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KOKY AND OTHERS v. SLOVAKIA - 13624/03 [2012] ECHR 994 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/994.html
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[2012] ECHR 994
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FORMER
SECTION IV
CASE OF
KOKY AND OTHERS v. SLOVAKIA
(Application
no. 13624/03)
JUDGMENT
STRASBOURG
12
June 2012
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 Koky and Others v. Slovakia,
The
European Court of Human Rights (Former Section IV), sitting as
a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13624/03) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by ten Slovak nationals of Roma ethnic origin: Mr
Ján Koky, Mr Martin Kočko, Ms Zaneta Kokyová, Mr
Milan BaláZ, Mr Rastislav Koky, Ms Renáta Kokyová,
Ms RuZena Kokyová, Ms Renáta Čonková,
Ms Justina Lacková and Mr Ján Koky Jr. (“the
applicants”), on 17 April 2003. The applicants’
particulars appear in the appendix to this judgment.
The
applicants were represented by the League of Human Rights Advocates
in Bratislava and the European Roma Rights Centre in Budapest
(Hungary).
The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Ms A. Poláčková, who
was succeeded in that function by Ms Pirošíková.
The
applicants alleged, in particular, that – in violation of
Article 3 of the Convention and several other of their Convention
rights - the State authorities had failed to ensure a prompt,
effective and impartial investigation into, and to punish the
perpetrators of, an allegedly racially motivated assault on them
by private individuals.
By
a decision of 22 September 2009, the Court declared the whole
application admissible, joining to the merits a question of
exhaustion of domestic remedies under Article 167 of the Code of
Criminal Procedure (Law no. 141/1961 Coll., as in force at the
relevant time,“the CCP”) and sections 31 et seq.
of the Public Prosecution Service Act ((Law no. 153/2001 Coll.,
as amended – “the PPS Act”).
The
applicants and the Government each submitted further written
observations (Rule 59 § 1) on the merits, and the applicants
replied in writing to the observations submitted by the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Incidents of 28 February 2002
The
following incidents occurred on 28 February 2002. The detailed
accounts of events by the parties and those involved are at variance
at times. In this section, therefore, the incidents are described
only briefly. Differing details, if any, are pointed out in the
subsequent sections.
1. Argument at the bar
In
the evening of 28 February 2002, at around 7.30 p.m., an argument
started in a bar in the village of Gánovce-Filice, when a
non-Romani waitress, I.S., refused to serve a drink to a person of
Roma ethnic origin, M.K.
The
argument developed with the tipping of a drink over M.K., in response
to which he slapped or attempted to slap Ms I.S. in the face,
accidentally knocking glasses over, which fell and broke.
Subsequently
I.S. telephoned one of her three sons, P.S., who came to the bar soon
afterwards. After he had left, another of her sons, M.S., who was the
owner of the bar, came to the bar and remained there, assisting I.S.
in serving customers, until closing time. Around that time, the
girlfriend of P.S., E.N., also came to the bar and then accompanied
I.S. home.
2. Attack at Roma settlement
(a) The attack
Later
that evening, at around 9.45 p.m., a group of at least twelve people
went into the Roma settlement in the village where the applicants
lived. Some of them were wearing balaclavas and they were armed with
baseball bats and iron bars.
Allegedly
shouting racist language, they forcibly entered houses nos. 61,
67 and 69, damaging the interior and breaking the windows.
On
entering house no. 67, the attackers physically assaulted applicant
Mr Ján Koky. Some of the other applicants and another person,
who were also present at the house during the attack, witnessed the
attack but managed to avoid it by hiding (see paragraph 16
below).
Once
the attackers understood that the police had been called, they made
their escape. When they had gone approximately 200 metres from the
settlement, they met applicants Mr Martin Kočko and Mr Rastislav
Koky and physically assaulted them, causing them the injuries
described below. Racist language is alleged to have been used during
this part of the attack too.
(b) Circumstances and consequences of the attack
House
61 was inhabited by applicant Ms Renáta Čonková
and her partner, Z.K. They were both at home during the attack.
House
67 was inhabited by applicants Mr Ján Koky, Ms Zaneta Kokyová,
Mr Rastislav Koky, Ms Renáta Kokyová, Ms RuZena Kokyová
and Mr Ján Koky Jr and by a certain J.K.
Apart
from applicant Rastislav Koky, they were all present at the house
during the incident, and so were applicants Mr Milan BaláZ and
a certain H.B.
When
the attack took place in his house, applicant Mr Ján Koky
sustained no physical injuries.
House
69 was owned and inhabited by applicant Ms Justína Lacková.
The
overall damage to the applicants’ property was estimated at the
equivalent of at least 310 euros (EUR).
The
parties are not united over the extent of the physical injuries
sustained by Mr Martin Kočko and Mr Rastislav Koky (see
paragraph 14 above).
The
applicants claim that Mr Rastislav Koky suffered a skull fracture, a
cut to the left side of the back of the head, a crushed left arm,
a pressure injury to the left side of the back and bruises to
the left knee, which required him to stay in hospital for ten to
fourteen days.
As
regards Mr Martin Kočko, the applicants claim that he had
sustained a scraped elbow and a crushed arm, which required a
recovery time of seven to ten days. In that respect the applicants
relied on the decisions of 26 April and 22 May 2002 (see
paragraphs 73 and 81 below).
In
contrast, the Government submit that Mr Martin Kočko’s
injuries necessitated no stay in hospital, while those of Mr
Rastislav Koky only required him to stay in hospital for four days.
3. Attack at I.S.’s family’s house
After
I.S. had come home from her shift, an unknown person broke the
window of her house by throwing a stone at it and also broke the
windows of a car parked in her yard.
It
is not entirely clear what relation this attack bore to the argument
at the bar and the attack at the settlement, both in terms of time
and of cause.
It
appears that those present during the attack at I.S.’s house
included I.S., P.S., E.N., her brother: M.N., and a certain M.L.
B. Initial response by the police
The
police arrived at the Roma settlement about half an hour after the
incident. That night and in the early hours of the following day,
that is to say 1 March 2002, the police carried out inspections
and interviews, as summarised below on the basis of official records.
1. Inspections
Between
10.30 and 11 p.m. house no. 67 was inspected in connection with
a suspected offence, which was referred to as “damage to
family house”. Applicant Mr Ján Koky, who lived in the
house, was present.
Broken
windows were found in various parts of the house, and two biological
traces were identified (bloodstains on a door and on a baseball
bat) and sent for further analysis.
Between
0.15 and 1.00 a.m. house no. 61 was inspected in connection with a
suspected offence, which was referred to as “damage to windows
and door of a house”. Z.K., whose house it was, was present.
Damage
to the latch and casing of the front door were identified, as well as
broken panes in two of the windows. Inside the house, on the floor in
the kitchen and a room where the windows had been broken, two stones
of 8 and 20 cm diameter were found.
Between
1 a.m. and 1.30 a.m. the following day house no 69 was inspected in
connection with a suspected offence, which was referred to as “damage
to a window pane of a house”. Applicant Ms Justína
Lacková, whose house it was, was present.
Broken
panes in three windows were identified, and one biological trace was
sampled for further analysis.
2. Interviews
Applicant
Mr Ján Koky, Z.K. and applicant Ms Justína Lacková
were interviewed: the interviews started at 2.25 a.m., 3.45 a.m. and
4.30 a.m. respectively.
Mr
Ján Koky submitted, inter alia, that earlier that
evening a group of approximately five attackers had entered his
house, no. 67. They had been armed with batons and had tried to hit
him. He managed to fend them off and other occupants of his house had
managed to hide, so the attackers had mainly been hitting the kitchen
furnishings. Four of the attackers were wearing balaclavas to conceal
their faces. The remaining one, whom he did not know, had no
balaclava. They had not uttered a word.
Z.K.
described how the attackers had broken windows in his house, no. 61,
had forcibly entered and had made their escape after learning that
the police were on their way. According to the transcript, the
interview ended at 4.20 a.m. Z.K. then added that when they entered
his house the attackers were shouting: “Gypsies, we’re
going to strike you down today”.
Ms
Justína Lacková submitted that she had been at home
with her three minor children during the attack and that her husband
had not been there. She had witnessed the turmoil outside her house
through a window. Two of her house windows had subsequently been
broken, probably with sticks, because no stones or other foreign
objects had been found inside. In her submission, the attackers had
pounded at her entrance door but had not succeeded in getting in. Ms
Lacková assessed the damage to her house and submitted a claim
for compensation to the proceedings. The interview was concluded at
5.15 a.m. and then reopened to pose a direct question to the
applicant, in response to which she retorted that, on the part of the
attackers, she had only heard indistinct shouting. The interview was
finally concluded at 5.30 a.m.
C. First investigation into the incidents of 28
February 2002
1. Initial stage
On
1 March 2002 the Poprad District Police Investigator (“the
DPI”) initiated a criminal investigation into the offences of
causing bodily harm, violating the privacy of a home and criminal
damage within the meaning of Articles 221 § 1, 238 §§
1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961
Coll., as applicable at that time) respectively.
It
was suspected that a group of at least twelve individuals had
unlawfully entered houses nos. 61, 67 and 69, and that they had
damaged these houses, as well as house no. 69. It was also suspected
that while at his house the attackers had tried to hit applicant Mr
Ján Koky with baseball bats and that while making their escape
from the scene of crime, they had assaulted applicants Mr Martin
Kočko and Mr Rastislav Koky by hitting them with baseball bats
and kicking them, thus causing them bodily injuries on account of
which, according to a preliminary estimate, they would need recovery
time and would be unfit for work for seven to ten days and ten to
fourteen days respectively.
The
injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky
were also assessed in an expert medical report procured by the DPI,
in which their recovery time was assessed at four weeks and thirteen
days respectively.
On
1 and 4 March 2002 respectively, an official note was made in the
investigation file summarising the applicants’ submissions and
a document was included in it outlining the investigation
strategy.
On
5 March 2002 at 10.00 and 10.50 a.m. respectively, the DPI
interviewed I.S. and P.S. They described their involvement in the
incident at the pub and the subsequent attack which took place at
I.S.’s house and on his car. I.S. submitted, inter alia,
that she had closed the bar and had gone home at around 9.50 p.m.
P.S. submitted that the closing time of the bar was 10 p.m. and that
his mother had arrived home after that time.
On
7 March 2002 the DPI reported to the Ministry of the Interior on the
status of the investigation. It was mentioned, inter alia,
that the applicants’ legal representative had been obstructing
the investigation, in that he had instructed the applicants not to
accept summonses to interviews if handed to them in person, and not
to take part in any interviews unless he was present. The
qualification of the representative to appear on the applicants’
behalf in criminal proceedings in Slovakia was also called into
question.
