CASE OF TUREK v. SLOVAKIA
Preliminary objections dismissed;Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicant was born in 1944 and lives in Prešov. 9. The applicant worked in the State administration of the school system. He occupied a leading post that fell within the purview of section 1 of Act No. 451/1991 Coll. (“the Lustration Act”) which defined some supplementary requirements for holding certain posts in public administration. 10. In January 1992 the applicant’s employer requested, pursuant to section 6 of the Lustration Act, that the Ministry of the Interior of the Czech and Slovak Federal Republic (“the Federal Ministry”) issue a clearance (lustračné osvedčenie) concerning the applicant under section 9 of the Lustration Act (see below). 11. On 19 March 1992 the Federal Ministry issued a negative security clearance. It stated that it was based on section 9 (1) of the Lustration Act and certified that the applicant “[was] registered as a person referred to in section 2 (1) (b) of the Lustration Act”. This provision defined six categories of collaborators of the [former] State Security Agency (Štátna bezpečnosť, “StB”) who, if registered as such in the StB’s files in the period from 25 February 1948 to 17 November 1989, were disqualified from holding certain posts in public administration. The document was served on the applicant on 26 March 1992. 12. The applicant resigned from his post. In 1994 he left his employer completely, having felt compelled to do so. Since then the applicant has been commuting to work in a location remote from his place of residence. 13. The information about who was registered in the StB files in the categories referred to in section 2 (1) (b) of the Lustration Act has been made public in newspapers and, unofficially as well as officially, on the internet. 14. On 25 May 1992 the applicant lodged an action against the Federal Ministry for protection of his good name and reputation under Article 11 et seq. of the Civil Code with the Prague (the Czech Republic) City Court (Městský soud). He claimed that his registration as a collaborator of the StB was wrongful and unjustified. He requested that the Federal Ministry issue a new clearance to the effect that he was not registered as a person referred to in section 2 (1) (b) of the Lustration Act. 15. The City Court subsequently sent a copy of the action to the defendant, invited the applicant to pay the court fee and listed a hearing for 6 August 1992. 16. On 23 July 1992 the applicant filed a request under Article 12 §§ 2 and 3 of the Code of Civil Procedure for a transfer of his action to the Košice Regional Court (Krajský súd). On 29 July 1992 he demanded that the hearing scheduled for 6 August 1992 be cancelled in view of his request for transfer of the action. 17. On 7 August 1992, after the applicant had paid the court fee, the City Court sent a copy of the request of 23 July 1992 to the defendant for comments. On 23 September 1992 the latter objected to the transfer. 18. On 24 September 1992 the City Court submitted the case file to the Supreme Court (Najvyšší súd) of the Czech and Slovak Federal Republic for a determination as to which court was to entertain the action at first instance. 19. On 4 November 1992 the Supreme Court ruled that the action fell to be determined by the Regional Court. The case file was sent to it on 13 November 1992. 20. On 16 November 1992 the Regional Court requested the defendant’s observations in reply. In a letter of 25 November 1992 the defendant replied that it had already filed its observations with the City Court. On 10 December 1992 the City Court transferred those observations to the Regional Court. 21. On 18 February 1993 the Regional Court invited the applicant to specify which public body possessed the powers conferred by the Lustration Act in the area of security screening after the dissolution of the Czech and Slovak Federal Republic on 1 January 1993. On 26 February 1993 the applicant responded that the body currently responsible for security screening in Slovakia was the Ministry of the Interior of the Slovak Republic (“the Slovak Ministry”). It was thus understood that the action was directed against the said Ministry. 22. On 9 March and 8 April 1993 the Regional Court invited the applicant to submit within ten days second copies of the action and of the submissions of 26 February 1993. 23. On 21 April 1993 the Regional Court invited the Slovak Ministry to present its observations in reply to the action. In its response of 6 May 1993 the Ministry primarily contested its standing to be sued in the case, arguing that it had not assumed the authority of the Federal Ministry under the Lustration Act. Relying on Resolution no. 276 of the Government of Slovakia of 20 April 1993 (“Resolution no. 276”), the defendant asserted that the body which had taken over those powers under the Lustration Act was the Slovak Intelligence Service (Slovenská informačná služba – “the SIS”). The Ministry also maintained that under the said resolution the Prime Minister of Slovakia was entrusted with the task of preparing jointly with the Minister of Justice of Slovakia a petition to the Slovak Constitutional Court (Ústavný súd) for a review of the constitutionality of the Lustration Act. 24. On 4 October 1993 the applicant amended his submissions of 26 February 1993 on the ground that the Federal Ministry’s powers under the Lustration Act had devolved to the SIS, against which the action was accordingly directed. 