishable with a maximum fine of SKK 3,000. 21. Section 79(1) provides that citizens who have been found guilty of a minor offence are liable to reimburse the costs of the proceedings to the State. The details are to be fixed by the Ministry of the Interior. 22. Section 72 lists the principal duties of a soldier. Subsection 1(j) obliges soldiers to abstain from behaviour which may harm the authority of the armed forces or threaten citizens' trust in them. 23. Section 78(1) defines a disciplinary offence as a wilful breach of a soldier's principal duties unless it constitutes a criminal offence or a minor offence. Section 78(2) provides that where a soldier's action is qualified as a minor offence under the Minor Offences Act 1990, it is to be examined as a disciplinary offence within the meaning of the Military Service Act 1997. 24. Section 79(1) provides that a disciplinary punishment may be imposed on a soldier who has committed a disciplinary offence. Such punishments may be imposed under the Military Service Act 1997 or pursuant to a special law in cases falling under section 78(2). Among such special laws, reference is made to the Minor Offences Act 1990. 25. Section 81 lists disciplinary punishments which may be imposed on professional soldiers. They include (a) a reprimand; (b) a strict reprimand; (c) a fine; (d) a prohibition on performing a certain activity; (e) confiscation of a particular item; and (f) a protective measure. 26. At the relevant time section 94(1) provided that final decisions on disciplinary matters were not reviewable by courts, with the exception of cases where the sanction imposed involved deprivation of liberty of the person concerned. Under Section 94(2), as amended with effect from 1 January 2004, final decisions imposing a fine are reviewable by courts. 27. Section 179(2) provides that the military authorities implement the law by issuing personal orders, disciplinary orders, military orders and decisions on compensation for damage. 28. Article 248 § 2(f), as in force at the relevant time, excluded judicial review of administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter's personal liberty or resulted in the termination of their service. That provision was repealed with effect from 1 January 2004. 29. The Ministry of the Interior's Regulation 393/1990 governs sums which are to be charged in respect of costs of proceedings under the Minor Offences Act 1990. 30. Under section 1(1), as in force at the relevant time, the lump sum which citizens are obliged to pay within the meaning of section 79(1) of the Minor Offences Act 1990 corresponds to SKK 150.