2. Interviews on 12 March 2002
In
the morning of 12 March 2002, the DPI interviewed applicant
Mr Rastislav Koky, T.K. and M.K. and applicants Mr Ján
Koky Jr. and Mr Martin Kočko. These interviews started at
8.20, 9.15, 9.45, 10.10 and 10.40 respectively.
Mr
Rastislav Koky described the pub incident between I.S. and M.K.
According to him, following the altercation I.S. had called P.S., who
had arrived within five minutes, and who had warned Mr Koky that
another son of I.S. would come round and there would be trouble. He
also submitted that, later that evening, about thirty men had caught
and beaten him, that he had subsequently had to be taken to hospital
by ambulance, that he had been hospitalised for three to four days
and that due to his injuries he was still unfit for work. In response
to a direct question, Mr Rastislav Koky submitted that “during
the attack, none of the attackers uttered a word”.
T.K.
and M.K. submitted that on the evening of the incident they had seen
I.S. with a group of forty to fifty men approaching the Roma
settlement.
Mr
Ján Koky Jr. described the pub incident, including the remark
that P.S. had told him and others to go away because his brother
would come and there would be trouble. Mr Ján Koky Jr. also
submitted that, after he had seen his brother, applicant Mr Rastislav
Koky, and his injuries, he had been convinced that P.S. was
responsible. He had therefore gone to I.S.’s house, where he
had had a verbal exchange with E.N. and M.N. However, he had
gone away after the latter had produced a handgun and threatened
to shoot him.
Mr
Martin Kočko described the pub incident, the arrival of P.S. in
the pub, the departure of about forty-five men and the assault on him
by four individuals wearing balaclavas to conceal their faces and two
without, accompanied with a cry “Negroes, gypsies, we’re
going to kill you”. After receiving medical care in hospital,
he had gone home and had not been hospitalised.
3. Interviews of 13 March 2002
During
the morning of 13 March 2002 the DPI interviewed applicants Mr Milan
BaláZ, Ms Zaneta Kokyová, RuZena Kokyová and Mr
Ján Koky. They also interviewed H.B., the respective
interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at
10.55.
Mr
Milan BaláZ submitted his account of the assault at house
no. 67, where he had been present at the relevant time, visiting
his girlfriend. In his submission, the assault had been accompanied
by a shout of “Gypsies get out, we’re going to kill
you!”
Ms
Zaneta Kokyová, who lived in house no. 67, gave an account of
the assault at their house and settlement, submitting that it had
been accompanied by shouts of “Get out!”, “[religious
expletive], gypsy whores, gypsy gang, get out, or else we are going
to kill you all!” and “Gypsy whores, today you are dead,
you are going to get a kicking today!”.
Ms
RuZena Kokyová gave an account of the attack at her house,
no. 67, submitting that it had been accompanied by a male voice
shouting “Gypsies, black muzzles, today you are going to get
killed, get out!”.
Mr
Ján Koky gave an account of the attack at house no. 67, where
he lived, submitting that it had been accompanied by shouts of
“Gypsies, today you are going to be burned”.
H.B.,
who was in house no. 67 during the attack, gave an account of it and
submitted that it had been accompanied by shouts of “Gypsies,
black muzzles, get out!”
4. Extension of the investigations
On
13 March 2002 the DPI initiated a criminal investigation into
a further offence, namely that of violence against an individual
or a group of individuals within the meaning of Article 196 §§
1 and 2 of the Criminal Code.
The
decision was based on the suspicion that, in the incident described
above, several unidentified individuals had entered the Roma
settlement shouting “Gypsies, come out or we will kill you”,
while some of them had gone into houses 61 and 67 shouting “Gypsies,
come out or we will kill you”.
The
decision refers to the charges of 1 March 2002 and to subsequent
statements from H.B., T.K., M.K. and applicants Mr Ján Koky,
Mr Martin Kočko, Ms Zaneta Kokyová, Mr Milan BaláZ,
Mr Rastislav Koky, Ms RuZena Kokyová and Mr Ján Koky
Jr.
The
decision also refers to the assault on applicant Mr Martin Kočko
being accompanied by shouts of “Negroes, gypsies, we will kill
you!”.
5. Interviews of 14 March 2002
The
series of interviews started at 8 a.m. with P.J., continued at 8.35
a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S.: M.S.
P.J.
said that he could see that I.S. was distressed when he arrived at
the bar. E.N. described her arrival at the bar and what happened
while she was there, that she went with I.S. to her house, and the
subsequent incident there. The deposition of M.S. was fully in line
with those of his family members.
6. Interviews of 20 March and 10 April 2002
In
the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta
Čonková, J.K. and applicant Ms Renáta Kokyová,
whose interviews began at 9.10, 9.45 and 10 a.m. respectively.
Ms
Renáta Čonková gave an account of the attack at
the house of applicant Ján Koky, which she had observed
through the window of her own house. In her submission, the attack at
the house of the applicant Ján Koky was accompanied by a shout
of “Black whores, today we’re going to kill you!”.
As to Ms Čonková’s own house, five windows had been
broken by thrown stones which were found inside. The attackers had
only got as far as a corridor in the house before they made their
escape.
J.K.
gave an account of the attack at house no. 67, in which she lived. In
her submission, the attack was accompanied by a shout of “Gypsy
whores, today you will kick the bucket”.
Ms
Renáta Kokyová gave an account of the attack at house
no 67, where she lived. In her submission, the attack was accompanied
by a shout of “Gypsy whores, today we’re going to kill
you”.
7. Interviews of 27 March and 10 April 2002
The
morning of 27 March 2002 saw a long series of short interviews,
starting at 8 with applicant Mr Ján Koky, at 8.10 with
applicant Ms RuZena Kokyová, at 9 with H.B., at 9.30 with
J,K,, at 9.35 with applicant Mr Rastislav Koky, at 9.40 with
applicant Ms Renáta Kokyová, at 9.45 with applicant Mr
Milan BaláZ, at 9.50 with applicant Ms Zaneta Kokyová,
at 9.55 with Z.K., at 10.05 with applicant Ms Renata Čonková,
at 10.10 with applicant Ms Justína Lacková, and at
10.25 with applicant Mr Martin Kočko.
Mr
Ján Koky, Z.K. and J.K. completed their respective depositions
of 1 and 20 March 2002 in so far as the extent of the material
damage they had sustained was concerned, and added a claim for
compensation to the proceedings.
Ms
Justína Lacková specified the damage she stated she had
sustained and for which she was seeking compensation.
Ms
RuZena Kokyová, HB, Ms Zaneta Kokyová, Mr Milan BaláZ,
Ms Renáta Kokyová and Ms Renáta Čonková
completed their respective depositions of 13 and 20 March 2002 and
declared that they had no compensation claim to join to the
proceedings, as they themselves had not sustained any material
damage. Ms Renáta Kokyová added that compensation for
any damage sustained by their family would be claimed by her husband.
Mr
Rastislav Koky and Mr Martin Kočko completed their respective
depositions of 12 March 2002 in that they specified that, as a result
of the injuries sustained in the attack, Mr Rastislav Koky had been
incapable of work for fourteen days, from 28 February to 14 March
2002, and Mr Martin Kočko was still unable to work.
At
8 a.m. on 10 April 2002 the DPI started interviewing applicant Mr Ján
Koky Jr, who completed his depositions of 1 March 2002 in so far as
the extent of the material damage he had sustained was concerned, and
added a claim for compensation to the proceedings.
8. Further investigative actions
Without
providing any details the Government submitted that “[the
authorities] had requested records of incoming and outgoing
communication to and from mobile phones of [I.S.], [M.S.], [P.S.] and
[E.N.]”.
9. Identity exercise on 10 April 2002
On
10 April 2002 the DPI held an identity exercise, in the course of
which the participants were to identify presumed perpetrators from
photographs in albums. It produced the following results:
- applicant
Mr Ján Koky identified one person, with a subjectively
perceived probability of seventy to eighty percent, as one of the
people who had been attacking him in his house;
- applicant
Mr Martin Kočko recognised one individual, who had been present
at the pub during the argument, but had not been among those who had
beaten him. He also identified one individual who had been among
those who had beaten him, of which he was sixty percent sure.
- applicant
Ms Zaneta Kokyová identified one individual, with
a subjectively perceived probability of fifteen to twenty
percent, as an intruder in their house and an attacker of her
father;
- applicant
Mr Rastislav Koky recognised two individuals who had been present at
the pub during the argument but had not been among those who had
beaten him. He also identified one individual who had been present at
the settlement during the attack but was not sure whether that
individual had beaten him; and
- applicants
Mr Milan BaláZ, Ms Renáta Kokyová and Mr Ján
Koky Jr. did not identify anyone.
In
what may appear to be a follow-up to the identity exercise, on
19 April 2002, the DPI requested the Police Institute of
Forensic Analysis to examine buccal mucus samples of three
individuals, B.B., V.P. and E.K. and to compare biological material
thus obtained with other biological evidence taken from the scene of
crime.
10. Conclusion of the first investigation
On
26 April 2002 the DPI suspended the above-mentioned criminal
investigations. The decision stated that the police had taken several
investigative measures and had carried out a search with a view to
establishing the identity of the perpetrators of the assault of
28 February 2002. Until then, however, no evidence could be
established which would have made it possible to bring charges
against a specific person.
The
decision of 26 April 2002 also stated that it was established that
the incident at the Roma settlement “had been preceded by an
assault on a waitress, I.S., by a Roma, M.K., and subsequent
damage to the property of the family of I.S. by a hitherto
unidentified Roma and so the actions of the unidentified perpetrators
[could] not be considered or qualified as a criminal offence
with a racial motive, because it [had come] down only to an act of
retribution”.
As
to the injuries sustained by applicants Mr Rastislav Koky and
Mr Martin Kočko, the decision refers to the decision of 1
March 2002 and its contents (see paragraph 36 above).
D. Second investigation into the incidents of 28
February 2002
1. Opening of the second investigation and initial
steps taken
On
3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged
an interlocutory appeal (sťaZnosť) against the
decision to suspend the investigation. Referring to the facts of the
case, they submitted that the assault had been racially motivated and
that it had been organised by people who were close to the family of
the waitress concerned. Citing, inter alia, Articles 5 and 13
of the Convention, they sought resumption of the investigation.
On
the same day, namely 3 May 2002, the Poprad District Prosecutor
(Okresná prokuratúra) (“the District
Prosecutor”) issued a written instruction to the DPI
specifying the measures to be taken and lines of inquiry to be
pursued in order to establish the identity of the perpetrators and
highlight the alleged racial motive.
Still
on 3 May 2002, the DPI took a decision to resume the investigation.
That decision contains a summary of the previous procedural
developments, followed by a plain statement, without further
elucidation, that “during further investigation it [had been]
established that a racially motivated criminal offence [was]
implicated and therefore it [was] necessary to take further
investigative steps and resume the investigation ...”.