25. On 21 October 1993 the Regional Court invited the SIS to present its observations in reply. The defendant submitted the observations on 16 November 1993 and on 9 December 1993 the Regional Court sent their copy to the applicant. 26. On 9 May 1994 the Regional Court held a hearing at which the applicant modified the subjectmatter of the action in that he sought a judicial ruling declaring that his registration as a person referred to in section 2 (1) (b) of the Lustration Act was wrongful. The applicant further informed the court that he wished to call ex-StB agents P., K. and M. as witnesses. He submitted the addresses of P. and K. and stated that he would submit the address of M. later. The defendant consented to the modification of the action and maintained that the relevant ex-StB documents were held in the archives of the Federal Ministry. The hearing was adjourned with a view to obtaining these documents. 27. On 10 June 1994 the Regional Court sent a letter to the Federal Ministry inviting it to submit copies of the relevant ex-StB documents. The letter was returned unanswered as “undelivered”. 28. On 12 September 1994, on the basis of a treaty of 29 October 1992 between the Slovak Republic and the Czech Republic on mutual legal assistance (“the mutual legal assistance treaty of 1992”), the Regional Court sent a letter rogatory to the City Court requesting that it obtain from the Ministry of the Interior of the Czech Republic (“the Czech Ministry”) copies of all ex-StB documents in its possession concerning the applicant. 29. On 27 September 1994 the City Court advised the Regional Court that the request had been submitted to the Czech Ministry, which would reply directly to the Regional Court. 30. In a letter of 3 October 1994 the Czech Ministry informed the Regional Court that all ex-StB documents concerning Slovakia had been transmitted to the Slovak Ministry and that, accordingly, the documents concerning the applicant had to be searched for there. 31. On 12 October 1994 the Regional Court requested that the Slovak Ministry submit within 15 days copies of all ex-StB documents concerning the applicant. 32. The request of 12 October 1994 was answered on 2 November 1994 by the SIS to the effect that, apart from a database in which the applicant was listed as an ex-StB agent, there were no ex-StB materials concerning him in its possession. The defendant relied on a treaty between the governments of the Slovak Republic and the Czech Republic on joint usage of information and archives generated by ministries of the interior in the area of internal order and security which had been signed on 29 October 1992 and promulgated in the Collection of Laws under No. 201/1993 (“the treaty of 1992”). The SIS submitted that under this treaty the relevant documents were with the Czech Ministry. The SIS again contested its standing to be sued in the case, arguing that the powers in the area of security screening which had been conferred on it under Resolution no. 276 were limited to 9 months. As this period had already expired, there was presently no official body entrusted with these powers in Slovakia. 33. On 21 December 1994 the Regional Court reiterated its request to the Czech Ministry for copies of ex-StB documents concerning the applicant. On the same day it also addressed a request to the Office of the Government of the Slovak Republic for information as to which authority was currently vested with the powers under the Lustration Act as regards security screening. As no answer had been received, the Regional Court repeated the requests in May 1995. 34. On 22 May 1995 the Office of the Government informed the Regional Court that the question of legal succession in respect of the powers under the Act was not currently addressed in the existing legislation. However, by analogy, the powers of the Federal Ministry had been assumed by the Slovak Ministry. 35. In a letter of 24 May 1995 the Czech Ministry informed the Regional Court that there were no documents concerning the applicant in its archives. Considering the relevant part of the letter of the SIS of 2 November 1994 to be confused, it relied on the Protocol to the treaty of 1992 and maintained that the documents searched for were stored in Slovakia. 36. On 9 August 1995 the Regional Court ordered that the SIS deliver within 20 days copies of all ex-StB documents concerning the applicant which were in its possession. The SIS complied on 24 August 1995 and proposed that the proceedings be discontinued on the grounds of its lack of standing to be sued. The SIS also pointed out that the documents submitted were top secret and that the applicable confidentiality rules had to be observed. 37. Another hearing was held on 11 December 1995. The applicant extended the action by directing it also against the Government of the Slovak Republic, as a collective constitutional body with distinct legal personality. The hearing was adjourned in order for the applicant to resubmit the extended action in writing. He did so on 13 December 1995. 38. On 15 December 1995 the SIS filed its observations in reply to the extended action. 