CASE OF LEXA v. SLOVAKIA
(Application no. 54334/00)
23 September 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lexa v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar
Having deliberated in private on 2 September 2008,
Delivers the following judgment, which was adopted on that date:
The Government of the Slovak Republic (“the Government”) were represented by their successive Agents, Mrs A. Poláčková and Mrs M. Pirošíková.
I. THE CIRCUMSTANCES OF THE CASE
A. The background to the case
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, on the occasion of the fifth anniversary of the establishment of the Slovak Republic, gives the following decision on amnesty as a contribution to reaching civic reconciliation and in the interest of eliminating possible sources of tension in society: ...
I order that criminal proceedings should not be started and, if they have already been started, should be discontinued in respect of criminal offences committed in the context of the notification of the abduction of Michal Kováč junior abroad.”
The decision was published in the Collection of Laws on 3 March 1998.
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as regards the interpretation of the decision on amnesty adopted on 3 March 1998 ..., declares the following decision on amnesty: ...
I order that criminal proceedings should not be started and, if they have already been started, should be discontinued concerning the suspicion of criminal offences allegedly committed in the context of the reported abduction of Ing. Michal Kováč ... abroad, which allegedly occurred on 31 August 1995.”
“The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as to the conformity with the Constitution of the decisions on amnesty of 3 March 1998 ... and 7 July 1998 ..., declares the following decision on amnesty:
Article ... VI of the decision on amnesty of 3 March 1998 ... and Article ... II of the decision on amnesty of 7 July 1998 ... are revoked.”
B. Criminal proceedings against the applicant and his detention on remand
C. Proceedings before the Constitutional Court
1. Proceedings in case no. I. ÚS 40/99
2. Proceedings in case no. I. ÚS 30/99
“... interpretation of Article 102 § 1(i) of the Constitution of the Slovak Republic:
The right of the President of the Slovak Republic under Article 102 § 1(i) of the Constitution of the Slovak Republic consists in granting amnesty in any of the forms set out in that Article.
However, this right does not authorise the President of the Slovak Republic to amend, in any way whatsoever, a decision on amnesty which has been published in the Collection of Laws of the Slovak Republic.”
3. Proceedings in case no. II. ÚS 69/99
4. Proceedings in case no. II. ÚS 70/1999
5. Proceedings in case no. II. ÚS 80/99
6. Proceedings in case no. I. ÚS 48/99
(a) Proceedings leading to the decision of 20 December 1999
(b) Separate opinion of Judge Kľučka
D. Statement by the Prosecutor General’s Office of 9 July 1999
E. Subsequent developments
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions and commentary thereon
1. Article 102 of the Constitution
“The President [of the Slovak Republic] grants amnesty, pardons or mitigates sentences imposed by criminal courts, orders that criminal proceedings should either not be started or not be pursued and expunges sentences.”
“1. The President [of the Slovak Republic] ... (i) grants amnesty, pardons or mitigates sentences imposed by criminal courts, orders that criminal proceedings should either not be started or not be pursued and expunges sentences.
2. A presidential decision on ... amnesty is valid subject to its signature by the Prime Minister or a minister empowered to do so. In such cases the Government bears the responsibility for the President’s decision.”
2. Other constitutional provisions
“The Constitutional Court shall interpret constitutional laws where there is a dispute about the point in issue. A law shall provide for the conditions.”
As from 1 July 2001 Article 128 provides:
“The Constitutional Court shall give an interpretation of the Constitution or a constitutional law where a dispute exists over the matter. The Constitutional Court’s decision on interpretation of the Constitution or a constitutional law shall be made public in the same manner as laws. The interpretation [given by the Constitutional Court] is binding for everybody from the date of its publication.”
B. Practice of the Constitutional Court
C. The Constitutional Court Act 1993 (Act 38/1993 Coll.)
D. Code of Criminal Procedure
III. LEGAL OPINIONS AND REPORTS OF NON-GOVERNMENTAL ORGANISATIONS IN SLOVAKIA
A. Statement by a group of lawyers
B. Report by the Institute for Public Affairs
IV. LAW, PRACTICE AND LEGAL OPINIONS IN OTHER STATES
V. INTERNATIONAL LAW AND PRACTICE
“1. Persons who have or are alleged to have committed offences referred to in article 4, paragraph 1 above [i.e. all acts of enforced disappearance], shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.
2. In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account.”
“... all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”
“...any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible”.
99. The Special Court of Sierra Leone has held that the amnesty granted under Article IX of the Lomé Peace Agreement of 7 July 1999 does not bar the prosecution of an accused for international crimes within the jurisdiction of that special court (Decision on Challenge to Jurisdiction: cases No. SCSL-2004-15-PT, and No. SCSL-2004-16-PT, 13 March 2004).
I. SCOPE OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”
A. Arguments submitted to the Court
1. The applicant
2. The Government
3. World Association of Former Czechoslovak Political Prisoners
B. The Court’s assessment
1. Relevant principles
2. Application of the relevant principles to the present case
(a) Scope of the decisions on amnesty of 3 March 1998 and 7 July 1998
(b) Effect of the decision on amnesty of 8 December 1998
(c) Permissibility of the applicant’s prosecution following the amnesty decisions of 3 March and 7 July 1998
(d) Other considerations
There has therefore been a violation of Article 5 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of costs and expenses (to be converted into Slovakian korunas at the rate applicable at the date of settlement in case the payment is made prior to 1 January 2009), plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 23 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
1. See, for example, “L’amnistie et la grâce”, Senate (France), Série Législation comparée, LC 177, October 2007.
2. For further details see, for example, Jody C. Baumgartner and Mark H. Morris, “Presidential Power Unbound: A Comparative Look at Presidential Pardon Power”, Politics & Policy, volume 29, no. 2, June 2001.
3. See F. Frison-Roche, “The Political Influence of Presidents Elected by Universal Suffrage in Post-Communist Europe”, Science and Technique of Democracy Collection, Venice Commission, No. 40, 2005, and M. Entin, “The Role of the President in Contemporary Europe”, Science and Technique of Democracy Collection, Venice Commission, No. 40, 2005.
4. Ioana Tanase, “Rapport roumain”, in Hélène Ruiz-Fabri et al. (Dir.), La Clémence saisie par le droit - Amnistie, prescription et grâce en droit international et comparé, Société de législation comparée, Paris 2007, pp. 584 ff.
1. César Aguado Renedo, Los problemas constitucionales del ejercicio de la potestad de gracia, Civitas Madrid, 2001, p. 187.
2. Jean-Christophe Le Coustumer, “La grâce”, in Hélène Ruiz-Fabri et al. (Dir.), La Clémence saisie par le droit - Amnistie, prescription et grâce en droit international et comparé, Société de législation comparée, Paris 2007, pp. 250 ff.
3. César Aguado Renedo, op. cit., p. 189.