On
14 May 2002 the Police Forensic Analysis Institute filed a report
with the DPI concluding that, having examined the biological material
of B.B., V.P. and E.K. (see paragraph 70 above) and having compared
it with the material taken from the crime scene, no link could be
established.
2. Interviews of 20 and 21 May 2002
In
the morning of 20 May 2002, at 8.40, 8.50, 9 and 9.15 respectively,
the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N.
They completed their respective submissions of 14 March, 19 March,
17 April and 3 May 2002 and agreed to provide buccal mucus samples
for the purposes of DNA testing and comparison with the biological
material taken from the crime scene.
On
21 May 2002 at 8 am the DPI commenced interviewing M.L., who gave an
account of his arrival in the village and at the bar and also of his
perception of the incident at the house of I.S. He stated that he had
not been at the Roma settlement.
The
following day the DPI again requested the Police Forensic Analysis
Institute to analyse and compare biological material obtained from
the three sons of I.S., M.N. and M.L. with the material taken from
the scene of crime.
3. Decision on the first interlocutory appeal
On
22 May 2002 the District Prosecutor declared the interlocutory appeal
of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002
(see paragraph 74 above) inadmissible, replying on Articles 43, 124 §
1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as
victims of the alleged offences the appellants had no standing
to challenge the decision in question.
In
its concluding part, which under the applicable procedural rules (see
paragraph 125 below) contains information concerning available
remedies, the decision provided that: “An interlocutory appeal
against this decision is not permissible.”
However,
in a letter of the same date, namely 22 May 2002, the District
Prosecutor informed the applicants that she had reviewed the matter
on her own authority, that on 3 May 2002 (see paragraph 75 above) she
had quashed the decision, and that she had instructed the DPI
to carry on the investigation so as to clarify the events
without leaving any doubt as to the identity and motive of the
alleged perpetrators.
4. Investigative actions taken between 23 May and 18
June 2002
At
8 a.m. on 23 May 2002 the DPI commenced interviewing E.K. During the
morning of 4 June 2002 they interviewed R.S. (at 8.30), I.K. (8.45),
J.H. (9.00) and M.K. (9.10). On 6, 7 and 18 June 2002 respectively
the DPI interviewed J.K. (at 10 a.m.), P.P. (at 10 a.m.) and B.P.
(before 9 a.m.).
They
all had either already provided or agreed to provide buccal mucus
samples for the purposes of DNA testing and comparison with the
biological material taken from the scene of crime.
In
addition, E.K. submitted that he had not been at the Roma settlement
and that he had no explanation of how he could have been identified
as someone involved in the attack.
R.S.
acknowledged having been at the bar with B.P. and J.K. (see
paragraphs 91 and 93 below) during the incident, which however he had
not seen, and he had no information concerning the event
investigated.
I.K.
stated that he had no knowledge of the incident, of which he had
learned from the media, and that he had not been at the Roma
settlement.
J.H.
had been away on a skiing trip from 28 February until 1 March 2002.
M.K.
had been away on business in the week in question and had only
returned on 1 March 2002.
J.K.
had been at the bar during the incident, but had not witnessed it
directly. He had not been at the Roma settlement and had no knowledge
of who had been there.
P.P.
acknowledged knowing M.S. However, he had not been at the Roma
settlement, remembered nothing useful and had no explanation of why
one of the victims had identified him as someone involved in the
attack which took place in their house.
B.P.
acknowledged having been at the bar with R.S. and J.K. (see
paragraphs 87 above and 91 above), but he had not directly witnessed
the incident. He had not been at the Roma settlement, nor did he have
any knowledge of anyone who had been there.
On
18 June 2002 the Police Forensic Analysis Institute reported to the
DPI that, having examined the biological samples taken from F.S.,
P.S., M.S., M.N. and M.L. (see paragraph 80 above) and having
compared it with the material taken from the scene of crime, no link
could be established.
5. Conclusion of the second investigation
On
26 June 2002 the DPI again suspended the investigation, relying on
Article 173 § 1 (e) of the CCP, and referring to similar
considerations to those in the decision of 26 April 2002. It
summarised previous procedural developments and observed that,
despite additional information taken from H.B., T.K., M.K. and
applicants Mr Ján Koky, Mr Martin Kočko, Ms Zaneta
Kokyová, Mr Milan BaláZ, Mr Rastislav Koky, Ms RuZena
Koky and Mr Ján Koky Jr., it had not been possible to
establish any evidence allowing charges to be brought against any
specific person. However, it was considered established that the
attack at the Roma settlement had been preceded by the incident at
the bar and had been followed by the attack at the house of the
family of Ms I.S.
6. Interlocutory appeal and submission to the
Prosecutor General
On
3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky
lodged an interlocutory appeal against the decision of 26 June
2002, requesting that the criminal proceedings be resumed with a view
to establishing the relevant facts of the case.
The
appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1
of Protocol No. 1 and 15 and 21 of the Constitution and referred to
the results of the identity exercise on 10 April 2002. In particular,
they emphasised that, on that occasion, applicant Mr Martin Kočko
had recognised one person; applicant Mr Rastislav Koky had recognised
F.S. and submitted that the organisation of the attack had had
a connection with the family of I.S.; and applicants Mr Ján
Koky and Ms Zaneta Kokyová had recognised one person each.
On
11 July 2002 the applicants’ representative wrote to the
Prosecutor General to inform him that they had lodged an
interlocutory appeal against the decision of 26 June 2002 with the
District Prosecutor and that they suspected that the investigation
had been tampered with in order to downplay the racial motive
for the assault. He requested that the applicants be informed of the
Prosecutor General’s office’s actions in the matter.
The
applicants have not received any answer to their letter of
11 July 2002, and it appears that it has not given rise to
any specific action or decision. According to an official statement
of the Office of the Prosecutor General the letter is not a part of
their case file.
On
17 July 2002 the District Prosecutor declared the interlocutory
appeal inadmissible on similar grounds to those in the decision of
22 May 2002, relying on Articles 43, 142 § 1 a 173 of
the CCP.
The
decision contains information as to the available remedies, to the
effect that: “An interlocutory appeal against this decision is
not permissible.”
Nevertheless,
the District Prosecutor reviewed the decision on her own initiative
and, by a letter of the same day, namely 17 July 2002, informed the
appellants that the DPI had taken all the actions necessary to carry
out a successful prosecution.
According
to the letter, it was true that applicant Mr Rastislav Koky had
recognised P.S., F.S. and M.N., but he had submitted either that they
had not beaten him or that he was not sure whether they had beaten
him. Applicant Mr Ján Koky had recognised F.S. and had
submitted that it was the latter who had beaten him in his house.
This submission however contradicted a previous submission by
applicant Mr Ján Koky (see paragraph 32 above) to the effect
that, of the five attackers in his house, four were wearing
balaclavas and one, whom he did not know, was not. It was also
observed that Ms Zaneta Kokyová had not recognised any of the
attackers.
The
letter further states that additional action had been taken with
a view to identifying those responsible, such as a comparison of
the traces found at the scene of the incident with buccal mucus
samples from the suspects, but the available evidence did not permit
the bringing of charges against any particular person.
7. Further investigative steps
Meanwhile,
on 11 July 2002 and again on 19 August and 8 November 2002, the
DPI interviewed seven other individuals. These interviews however
produced no useful new information.
On
an unspecified date, in response to a request of 20 August 2002, the
Police Institute of Forensic Analysis reported to the DPI that,
having examined buccal mucus samples from P.G., M.S. and M.A. and
compared it with the biological material taken from the scene of
crime, no link could be established.
On
13 January 2003, in response to a request, the DPI reported to the
District Prosecutor that hitherto “no perpetrator had been
identified and that tasks were continuously being carried out under
an integrated investigation plan”.
No
information has been made available in respect of any further
investigative actions and their outcome.
E. Constitutional complaint
On
17 September 2002 all ten applicants lodged a complaint with the
Constitutional Court under Article 127 of the Constitution.
Represented by a lawyer, they contended that the events of 28
February 2002 had not been sufficiently thoroughly and efficiently
investigated to ensure that those responsible were identified and
punished. In particular, they submitted that the authorities had
failed to draw adequate conclusions from the oral evidence and from
the information concerning the identity of the alleged perpetrators,
as obtained from the identity exercise of 10 April 2002. In addition,
the authorities should have taken and assessed further evidence, such
as records of mobile telephone communications between those involved,
but had not done so. The applicants also contended that the assault
had not been motivated by revenge but was racially motivated, to
which the authorities had failed to pay adequate attention.
In
the text of their complaint the applicants made reference to Article
1 § 2 of the Constitution (Constitutional Law no. 460/1992
Coll., as amended), in conjunction with a principle of “general
acceptance and observance of human rights and basic freedoms for
everybody”, Articles 5 § 1 and 13 of the Convention
and the Court’s judgment in the case of Aksoy v. Turkey
(18 December 1996, Reports of Judgments and Decisions 1996 VI).
In
the standardised prescribed form containing a summary of their claim,
the applicants applied for a ruling declaring a violation of their
right to an effective remedy under Article 13 of the Convention and
to judicial and other legal protection under Article 46 § 1 of
the Constitution by actions of the DPI in the investigation referred
to above.
On
23 October 2002 the Constitutional Court declared the complaint
inadmissible on the ground that the applicants had failed to exhaust
all remedies as required by section 53(1) of the Constitutional Court
Act (Law no. 38/1993 Coll., as amended).
In
particular, the Constitutional Court held that it had been open to
the applicants to ask the Public Prosecution Service (“the
PPS”), under Articles 167 and 174 § 2 (a) and (c) of the
CCP, to instruct the DPI to proceed with the case. Had such a
request been dismissed, the applicants could have used further
remedies available to them under sections 31 et seq. of the
PPS Act.
No
appeal against the decision of the Constitutional Court was
available.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
Article
1 § 2 provides that:
“The Slovak Republic acknowledges and adheres to
general rules of international law, international treaties by which
it is bound, and its other international obligations.”
In
so far as relevant, Article 15 stipulates that:
“1. Everyone has the right to life.
[...]
2. No one shall be deprived of life.
...
3. No infringement of rights according to
this Article shall occur if a person has been deprived of life in
connection with an action not defined as unlawful under the law.”
Article
21 § 1 provides that:
“The home shall be inviolable. Entry without the
consent of the person living there is not permitted.”
Article
46 § 1 of the Constitution reads as follows:
“Everyone may claim his or her right by procedures
laid down by an act of parliament before an independent and impartial
court of law or, in cases provided for by an act of parliament,
before another organ of the Slovak Republic.”