39. At an unspecified later point the Vice-President of the Regional Court exercised his power under section 2 § 2 of the State Administration of Justice Act of 1992 and assigned the case to another Chamber of that court on the ground that the original Chamber had an excessive workload. 40. On 9 September 1996 the Regional Court allowed the extension of the action against the Government of Slovakia. On the same day it invited the applicant to disclose the address of witness M. 41. In a written submission of 19 September 1996 the Office of the Government asserted that the Government was not the legal successor of the Federal Ministry and possessed no powers under the Lustration Act. It was thus not the correct defendant to the action. 42. On 28 October 1996 the applicant informed the Regional Court that he had no information as to the address of M. and requested that the court itself make an inquiry as to the address. 43. The hearing called for 15 January 1997 had to be adjourned as the representatives of the applicant and the Government did not appear. 44. On 21 April 1997 the Regional Court held another hearing. It made a formal ruling allowing the modification of the subject matter of the action, as sought by the applicant on 9 May 1994. The Regional Court then heard the parties and examined the StB file concerning the applicant. 45. On 21 May 1997 the SIS informed the Regional Court of M.’s address. 46. On 2 July 1997 the applicant submitted a pleading in which he commented on the documentary evidence submitted by the defendant. 47. By letters of 9 September, 20 November and 10 December 1997 the Regional Court requested that the Slovak Ministry discharge witnesses P., K. and M. from the obligation of confidentiality in respect of the subject matter of the proceedings. The Ministry agreed on 29 June 1998. 48. On 13 August 1998 the Regional Court held another hearing at which witnesses P., K. and M. failed to appear. Witness K. apologised for his absence and submitted in writing that he had “no recollection of the applicant and no knowledge that the StB would have ever had any file in respect of him”. The applicant admitted having met K. and M. several times before and after his journeys abroad when they had, respectively, instructed him on how to behave abroad and asked for information about his stay. Their discussions were of a general nature and included the situation at the applicant’s workplace. The applicant also admitted having obtained and provided to K. a list of students who had been preparing for studies abroad, information he considered public in any case. He had never had the impression that he was considered a collaborator and had never been asked to keep his contacts with K. and M. secret. The hearing was adjourned until 24 August 1998 with a view to calling the witnesses again. 49. At the hearing of 24 August 1998 the Regional Court heard M. and K. Witness M. confirmed that he had been in charge of recruiting the applicant as a collaborator. However, if there had ever been any act of formal undertaking to cooperate (viazací akt) on the part of the applicant, M. had not been present at it. He had received the impression that the applicant had not been interested in meeting him. Their conversation had concerned ordinary affairs and the applicant had not submitted any documents. The reports mentioned in the StB file had been drawn up by M. on the basis of his conversation with the applicant. According to M., the applicant had never given any information that was capable of harming any specific person. There had been norms as to how many new agents were to be recruited. As a result, new “recruitments” had frequently been only formal, with the new “agents” conceivably having no knowledge of them. Witness K. claimed to know the applicant only by face. He did not remember having ever met him and denied having ever received any information or documents from him. The applicant’s StB file was partially created by K. In the given period the situation in the StB had been such that, in order to meet their statistical objectives, it was possible for officers to run a file in respect of an “agent” by filing information from their own sources and declaring them as having been obtained from that “agent”. The witness P. did not appear and the court observed that it had been impossible to deliver the summons to him. In response to the court’s request, the parties stated that they intended to adduce no further evidence apart from hearing P. and examining the relevant Internal Guideline of the Federal Ministry of 1972 (“the 1972 guideline”) concerning secret collaboration. 50. On 10 September 1998 the Regional Court ordered that the summons for the forthcoming hearing be served on P. by the police. No service was however actually effected. 51. At a hearing held on 24 September 1998 the SIS submitted the 1972 guideline. As this document was classified, the applicant had no access to it. Apart from proposing to hear P. the parties adduced no other evidence. 