Pursuant
to Article 127:
“1. The Constitutional Court shall
decide complaints by natural or legal persons alleging a violation of
their fundamental rights or freedoms ... 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 a 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
that 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
a person whose rights under paragraph 1 have been violated.”
B. The Constitutional Court Act
Article
31a reads as follows:
“Unless this Act provides otherwise or it is
excluded by the nature of the matter, the proceedings before the
Constitutional Court shall be subject to application mutatis
mutandis of the provisions of the Code of Civil Procedure and the
Code of Criminal Procedure.”
Under
the relevant part of section 53(1) and (2):
“1. A[n] [individual] complaint is not
admissible if the complainant has not exhausted legal remedies or
other legal means, which a statute effectively provides to [the
complainant] with a view to protecting [the complainant’s]
fundamental rights or freedoms, and which the complainant is entitled
to use under special statute [such as the Civil Procedure Code and
the Administrative Procedure Code].
2. The Constitutional Court shall not declare
a[n] [individual] complaint inadmissible even if the condition under
paragraph 1 has not been fulfilled, if the complainant establishes
that [the complainant] has not fulfilled this condition due to
reasons worthy of particular consideration.”
C. Code of Criminal Procedure (as in force at the
relevant time)
The
purpose of the CCP is defined in its Article 1 § 1 as follows:
“The purpose of the [CCP] is to regulate actions
of the agencies involved in criminal proceedings with a view to
establishing properly whether criminal offences have been committed
and to punishing perpetrators lawfully and justly. The proceedings
must work for reinforcement of compliance with the law, for
prevention and obstruction of crime, [and] for the education of
citizens in the spirit of consistent compliance with the law and
rules of civic coexistence, as well as honest fulfilment of duties
towards the State and the society.”
The
fundamental principles of criminal proceedings are laid down in
Article 2, the relevant parts of paragraphs 3 and 5 of which provide:
“3. The prosecutor is duty bound to
prosecute all criminal offences of which [he or she] has been
apprised; any exception is permissible only under statue or
a promulgated international treaty.
5. The agencies involved in criminal
proceedings shall proceed so that the facts of the matter are duly
established, to the extent which is absolutely necessary for their
decision. With equal care, they shall elucidate circumstances both
against and in favour of the charged person and, in both respects,
they shall take and examine evidence without awaiting the parties’
proposals....”
The
role of victims of crimes in criminal proceedings is defined in
section (Oddiel) five of chapter (Hlava) two in part
(Časť) one. The relevant part of its Article 43 §
1 provides as follows:
“1. A victim is a person upon whom a
criminal offence has inflicted health damage, property damage,
non-pecuniary damage or other damage or it has violated or
jeopardised [his or her] rights or freedoms protected by law. A
victim has... the right to lodge [in the proceedings] [his or her]
claim for damages; to propose that evidence be taken, examined and
completed; to take part in the hearing,...; to comment on the
evidence taken and examined...; and to make use of legal remedies to
the extent defined by the CCP...
2. A victim who has a lawful claim against a
person facing charges for compensation in respect of damage inflicted
[on the victim] by a criminal offence, shall be entitled to propose
that, in a judgment leading to conviction, the court should impose a
duty on the accused to compensate for that damage. The proposal shall
be made at the latest during the main court hearing before the
presentation of evidence. The proposal has to be clear as to the
ground and the amount of damages claimed.”
Section
3 of Chapter 3 in Part 1 contains rules concerning the making of and
dealing with applications, the relevant part of its Article 59
§ 1 providing that:
“An application shall be assessed according to its
content, irrespective of whether it is incorrectly named.”
Section
2 of Chapter 6 in Part 1 lays down rules concerning decisions
(uznesenie), paragraph 134, the relevant part of which is
cited below, defining the attributes, structure and content of a
decision:
“1. A decision must contain...
e) information about available remedies.”
Chapter
7 in Part 1 regulates interlocutory appeals against decisions, their
admissibility being defined in Article 141, the relevant part of
which provides:
“1. A remedy in respect of decisions
consists of an interlocutory appeal.
2. An interlocutory appeal shall be available
against any decision of an investigator or a police authority except
for a decision on the opening of a criminal prosecution
(Article 160). A decision by a court or by a prosecutor may be
challenged by an interlocutory appeal only in those instances
where the statute expressly so provides and if [a matter] is being
decided on at first instance.”
Article
142 contains locus standi for such appeals, as follows:
“1. Unless provided for otherwise by a
statute, an interlocutory appeal may be lodged by a person who
is directly affected by the [impugned] decision or who has prompted
the decision by a request which [the appellant] was entitled to make
by law....”
Section
2 of Chapter 10 in Part 2 regulates investigations, Article 167
providing for the possibility of having an investigator’s
actions reviewed, in the following terms:
“The person facing charges and the victim shall
have the right at any time in the course of the investigation to
demand that a prosecutor [ensure] that delays in the investigation or
shortcomings on the part of the investigator be eliminated. The right
to make such a demand shall not be restricted by any time-limit. This
demand, which must be submitted to the prosecutor at once, must be
dealt with by the prosecutor without delay. The outcome of the review
must be notified to the person making the demand.”
Section
4 of Chapter 10 in Part 2 deals with decisions at the preliminary
stage of the proceedings, the relevant part of Article 173 providing
that:
“1. An investigator shall suspend
criminal proceedings...
(e) if it has been impossible to identify evidence
allowing for the prosecution of a particular person...
3. Prior to suspending criminal proceedings
everything needs to be done which is necessary for securing a
successful completion of a criminal prosecution. Should there no
longer be any reason for the suspension, the criminal proceedings
shall be resumed.”
Section
5 of Chapter 10 in Part 2 regulates the prosecutor’s
supervision of adherence to lawfulness in pre-trial proceedings, the
relevant part of Article 174 providing that:
“1. Supervision of lawfulness in
pre-trial proceedings shall be carried out by the prosecutor.
2. While carrying out this supervision, the
prosecutor shall have the power:
(a) to give binding instructions for the
investigation of criminal offences...
(c) to take part in activities carried out by an
investigator or a police authority or directly to take a particular
action, to carry out the entire investigation and to take a decision
on any matter whereby the provisions of [the CCP] normally applicable
to an investigator shall apply to the prosecutor mutatis
mutandis and, as a decision of an investigator, the decision
by the prosecutor shall be challengeable by an interlocutory
appeal.”
D. Public Prosecution Service Act (as in force at the
relevant time)
The
Act entered into force on 1 May 2001, replacing previous legislation
(Law no. 314/1996 Coll., as amended). The object of the Act is
defined in its section 1, which reads as follows:
“1. This Act determines the status and
jurisdiction of the Public Prosecution Service, the status and
jurisdiction of the Prosecutor General, the status of other
prosecutors, organisation and administration of the Public
Prosecution Service.
2. The status of prosecutors; their rights
and obligations; the establishment, modification and termination of
[their] service relationship and the claims ensuing from it; the
relationships of responsibility; disciplinary proceedings and
self governance of prosecutors shall be subject to a special
statute.”
Petitions
to the PPS are regulated by Part (Časť) four of the
Act. Pursuant to the relevant part of its section 31:
“1. A prosecutor may examine the
lawfulness of actions and decisions of bodies of public
administration, prosecutors, investigators, police authorities and
courts in so far as a statute so provides, including upon a petition,
and is entitled to take measures to rectify established
violations, provided [such measures] do not fall under a special
statute within the exclusive jurisdiction of other bodies.
2. A petition is understood as a written or
oral demand, proposal or other submission by an individual or a legal
entity, which is aimed at a prosecutor taking a measure within
[the prosecutor’s] jurisdiction, in particular lodging an
application for proceedings to commence before a court, or submitting
a remedy, joining existing proceedings, or taking other measures for
rectification of a violation of the law, which fall within [the
prosecutor’s] jurisdiction.”
The
relevant part of section 33 provides that:
“1. A prosecutor is duty bound to
process a petition within two months of its introduction...
2. A prosecutor shall notify a
petitioner within the period specified in subsection 1 of the manner
in which the petition has been resolved. [...]”
Section
34 deals with repeated petitions and further repeated petitions. Its
relevant part reads as follows:
“1. A petitioner may demand a review of
the lawfulness of how the petition has been resolved by means of a
repeated petition, which shall be dealt with by a prosecutor at
a higher level.
2. A further repeated petition shall be dealt
with by a prosecutor at a higher level only if it contains new
information. A further repeated petition is understood to be a third
and any further consecutive petition, in which the petitioner
expresses discontent with the manner in which [his or her] petitions
in the same matter have been resolved.”
Under
the relevant part of section 35:
“1. In dealing with a petition, a
prosecutor is duty bound to examine all circumstances decisive for
the assessment of whether there has been a violation of the law;
whether the conditions are fulfilled for lodging an application for
proceedings before a court to commence or for submitting a remedy; or
whether [the prosecutor] may join existing proceedings before a court
or take other measures which [the prosecutor] is entitled to take
under [the Public Prosecution Service Act].”
2. The prosecutor assesses the petition
according to its content...
3. If the prosecutor establishes that a
petition is well founded, [he or she] shall take measures for
rectification of the violation of law pursuant to [the Public
Prosecution Service Act] or a special statute.”
E. Constitutional Court practice
In
a decision of 13 December 2001 (in case no. III. ÚS 123/01)
the Constitutional Court declared inadmissible a submission, in which
an individual had complained that criminal proceedings against
him had been too lengthy and that they, as well as a warrant for his
arrest, had been unjustified.
In
rejecting the claim, the Constitutional Court held that, in respect
of the criminal proceedings as such, it was for the applicant first
to seek redress from the investigator or the supervising prosecutor
by the means available under the CCP and, as the case might be, also
from a higher level of the PPS by means available under the PPS Act.
As to the arrest warrant, it was for the applicant to assert his
rights before the ordinary courts.
In
a decision of 20 November 2002 (in case no. I. ÚS 143/02) the
Constitutional Court declared inadmissible a complaint under Article
127 of the Constitution, in which an individual had contested
the way the PPS had handled his complaint concerning interference
with his correspondence by prison authorities.
In
rejecting the complaint, the Constitutional Court held that, by
virtue of the rule of exhaustion of remedies, it was for the
complainant, prior to claiming protection from the Constitutional
Court, first to seek it from a higher level of the PPS by means
of a repeated petition under section 34(1) of the Public Prosecution
Service Act.
In
a decision of 2 July 2003 (in case no. III. ÚS 155/03) the
Constitutional Court declared inadmissible a complaint under Article
127 of the Constitution in which an individual had contested a
decision of the PPS quashing a previous decision of an investigator
to restore to the applicant cash and objects retained in the context
of criminal proceedings against him.
In
rejecting the complaint, the Constitutional Court held that, by
virtue of the rule of exhaustion of remedies, it was for the
complainant, prior to claiming protection from the Constitutional
Court, first to seek it from a higher level of the PPS by means
of a petition under section 31 of the PPS Act, irrespective of the
fact that the decision was not subject to appeal under the CCP.
In
a decision of 28 April 2004 (in case no. III. ÚS 127/04) the
Constitutional Court declared inadmissible a complaint under Article
127 of the Constitution, in which an individual had contested a
decision by the PPS to reject an interlocutory appeal by the
complainant against a decision of a lower level of the PPS to
discontinue proceedings in the complainant’s criminal complaint
concerning an alleged violation of the privacy of a home. In
that case, the interlocutory appeal had been rejected because, being
in the procedural position of a victim, the complainant had no
standing to appeal.
In
rejecting the complaint, the Constitutional Court held that, by
virtue of the rule of exhaustion of remedies, it was for the
complainant, prior to claiming protection from the Constitutional
Court, first to seek a review of the decision at the highest level of
the PPS, that is to say the Prosecutor General, under sections 31 to
36 of the PPS Act.
At
the same time, the Constitutional Court observed that no grounds had
been established for exempting the complainant from the obligation to
use that remedy.
The
principles stemming from the Constitutional Court’s decisions
mentioned above were applied mutatis mutandis in the
Constitutional Court’s subsequent decisions of 26 May 2004 (in
case no. IV. ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS
126/07).
Meanwhile,
on 7 July 2006 (in case no. II. ÚS 223/06), the Constitutional
Court declared inadmissible a complaint under Article 127 of the
Constitution of 14 June 2006, in which a group of individuals had
contested the outcome of the proceedings concerning their criminal
complaint of an alleged abuse of official authority in connection
with the termination of their service in the police.
The
Constitutional Court observed that the complainants’ criminal
complaint had been rejected on 21 July 2005 and that their
interlocutory appeal to the PPS had been dismissed on 29 September
2005.
The
Constitutional Court found that, as the constitutional complaint had
been lodged on 14 July 2006, it had clearly been lodged outside the
statutory two-month time-limit for lodging such a complaint.
The
Constitutional Court held that the position had not been altered by
the subsequent decisions at a higher level of the PPS to dismiss the
complainants’ petition and repeated petition for re examination
of the lawfulness of the decision of 29 September 2005.
In
reaching that conclusion, the Constitutional Court observed that the
complainants’ petition and repeated petition had been aimed at
having a complaint in the interest of law (sťaZnosť
pre porušenie zákona) lodged by the Prosecutor
General on their behalf, which was however an extraordinary remedy,
and a negative decision: accordingly it did not restart the running
of the two-month time-limit.
F. Criminal Code (as in force at the relevant time)
The
offence of violence against a group of citizens and against
an individual is defined in Article 196, the relevant part of
which reads as follows:
“1. He who threatens a group of
citizens with killing, causing bodily harm or causing damage on a
large scale (škoda veľkého rozsahu) shall
be punished by imprisonment for up to one year.
2. He who perpetrates violence against a
group of citizens or an individual or threatens them with death,
causing bodily harm or causing damage on a large scale on account of
political belief, nationality, race, affiliation to an ethnic group,
religion or because they are without religion, shall be punished by
imprisonment for up to two years.”
The
offence of causing bodily harm is defined in Article 221, the
relevant part of which provides that:
“1. He who intentionally causes bodily
harm to another’s health shall be punished by imprisonment for
up to two years or by a financial penalty.”
Article
238 defines the offence of violating the privacy of a home, its
relevant part reading as follows:
“1. He who enters a house or a flat of
another without authority to do so or remains there unauthorised
shall be punished by imprisonment for up to two years or by
a financial penalty...
3. The perpetrator who, in committing the act
referred to in section 1, applies violence or a threat of immediate
violence and commits such an act with a weapon or with at least two
others shall be punished by imprisonment for between one year and
five years.
The
offence of criminal damage is defined in Article 257, the relevant
part of which provides that:
“1. He who destroys, damages or makes
unusable something belonging to someone else and thereby causes a
non-negligible damage (škoda nie nepatrná) to
someone else’s property shall be punished by imprisonment for
up to one year or interdiction of an activity or a financial penalty
or forfeiture of an item of property.”
III. RELEVANT INTERNATIONAL PRACTICE
A. The Committee on the Elimination of Racial
Discrimination
1. Anna Koptova v. Slovak Republic, Communication No.
13/1998, U.N. Doc. CERD/C/57/D/13/1998 (2000).
The
communication was considered by the Committee in an Opinion
adopted at its meeting on 8 August 2000.
The
case concerned difficulties that the petitioner and several other
families, being of Roma ethnic origin, had been experiencing with
settling down and establishing a home and, in particular, two
municipal resolutions forbidding the families in question from
settling in the villages concerned and threatening them with
expulsion.
The
petitioner unsuccessfully complained about the municipal resolutions
before the Constitutional Court and a criminal investigation into the
matter was suspended, by a decision of the PPS.
In
defending the case, the State party concerned argued, inter alia,
that the petitioner had the opportunity to contest the decision to
suspend the investigation under the PPS Act of 1996 (see paragraph
131 above) and to assert her rights by way of an action for
protection of her personal integrity under Articles 11 et seq. of the
Civil Code (see paragraphs 4.4 and 4.6 of the Opinion).
The
Committee, however, “did not share the State party’s view
that domestic remedies had not been exhausted and considered that
neither a new petition to the Constitutional Court nor a civil
action would be effective remedies in the circumstances of the
case” (see paragraph 6.4 of the Opinion).
2. Miroslav Lacko v. Slovak Republic, Communication No.
11/1998, U.N. Doc. CERD/C/59/D/11/1998 (2001)
The
communication was considered by the Committee in an Opinion
adopted at its meeting on 9 August 2001.
The
case concerned a Slovak national, who had been refused service in a
restaurant and was told to leave on account of his Roma ethnic
origin, and an alleged failure by the State party to sanction or
remedy this treatment. Following investigation upon the petitioner’s
criminal complaint in that respect, the police found that there was
no evidence that any criminal offence had been committed. Upon the
petitioner’s appeal to the PPS, the decision was upheld.
In
defending the case, the State party concerned argued, inter alia,
that the petitioner had the opportunity to seek a review of the
lawfulness of the position taken by the public prosecution service at
a higher level in that body under the PPS Act of 1996 (see paragraph
131 above) and of asserting his rights by way of an action for
protection of his personal integrity under Articles 11 et seq. of the
Civil Code (see paragraphs 4.1 and 4.2 of the Opinion).
In
response, the Committee observed that Article 14 § 7 (a) of the
International Convention on the Elimination of All Forms of Racial
Discrimination provides that the Committee is not to consider
any communication unless it has ascertained that all available
domestic remedies have been exhausted and that it has held in its
previous jurisprudence that a petitioner is only required to exhaust
remedies that are effective in the circumstances of the particular
case (see paragraph 6.2 of the Opinion).
Furthermore,
the Committee noted that “the decision of the [PPS] was a final
decision as far as the criminal procedure was concerned. The State
party [had] failed to demonstrate that a petition for review, which
would be a remedy against the legality of the decision, could in the
present case [have] [led] to a new examination of the complaint”.
Furthermore, the Committee found that “the facts of the claim
were of such a nature that only criminal remedies could constitute
an adequate avenue of redress. The objectives pursued through a
criminal investigation could not be achieved by means of civil or
administrative remedies of the kind proposed by the State party”.
Therefore, the Committee found that “no other effective
remedies were available to the petitioner” (see paragraph 6.3
of the Opinion).
B. The Committee against torture
Henri Unai Parot v. Spain, Communication No. 6/1990, U.N. Doc.
A/50/44 at 62 (1995)
The
communication was considered by the Committee at its meeting on 2 May
1995. Among the views it adopted, in the relevant part of their
paragraph 6.1, dealing with the requirement of exhaustion of domestic
remedies, the Committee:
“considered that, even if these attempts to engage
available domestic remedies may not have complied with procedural
formalities prescribed by law, they left no doubt as to [the alleged
victim’s] wish to have the allegations investigated. The
Committee concluded that, in the circumstances, it was not barred
from considering the communication.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
The
Government objected that the applicants had failed to comply with the
requirement of exhaustion of domestic remedies under Article 35 § 1
of the Convention in that they should have, but had not, asserted
their Convention rights by way of threefold remedies, which are dealt
with below in turn.
A. CCP and PPS Act
1. The Government
In
their observations on the admissibility and merits of the
application, the Government contended that the applicants, Mr Martin
Kočko, Ms Zaneta Kokyová, Mr Milan BaláZ, Ms
Renáta Kokyová, Ms RuZena Kokyová, Ms Renáta
Čonková, Ms Justina Lacková and Mr Ján Koky
Jr. had not sought review of the actions of the DPI by the PPS under
Article 167 of the CCP. Should they have been unsuccessful with
asserting their rights by means of such a review, it was open to them
further to seek review of the lawfulness of the actions of the DPI
and even of the PPS by way of a petition and, as the case may
be, a renewed petition to higher levels of the PPS under sections 31
et seq. of the PPS Act.
As
regards applicants Mr Ján Koky and Mr Rastislav Koky, the
Government submitted that, although the District Prosecutor had
declared their interlocutory appeals against the DPI’s
decisions to suspend the investigation inadmissible, the District
Prosecutor had actually examined the decisions, quashing the former
and remedying the situation.
As
in their original observations, in their further observations on the
merits the Government relied on the decision of the Constitutional
Court of 23 October 2002.
In
the latter observations, the Government submitted that none of the
applicants had availed themselves of the remedy available to them
under Article 167, in conjunction with Article 174 § 2 (a) and
(c) of the CCP, namely a request to the PPS for review of actions of
the DPI.
As
regards applicants Mr Ján Koky and Mr Rastislav Koky, the
Government pointed out that the District Prosecutor had never made
any pronouncement to the effect that they were not entitled to the
remedies under section 31 et seq. of the PPS Act and that,
quite to the contrary, the District Prosecutor had dealt with their
interlocutory appeals as provided for under section 31 of the PPS
Act. It was nevertheless open to them to pursue their rights
further by means of a renewed petition under section 34 of the
PPS Act.
In
support of the above contentions, the Government relied on the
case-law of the Constitutional Court, as summarised above, and
submitted that none of these remedies had been subject to a
time-limit and that, as the investigation had not been terminated but
only suspended, the remedies were all still at the applicants’
disposal
2. The applicants
The
applicants considered that, in view of the gravity of the case,
rather than dwelling on the procedural intricacies of various
remedial mechanisms, the respondent State should have addressed the
situation proactively and on its own initiative.
The
applicants further submitted that if there were several avenues of
redress at their disposal they should not be required to try
more than one of them.