52. The Regional Court listed a hearing for 24 February 1999 and ordered that the summons be served on P. by the police. At this hearing P. finally appeared and gave evidence. He acknowledged that he had been the chief district police officer during the relevant period and that he remembered the applicant. However, he could not recollect clearly the details of their collaboration. P. pointed out that the StB’s organisation had been very strict and considered that, if something had been recorded, it must have been true. In contradiction to M., P. considered that it was not possible that the applicant had not known that he was acting for the StB as an “agent”. The applicant submitted that the majority of his foreign travel had taken place before 1984, when he was allegedly acquired as an agent. The contention that he had agreed to collaborate in return for the StB’s support in connection with travel was therefore unfounded. 53. On 19 May 1999, following another hearing held on the same day, the Regional Court dismissed the action. 54. First of all, the Regional Court found that the Government of the Slovak Republic had no standing to be sued in the proceedings and that the correct entity to defend the action was the SIS. The Regional Court considered that the crucial criterion for establishing standing was which entity de facto possessed the ex-StB archives. On the basis of the StB file pertaining to the applicant, the Regional Court established that the applicant had been listed since 1983 as a “candidate for secret collaboration” and as an “agent” of the StB since 1984. For tactical reasons it had been decided not to have the applicant sign a formal undertaking to collaborate. This was permitted under the 1972 guideline. The applicant’s StB file contained only an index indicating which reports and documents he had provided. There was a note that the reports and documents themselves had been officially destroyed in late 1989 when, according to the file, cooperation with the applicant had been terminated. The Regional Court also noted that the applicant had on thirteen occasions travelled abroad to western Europe at the relevant time and that it was then usual for a person to be interviewed by the StB prior to and after such travel. The applicant himself acknowledged having met the StB in connection with his travels. He also admitted having been in contact with K., M. and P. and having unwillingly met with them. However he categorically denied ever having given them any intelligence information. The other witness evidence was contradictory. The Regional Court based its finding on the testimony of P., holding it to be credible and consistent with the case file, and did not accept the testimony of K., observing that it contradicted the applicant’s own submissions. In the light of all the information in its possession, including what was known of the applicant’s intellectual capacity, the Regional Court found that he must have known that he had been meeting StB agents and that their contact had actually amounted to formal collaboration. In so far as the applicant had disputed such a conclusion and asserted that his registration in the StB files had been unjustified, he had failed to prove his case; in particular, he had failed to show that the registration was contrary to the applicable rules. 55. On 6 July 1999 the applicant lodged an appeal with the Supreme Court. He challenged the credibility of witness P., objected that he had had no access to the 1972 guideline, which was a crucial piece of evidence, and argued that the Regional Court had erred in its factual assessment of the case. 56. On 4 August 1999 the SIS filed its observations in reply to the appeal. On 24 August 1999 the Regional Court transmitted the case file to the Supreme Court for a decision on the appeal. 57. On 26 October 1999, following a hearing held on the same day, the Supreme Court upheld the Regional Court’s judgment. It found that the Regional Court had adequately established the facts of the case and found no logical or other errors in the Regional Court’s assessment of the evidence. The Supreme Court held that the fact that the applicant was registered in the StB files as a person referred to in section 2 (1) (b) of the Lustration Act did not by any means constitute evidence that he had been a conscious collaborator of the StB. In line with established judicial practice, the Supreme Court pointed out that the procedure concerning the issuance of a security clearance under the Act could not amount to a violation of an individual’s good name and reputation. Only unjustified registration in the StB files would amount to such a violation. The Supreme Court considered that it was crucial for the applicant to prove that his registration had been contrary to the rules applicable at the material time and concurred with the Regional Court’s conclusion that the applicant had failed to do so. No appeal lay against this decision. 58. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 59. Pursuant to Article 6, as applicable at the relevant time, courts were to work together with the parties to ensure that contentious facts were established reliably and that the parties’ rights were protected speedily and effectively. 60. Under Article 100 § 1, once proceedings commence, the court is to act without further procedural motions so that the matter is examined and determined as expeditiously as possible. 61. Under Article 114 § 1, a hearing is to be prepared by the President of the Chamber so that the matter can be decided, usually (spravidla) in a single session. 