The
applicants also submitted that, in so far as applicants Mr Ján
Koky and Mr Rastislav Koky were concerned, their interlocutory
appeals under the CCP had been rejected on account of their lack of
standing to appeal, the respective decisions informing them that
no further appeal was available as, indeed, was the case under the
CCP, to disprove which the Government had submitted nothing in terms
of jurisprudence or otherwise.
As
regards the remaining applicants, it was submitted that they were in
an identical position to applicants Mr Ján Koky and Mr
Rastislav Koky and that, accordingly, any remedies on their part
would be bound to meet with the same result as those of Mr Ján
Koky and Mr Rastislav Koky.
In
the applicants’ submission, the Government had failed
to substantiate that, in the circumstances, any further
submission to the PPS had had better prospects of success than those
already made.
In
that context, the applicants pointed out that, at the relevant time,
the PPS Act had been a relatively new piece of legislation with
no existing case-law, to the effect that the remedies referred to by
the Government were to be exhausted prior to the lodging of a
complaint with the Constitutional Court.
The
Constitutional Court’s decision of 20 November 2002 (see
paragraph 137 above) and any of its subsequent decisions in similar
matters, as relied on by the Government, post-dated the applicants’
constitutional complaint and were accordingly not of relevance.
3. The Court’s assessment
The
Court observes that, in its admissibility decision in the present
case, it decided to join to the merits the question of the exhaustion
of domestic remedies under Article 167 of the CCP and section 31 et
seq. of the PPS Act. It will accordingly proceed to
examination of this question, relying on the general principles and
applying them as laid out below under separate headings.
(a) General principles
The
Court reiterates the following general principles, which are of
relevance in this case, as formulated and summarised, for example, in
its judgment in the case of Akdivar and Others v. Turkey ([GC],
16 September 1996, §§ 65 - 69, Reports of
Judgments and Decisions 1996 IV):
- The
rule of exhaustion of domestic remedies obliges those seeking
to bring their case against the State before an international
judicial or arbitral organ to use first the remedies provided by the
national legal system. Consequently, States are dispensed from
answering before an international body for their acts before
they have had an opportunity to put matters right through their
own legal system. The rule is based on the assumption, reflected in
Article 13 of the Convention, with which it has close affinity, that
there is an effective remedy available in respect of the alleged
breach in the domestic system whether or not the provisions of the
Convention are incorporated in national law. In this way, it is an
important aspect of the principle that the machinery of protection
established by the Convention is subsidiary to the national systems
safeguarding human rights.
- Under
this rule, normal recourse should be had by an applicant to remedies
which are available and sufficient to afford redress in respect of
the breaches alleged. The existence of the remedies in question must
be sufficiently certain not only in theory but in practice,
failing which they will lack the requisite accessibility and
effectiveness.
- The
rule also requires that the complaints intended to be made
subsequently at Strasbourg should have been made to the appropriate
domestic body, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law and,
further, that any procedural means that might prevent a breach of the
Convention should have been used.
- However,
as indicated above, there is no obligation to have recourse to
remedies which are inadequate or ineffective. In addition, according
to the “generally recognised rules of international law”
there may be special circumstances which absolve the applicant from
the obligation to exhaust the domestic remedies at his disposal. The
rule is also inapplicable where an administrative practice
consisting of a repetition of acts incompatible with the Convention
and official tolerance by the State authorities has been shown to
exist, and is of such a nature as to make proceedings futile or
ineffective.
- In
the area of the exhaustion of domestic remedies there is
a distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice
at the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant’s
complaints, and offered reasonable prospects of success. However,
once this burden of proof has been satisfied it falls to the
applicant to establish that the remedy advanced by the Government was
in fact exhausted or was for some reason inadequate and ineffective
in the particular circumstances of the case or that there existed
special circumstances absolving him or her from the requirement.
- The
application of the rule must make due allowance for the fact that it
is being applied in the context of machinery for the protection of
human rights that the Contracting Parties have agreed to set up.
Accordingly, it has recognised that it must be applied with some
degree of flexibility and without excessive formalism. It has further
recognised that the rule of exhaustion is neither absolute nor
capable of being applied automatically; in reviewing whether it has
been observed it is essential to have regard to the particular
circumstances of each individual case. This means amongst other
things that it must take realistic account not only of the existence
of formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate, as well as the personal circumstances of the
applicants.
Moreover,
as further formulated and summarised by the Court, for example, in
the case of Mađer v. Croatia (no. 56185/07, §
87, 21 June 2011):
- Where
an applicant has a choice of domestic remedies, it is sufficient
for the purposes of the rule of exhaustion of domestic remedies that
he or she make use of a remedy which is not unreasonable and which is
capable of providing redress for the substance of his or her
Convention complaints.
- Indeed,
where an applicant has a choice of remedies and their comparative
effectiveness is not obvious, the Court interprets the requirement of
exhaustion of domestic remedies in the applicant’s favour.
- Once
the applicant has used such a remedy, he or she cannot also be
required to have tried others that were available but probably no
more likely to be successful.
(b) Application of the general principles in the
present case
As
to the circumstances of the present case, the Court reiterates first
of all that it has been recognised that the Constitutional Court is
the supreme authority for the protection of human rights and
fundamental freedoms in Slovakia, and that it has jurisdiction to
examine individual complaints and to afford complainants redress if
appropriate (see, mutatis mutandis, Lawyer Partners, a.s.
v. Slovakia, nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08,
3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08,
29552/08, 29555/08 and 29557/08, § 45, ECHR 2009-..., with
further references).
The
applicants in the present case resorted to the Constitutional Court
by way of an individual complaint under Article 127 of the
Constitution.
As
regards the scope of their constitutional complaint, the Court
observes that the applicants mainly contended that the events of 28
February 2002 had not been thoroughly and efficiently investigated so
as to ensure that those responsible were identified and punished (see
paragraph 109 above), making reference to Article 1 § 2 of the
Constitution, the principle of “general acceptance and
observance of human rights and basic freedoms for everybody”,
Articles 5 § 1 and 13 of the Convention and the Court’s
judgment in the case of Aksoy v. Turkey (cited above) (see
paragraph 110 above), and in the summary of their claim seeking a
finding of a violation of Article 13 of the Convention and Article 46
§ 1 of the Constitution (see paragraph 111 above).
The
Court is of the view that the scope of the applicants’
constitutional complaint has to be viewed in the context of the
proceedings, in which Articles 5, 6, 8, 13 and 14 of the Convention,
1 of Protocol No. 1 and 15 and 21 of the Constitution were cited (see
paragraph 97 above).
Bearing
in mind that the Convention is intended to guarantee rights that are
not theoretical or illusory, but rights that are practical and
effective (see, for example, Matthews v. the United Kingdom
[GC], no. 24833/94, § 34, ECHR 1999-I), the Court is of the
view that, on the particular facts of the present case, the scope of
the applicants’ constitutional complaint was such as to allow
the Constitutional Court to examine the matters now arising before
the Court.
At
the same time, the Court points out that the circumstances of the
present case differ from those where a particularly strict
interpretation and application by the Constitutional Court of the
formal rules on the scope of the constitutional complaint were held
acceptable in Convention terms in the context of the length of
proceedings (see, for example, Obluk v. Slovakia, no.
69484/01, §§ 48, 51 and 61, 20 June 2006; Šidlová
v. Slovakia, no. 50224/99, § 53, 26 September 2006; Mazurek
v. Slovakia (dec.), no. 16970/05, 3 March 2009; and STARVYS,
s.r.o. v. Slovakia (dec.), no. 38966/03, 30 November 2010).
The
Court however observes that the applicants’ constitutional
complaint was declared inadmissible on 23 October 2002 under section
53(1) of the Constitutional Court Act, on the ground that the
applicants had failed to exhaust ordinary remedies (see paragraph 112
above) under Articles 167 and 174 § 2 (a) and (c) of the CCP and
sections 31 et seq. of PPS Act (see paragraphs 113 above).
To
that end, the Court acknowledges that it is first of all for the
national authorities to devise means and methods of examining
individual complaints so as to render the protection of the
individual rights effective (see Gál v. Slovakia, no.
45426/06, § 65, 30 November 2010, and Michalák v.
Slovakia, no. 30157/03, § 176, 8 February 2011). More
specifically, the Court acknowledges that, in line with the
subsidiary role of its jurisdiction, it is first of all for the
Constitutional Court to interpret and apply the rules on
admissibility of individual complaints before it.
Nevertheless,
it remains the Court’s task to satisfy itself in each
individual case whether the protection of the applicant’s
rights granted by the national authorities is comparable with that
which the Court can provide under the Convention (see, mutatis
mutandis, Bako, cited above; Gál, cited
above, § 66; and Michalák, cited above, §
177). More specifically, the Court considers that, in the
circumstances of the present case, it remains to be ascertained
whether there is anything more for the applicants to do in order to
satisfy the requirement of exhaustion of domestic remedies under
Article 35 § 1 of the Convention.
In
that respect, the Court considers that it is reasonable to assume
that the applicants were victims of criminal offences. In that
capacity, they became involved in criminal proceedings against one or
more persons unknown which, at the given stage, were aimed at
investigating the relevant facts and establishing the identity of the
perpetrators.
The
Court also observes that the procedural framework for those
proceedings and the applicants’ role and legal position as
victims in them were defined by the provisions of the CCP. It was
among other things the purpose of those proceedings to establish the
facts and to identify and punish the perpetrators (see paragraph 21
above). Being considered victims of the alleged offences, the
applicants had an array of procedural rights (see paragraph 123
above) which included, inter alia, that their submissions be
assessed as to content irrespective of their name or form (see
paragraph 124 above) and that the applicants be informed on available
remedies (see paragraph 125 above).
The
Court notes that the orders to suspend the proceedings were taken in
the procedural form of a decision (uznesenie), that they were
then challenged by applicants Mr Ján Koky and Mr Rastislav
Koky by way of an interlocutory appeal to the PPS, and that
these appeals were rejected for the appellants’ lack of
standing to appeal.
At
the same time, the Court notes that the decisions rejecting these
appeals expressly stated that, as indeed appears to be the case under
the relevant provisions of the CCP, no further interlocutory appeal
was permissible and that they contained no instructions about any
other remedy. None the less, the PPS on its own initiative reviewed
the contested situation in the light of the appellants’
arguments, in which ultimately it found no merit.
The
Court also observes that nothing has been proposed by the Government
or established by the Court otherwise to suggest that the
position of the remaining applicants in respect of the remedies used
by applicants Mr Ján Koky and Mr Rastislav Koky was such as to
support a conclusion that the use of these remedies by them had
better chances of success than those of applicants Mr Ján Koky
and Mr Rastislav Koky. The Court accordingly finds no reason for
considering the remaining applicants in relation to the exhaustion
requirement under Article 35 § 1 of the Convention differently
from applicants Mr Ján Koky and Mr Rastislav Koky.
As
to the specific remedies referred to by the Government, that is
to say those under Article 167 of the CCP and sections 31 et
seq. of the PPS Act, the Court observes that there appears to
be a degree of uncertainty as to the functioning of the system in
respect of the various remedies available in the applicants’
situation and their mutual causal and functional relationship.
The
Court notes that this uncertainty has been enhanced by what may
appear to be a certain incongruity in the relevant part of the
Government’s argumentation in their observations on the
admissibility and merits of the case and in their further
observations on its merits.
In
particular, in the former observations, the Government appear not
to have intended to reproach Mr Ján Koky and Mr Rastislav
Koky for not having resorted to the remedy under Article 167 of the
CCP, whereas in their latter observations they may be understood as
arguing that none of the applicants, that is to say including Mr Ján
Koky and Mr Rastislav Koky, have.
The
lack of clarity as to the procedural regime in which the PPS examined
the arguments of applicants Mr Ján Koky and Mr Rastislav Koky,
presented in their inadmissible interlocutory appeals, and any
relationship of causality between their arguments and the
continuation of the investigation under the order of the District
Prosecutor of 3 May 2002, is further enhanced by the fact that the
District Prosecutor’s decision on a written reply to the
interlocutory appeal, which had been lodged on the same day as the
order, was not made until 22 May 2002, which was after the order in
question, and that neither the order nor the decision to resume the
investigation appear to make any reference to the interlocutory
appeal.
However,
judging the submissions of applicants Mr Ján Koky and Mr
Rastislav Koky of 3 May and 3 July 2002 by their content, which the
District Prosecutor appears also to have been duty bound to do, and
having regard to the District Prosecutor’s response to these
submissions as well as the Government’s original observations
on the admissibility and merits of this case, the Court finds that
the applicants cannot be considered as having failed to make use
of the remedy available to them under Article 167 of the CCP.
Turning
to the remedies under sections 31 et seq. of the PPS Act, the Court
considers it of relevance at the outset to evaluate the purpose of
this piece of legislation, which is to determine the status and
jurisdiction of the PPS, the status and jurisdiction of the
Prosecutor General, the status of other prosecutors and organisation
and administration of the PPS (see paragraph 132 above). In other
words, it appears to be primarily a tool of internal organisation of
the PPS, rather of granting and regulating individual rights of
substance or procedure, which in turn appears to be a matter to be
addressed by the relevant procedural codes.
As
to the case-law of the Constitutional Court concerning the
interpretation and application of the exhaustion of ordinary remedies
in respect of the remedies under sections 31 et seq. of the
PPS Act, the Court observes that, except for the Constitutional
Court’s decision of 13 December 2001, all the other
decisions relied on by the Government post-date the applicants’
constitutional complaint.
As
regards the decision of 13 December 2001, which does make
reference to the remedies under sections 31 et seq. of the PPS Act,
the Court considers it noteworthy that this decision was taken in
respect of a legally undefined “motion” in a legal
regime which preceded the current one, in which a complaint under
Article 127 of the Constitution is considered to be an effective
remedy for the purposes of Article 35 § 1 of the Convention, and
which has existed under a constitutional amendment of 2001 with
effect from 1 January 2002 (see Andrášik and Others
v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00,
60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002 IX). In
addition, in the situation complained of by that “motion”,
before bringing an action with the Constitutional Court the
complainant had exhausted no remedies at all. The Court considers
that these differences distinguish the present case from that
examined by the Constitutional Court on 13 December 2001.
The
Court therefore concludes that there was not sufficient support in
the domestic law and practice at the relevant time for the conclusion
that, for the purposes of Article 35 § 1 of the Convention, the
applicants were required to resort to the remedies under sections 31
et seq. of the PPS Act.
Moreover,
and in any event, noting that the applicants in fact did address the
Prosecutor General with a submission clearly aimed at ensuring that
their case was handled with the necessary care and attention, that it
is not disputed that the PPS has received this submission (see
paragraph 99 above), and that nevertheless no attention at all
appears to have been given to it, the Court finally concludes that
there is no scope for rejecting the application under Article 35
§ 1 of the Convention in connection with the remedies under
sections 31 et seq. of the PPS Act.
As
regards the remedies under sections 31 et seq. of the PPS Act, and
whether the present case bears any apparent resemblance to that of
Zubaľ v. Slovakia (no. 44065/06, § 13 and 33, 9
November 2010), the Court points out that they differ in a number of
aspects, including that the proceedings in the present case were
aimed at investigating allegedly unlawful actions by private
individuals and not by agents of the State; that the unlawful actions
investigated in the present case were of a significantly greater
gravity compared to the case of Zubaľ
, the substantive complaint in which concerned solely Article 8 of
the Convention. Further, as observed in the previous paragraph, the
applicants in the present case in fact arguably did raise their
arguments with the PPS prior to the introduction of their
constitutional complaint.
In
reaching the conclusions in paragraphs 192 and 193 above, the Court
has also taken into consideration the applicants’ personal
circumstances, the fact that rights as fundamental as those under
Article 3 of the Convention (see below) are at stake, and that the
Convention is intended to guarantee rights that are not theoretical
or illusory but rights that are practical and effective.
Lastly,
the Court observes that its conclusions in this respect are in
consonance mutatis mutandis with relevant international
jurisprudence as cited above.
The
first limb of the Government’s preliminary objection therefore
cannot be sustained.
B. Protection of personal integrity
In
their observations on the admissibility and merits of the
application, as regards the complaint under Article 14 of the
Convention, the Government contended, in reliance on Article 35 §
1 of the Convention, that the applicants should have asserted their
rights by means of an action for protection of personal integrity
under Articles 11 et seq. of the Civil Code, but had not done so.
The
Court will deal with this matter below together with the merits of
the Article 14 complaint.
C. Other objections
In
their observations on the merits of the case, the Government added
further objections of non exhaustion of domestic remedies. In
particular, they submitted that the scope of the applicants’
complaints to the Court was not identical to those asserted before
the Constitutional Court; that the action for protection of personal
integrity was a remedy to be exhausted in respect of all of
the applicants’ complaints, and that an action against the
State for damages under section 78 of the Police Act (Law no.
171/1993 Coll., as amended) was an effective further remedy at the
applicants’ disposal. In that respect, the Government relied on
the Court’s decision in (see BaláZ and Others v.
Slovakia (dec.), no. 9210/02, 28 November 2006).
The
Court reiterates that, pursuant to Rule 55 of the Rules of Court,
“any plea of inadmissibility must, in so far as its character
and the circumstances permit, be raised by the respondent Contracting
Party in its written or oral observations on the admissibility of the
application submitted as provided in Rule 51 and 54, as the case may
be”.
It
has neither been argued by the Government, nor otherwise established
by the Court that it was not possible for the Government to raise
these new objections at the admissibility stage. They are accordingly
estopped from raising them now (for recapitulation of the applicable
principles see, for example, Mooren v. Germany [GC], no.
11364/03, §§ 57 59, ECHR 2009-...).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
Alleging
that there had been systematic discrimination and racist attacks
against Roma in Slovakia, combined with a general failure of the
State authorities properly to investigate and prosecute such crimes,
the applicants complained that they had been subjected to violence
amounting to torture and inhuman and degrading treatment and that the
Slovakian authorities had failed to carry out a prompt, impartial and
effective official investigation into the case. On that account, the
applicants alleged a violation of Article 3 of the Convention,
which provides that:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Arguments of the parties
The
applicants objected that the DPI had only questioned three of some
thirty suspected perpetrators and that they had only questioned them
once, at the beginning of the investigation. The applicants also
contended that none of the suspects had been re-interviewed after the
identity exercise and despite the information it had established.
Furthermore, the applicants suggested that the DPI had failed to take
any new oral depositions after the second investigation had been
opened pursuant to the District Prosecutor’s instructions.
The
Government responded by pointing out that except for Mr Ján
Koky, Mr Martin Kočko and Mr Rastislav Koky the applicants had
not been exposed to direct physical attack and that it had only been
applicants Mr Martin Kočko and Mr Rastislav Koky who had
sustained any bodily injuries, the actual extent of which was,
however, debatable. They submitted that any mental distress caused to
the remaining applicants and, in particular Ms Renáta Čonková
(see paragraph 34 above) and Ms Justína Lacková (see
paragraph 59 above) had not reached the Article 3 threshold.
Moreover,
and in any event, referring to the facts of the case, the Government
opposed the applicants’ factual assertions, emphasised that the
investigation had been supervised by the PPS and also by the Ministry
of the Interior, and considered that it had been carried out in full
compliance with Convention principles.
As
to the applicants’ specific objections, the Government
submitted that P.S. and M.S. had been repeatedly questioned as
suspects and that a number of investigative actions had been
taken between 3 May and 26 June 2002. Furthermore, the
investigation had not been terminated, but merely stayed, and further
investigative actions had been and still could be taken with a view
to further establishing the relevant facts, even after the second
suspension.
In
so far as any racial motive might have been at the heart of the
incident, the Government considered that the investigation had been
adequately refocused as soon as allegations to that effect surfaced
in the interviews of 20 March 2002. In that context, however, the
Government pointed out that in the applicants’ submissions
immediately after the incident there had been no sign of any racial
slurs on the part of the attackers, in view of which the Government
considered remarkable the applicants’ later detailed accounts
of rather expressive alleged racial affronts.
In
reply, the applicants emphasised the physical injuries sustained by
Mr Martin Kočko and Mr Rastislav Koky and the humiliation, fear,
stress and trauma sustained by all of them. These repercussions had
been aggravated by the presence of women and children at the scene of
the incident and by its blatantly racial and derogatory nature.
Accordingly, in the applicants’ submission, the seriousness of
the treatment to which they had been exposed had reached the
threshold of Article 3 of the Convention.
As
to the investigation itself, the applicants asserted that, although
they had been in a particularity vulnerable position and it had
accordingly been the responsibility of the State authorities to
proceed proactively and on their own initiative, the authorities had
made it necessary for the applicants to press for the
investigation to proceed and that all the authorities had done was
make an inquiry of a purely formal nature.
B. The Court’s assessment
1. General principles
The
Court reiterates that Article 3 of the Convention must be regarded
as one of the most fundamental provisions of the Convention and as
enshrining the core values of the democratic societies making up the
Council of Europe (see Pretty v. the United Kingdom, no.
2346/02, § 49, ECHR 2002-III). In contrast to the other
provisions in the Convention, it is cast in absolute terms, without
exception or proviso, or the possibility of derogation under Article
15 of the Convention (see, inter alia, Chahal v. the United
Kingdom, judgment of 15 November 1996, § 79, Reports of
Judgments and Decisions 1996-V).