62. Article 120 § 1 provides that the parties to the proceedings are to adduce evidence in support of their assertions. The court may also take and examine (vykonať) evidence which has not been adduced [by the parties]. The court decides on the facts as established on the basis of the evidence taken and examined. 63. The mechanism of legal protection of personal integrity under Article 11 et seq. of the Civil Code has primarily found its practical application in defamation proceedings. Certain judicial decisions (see the judgments of the Supreme Court file nos. 1Co 23/94 and 5Cdo 39/2000) and academic views (see J. Švestka, Ochrana osobnosti, Linde Praha, a.s., 1996, p. 138 and J: Drgonec; Tlačové právo na Slovensku, Archa, 1995, p. 148) seem to suggest that, in actions of that type, the burden of proving that an interference with the plaintiff’s good name and reputation was justified lies with the defendant. 64. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular of their life and health, civil and human dignity, privacy, name and personal characteristics. 65. Under Article 13 § 1, natural persons have the right to request that unjustified infringement of their personality rights be ended and that the consequences of such infringement be eliminated. They also have the right to appropriate just satisfaction. 66. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 67. The Act laid down supplementary requirements for the holding of certain important posts and functions in State organs and institutions which were filled by election, designation or appointment. The Act prevented persons mentioned in section 2 (1) under letters (a) through (h) from exercising the functions enumerated in section 1. 68. Under section 2 (1) (b), the functions covered by the Act could be exercised only by persons who were not registered in the [former] StB files in the period between 25 February 1948 and 11 November 1989 as “resident”, “agent”, “holder of a conferred flat”, “holder of a conspiratorial flat”, “informer” or “ideological collaborator of the StB”. 69. Under section 2 (1) (c), the functions covered by the Act could only be exercised by persons who had not been conscious collaborators of the StB in the above period. On 26 November 1992 the Constitutional Court of the Czech and Slovak Federal Republic (Ústavný súd Českej a Slovenskej Federatívnej Republiky) found that this condition was in contradiction with the Charter of Fundamental Rights and Freedoms (Listina základných práv a slobôd) and with the International Covenant on Economic, Social and Cultural Rights. Accordingly, this condition was repealed as from 15 December 1992. 70. The fact that a person met the requirements of section 2 of the Act was to be proven by means of a security clearance issued by the Ministry of the Interior under section 9 of the Act. Under paragraph 1 of that section the security clearance was to be delivered into the hands of the person concerned alone. 71. Under section 14 (1), if a person does not meet the requirements of section 2 of the Act, the employer is to terminate that person’s employment by notice within 15 days unless the employment terminates earlier by agreement or otherwise or the person concerned is transferred to another post outside the scope of section 1 of the Act. 72. Under section 18 (2), such termination of employment can be challenged before the courts within two months from the date on which the employment purportedly ended. 73. Section 19 provides that any disclosure of the clearance or of the information contained in it is prohibited, save with the consent of the person concerned. 74. The temporal application of the Act is governed by its section 23, under which the Act ceased to have effect in Slovakia on 31 December 1996. 75. It has been established by judicial doctrine and the relevant case law that persons who consider themselves adversely affected by their registration in the former StB files can seek redress before civil courts by means of an action for protection of their personal integrity under Article 11 et seq. of the Civil Code. 76. Since 29 September 2002 the keeping of files generated by the StB in respect of its collaborators, purported or real, has been regulated by the Act on the Disclosure of Documents regarding the Activity of State Security Authorities in the period 1939-1989 and on Founding the National Memory Institute (the National Memory Act) (Zákon o sprístupnení dokumentov o činnosti bezpečnostných zložiek štátu 1939 - 1989 a o založení Ústavu pamäti národa). 77. The Act regulates (a) the establishment of the National Memory Institute; (b) the recording, collecting, disclosing, publishing, managing and use of documents created by defined security forces in the period from 18 April 1939 to 31 December 1989 in respect of crimes committed against persons of Slovakian nationality or citizenship; (c) the manner of detecting and prosecuting such crimes; (d) the protection of the personal data of persecuted persons; and (e) activity in the area of public education. 78. “9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services. ... 11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. 12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy. 13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”