The
Court also reiterates that the ill-treatment suffered must attain
a minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum is relative: it depends on
all the circumstances of the case, such as the nature and context of
the treatment, its duration, its physical and mental effects and, in
some instances, the sex, age and state of health of the victim (see
Price v. the United Kingdom, no. 33394/96, § 24, ECHR
2001 VII).
It is further to be reiterated that, in general,
actions incompatible with Article 3 of the Convention primarily incur
the liability of a Contracting State if they were inflicted by
persons holding an official position. However, the absence of any
direct State responsibility for acts of violence that meet the
condition of severity such as to engage Article 3 of the Convention
does not absolve the State from all obligations under this provision.
The obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights
and freedoms defined in the Convention, taken in conjunction with
Article 3, also requires States to take measures designed to ensure
that individuals within their jurisdiction are not subjected to
ill-treatment administered by other private persons (see, for
example, Milanović v. Serbia, no. 44614/07, § 83, 14
December 2010, and Denis Vasilyev v. Russia, no. 32704/04, §
98, 17 December 2009, with further references).
The
Court further reiterates that where an individual raises an arguable
claim that he has been seriously ill-treated in breach of Article 3,
that provision, read in conjunction with Article 1 of the Convention,
requires by implication that there should also be an effective
official investigation capable of leading to the identification and
punishment of those responsible (see Assenov and Others v.
Bulgaria, 28 October 1998, § 102, Reports of
Judgments and Decisions 1998 VIII). A positive obligation of
this sort cannot, in principle, be considered to be limited solely to
cases of ill-treatment by State agents (see M.C. v. Bulgaria,
no. 39272/98, § 151, ECHR 2003 XII, and Šečić
v. Croatia, no. 40116/02, § 53, 31 May 2007).
Even
though the scope of the State’s procedural obligations might
differ between cases where treatment contrary to Article 3 has been
inflicted through the involvement of State agents and cases where
violence is inflicted by private individuals, the requirements as to
an official investigation are similar. For the investigation to be
regarded as “effective”, it should in principle be
capable of leading to the establishment of the facts of the case and
to the identification and punishment of those responsible. This is
not an obligation of result, but one of means. The investigation must
be independent, impartial and subject to public scrutiny and that the
competent authorities must act with diligence. Among other things,
they must have taken the reasonable steps available to them to secure
the evidence concerning the incident, including, inter alia, a
detailed statement concerning the allegations from the alleged
victim, eyewitness testimony, forensic evidence and, where
appropriate, additional medical reports. Any deficiency in the
investigation which undermines its ability to establish the
cause of injuries or the identity of the persons responsible will
risk falling foul of this standard, and a requirement of promptness
and reasonable expedition is implicit in this context (see, for
example, Beganović v. Croatia, no. 46423/06, § 75,
25 June 2009, and Denis Vasilyev, cited above, § 100 with
further references).
2. Application of the general principles to the present
case
(a) Was there ill-treatment within the
meaning of Article 3 of the Convention?
The
Court observes that, in the present case, it has not been disputed
between the parties that a group of persons, some of whom were
wearing balaclavas and armed with baseball bats and iron bars,
entered the settlement where the applicants lived and engaged there
in a disturbance involving direct physical assault on applicants Mr
Ján Koky, Mr Martin Kočko and Mr Rastislav Koky, and
causing bodily harm to the latter two. And neither has it been
disputed that the attackers caused damage to the exterior of houses
nos. 61, 67 and 69, forcibly entered houses nos. 61 and 67, and
inflicted further damage to the furniture and equipment inside the
latter.
Where
however there appears to be a degree of disagreement between the
parties is the number of attackers, the extent and nature of the
injuries to applicants Mr Martin Kočko and Mr Rastislav Koky,
the extent of the damage inflicted upon the applicants’
property, and the racial slurs uttered by the attackers.
The
number of the attackers varies between twelve, as in the official
documentation (see paragraph 11 above), and fifty, as submitted by
one of the witnesses (see paragraph 43 above).
As
regards the injuries suffered by applicant Mr Rastislav Koky, the
applicants’ submission points to a skull fracture, a cut to the
left side of the back of the head, a crushed left arm, pressure
injury to the left side of the back and bruises on the left knee,
which necessitated hospitalisation of ten to fourteen days while the
Government assert that he was hospitalised for no more than three to
four days.
In
the case of applicant Mr Martin Kočko, the applicants’
submission has been that he suffered a scraped elbow with a pressure
injury on the right side, needing recovery time of seven to ten days,
the Government submitting that his injuries did not merit a stay in
hospital.
In
any event, there has not been any dispute that the injuries sustained
by applicants Mr Rastislav Koky and Mr Martin Kočko required
treatment in hospital, where they had to be taken by ambulance.
The
Court considers however that, in the assessment of the gravity of
these injuries and any damage to property from the perspective of the
threshold of Article 3 of the Convention, apart from the damage
itself, regard has to be had to the overall context of the attack.
From
that perspective, the Court observes that the incident took place at
night time and in a Roma settlement, and that it involved a group
of partly armed and masked men who forcibly invaded the applicants’
home and privacy; moreover, damage was caused to the applicants’
property and there was a physical confrontation inside the
applicants’ home as well as outside.
Furthermore,
it has been submitted by the applicants and not rebutted by the
authorities that the incident was marked by verbal threats and
imprecations affronting the applicants’ ethnic dignity.
In
view of the above-mentioned considerations, the Court concludes that
there can be no doubt that the treatment the applicants were exposed
to at the hands of private individuals fell within the purview of
Article 3 of the Convention (see, for example, Beganović,
cited above, § 68).
(b) Was the investigation compatible with
Article 3 of the Convention?
The
Court observes that the investigation under review was twice
suspended, the former suspension being lifted and the latter being
upheld. Investigative actions were thus taken in periods before its
first suspension, between the two suspensions and after the second
suspension. For the sake of clarity, the Court will review these
periods and the investigative actions taken in them below, in turn.
In
the first segment, the police inspected the crime scene and, in
particular, the three houses which had been damaged, the inspection
having produced, inter alia, two biological traces. Applicant
Mr Ján Koky was interviewed three
times, applicant Mr Ján Koky Jr. once and the remaining
applicants twice.
The
DPI also interviewed the waitress I.S., her two sons P.S. and M.S.
and the former’s girlfriend, E.N.
Furthermore,
three witnesses (Z.K., H.B. and J.K.) were interviewed twice and
three others (T.K., M.K. and P.J.) once.
In
addition, an identity exercise took place and the Government
submitted that transcripts of the incoming and outcoming mobile phone
communications of I.S., M.S., P.S. and E.N. had been requested.
Lastly,
at this stage of the investigation, the DPI procured and obtained
analysis of biological material from three people (B.B., V.P. and
E.K.) with reference to biological traces from the crime scene.
In
the period between the two suspensions, the DPI re-interviewed P.S.
and M.S. and interviewed the third son of I.S., F.S., and M.N., as
well as nine other individuals (M.L., E.K., R.S., I.K., J.H., M.K.,
J.K., P.P. and B.P.), all of whom consented to provide biological
material for the purposes of forensic analysis, the case file
containing the results of the analysis in respect of M.S., P.S.,
F.S., M.N. and M.L. only.
Finally,
in the period after the second suspension, the DPI interviewed seven
other individuals and had biological material analysed and compared
with that from the crime scene in respect of three individuals (P.G.,
M.S. and M.A.).
In
view of the above, the Court observes that, in quantitative terms,
the incident at the applicants’ settlement was subject to
structured and substantive investigation. However, it remains to be
seen whether this investigation was indeed conducted in a determined
manner and whether all was done that could reasonably have been
expected to be done with a view to establishing the identity of the
perpetrators and their motives and, as the case may be, to provide an
adequate basis for their prosecution and punishment.
In
that regard, the Court observes that a crucial piece of evidentiary
material secured at the crime scene appears to be the biological
traces, which were later analysed and compared with biological
material from the suspects. In particular, the Court observes that in
the period between the two suspensions of the investigation
biological material appears to have been taken for the purposes of
such an analysis from the three sons of I.S. and ten other
individuals. However, the results of these analyses, as submitted to
the Court, pertain to the sons of I.S. and two others only, the
results in respect of eight others being missing.
Furthermore,
the Court observes that in suspending the investigation for the
second time the authorities appear to have placed emphasis on the
incongruity between the initial deposition of applicant Mr Ján
Koky that he did not know the identity of one of the five assailants
who was not wearing a balaclava, and his later submission during the
identity parade of 10 April 2002 to the effect that he had recognised
and known that assailant. However, there does not appear to have
been any action taken with a view to clarifying this controversy,
such as, for example, a face to face interview
(konfrontácia).
Moreover,
it has not escaped the Court’s attention that, although the
Government submitted that records of the mobile communications of
some of the involved had been requested with a view to further
enlightenment of the facts, nothing has been submitted in terms of
substantiation of this claim and there does not appear to have been
any action taken by way of follow up.
In
addition, in so far as the Government may be understood as arguing
that the investigation had not been terminated, but had merely been
suspended, and that, accordingly, there has not been any formal
obstacle to its continuation and completion, it has to be pointed out
that there is no appearance that since 13 January 2003 (see paragraph
107 above) any action has been taken to support such a submission.
The
Court considers that these elements, coupled with the sensitive
nature of the situation related to Roma in Slovakia at the relevant
time (see, for example, MiZigárová v. Slovakia,
no. 74832/01, §§ 57-63, 14 December
2010 and V.C. v. Slovakia, no. 18968/07,
§§ 78-84 and 146-9, 8 November 2011), are sufficient
for it to conclude that the authorities have not done all that
could have been reasonably expected of them to investigate the
incident, to establish the identity of those responsible and, as
the case may be, to draw consequences. In reaching this conclusion,
the Court has taken into account the particular importance for an
investigation into an attack with racial overtones to be pursued with
vigour and impartiality, having regard to the need to reassert
continuously society’s condemnation of racism and to maintain
the confidence of minorities in the ability of the authorities to
protect them from the threat of racist violence (see, mutatis
mutandis, Menson v. the United Kingdom (dec.), no.
47916/99, ECHR 2003-V).
In
conclusion, the Court finds that the investigation into the incident
at the applicants’ settlement cannot be considered as having
been effective.
Accordingly,
there has been a violation of the procedural limb of Article 3
of the Convention.
III. OTHER ALLEGED VIOLATIONS
The
applicants also alleged that the perpetrators’ intrusion into
their homes and destruction of their property, coupled with the
authorities’ failure to prevent and suppress racist violence
and to carry out an effective investigation, amounted to a violation
of their rights under Article 8 of the Convention and 1 of Protocol
No. 1.
On
the basis of the same arguments, and in connection with their Roma
ethnicity, the applicants further alleged a violation of Article 13,
in conjunction with Articles 3 and 8 of the Convention, and of
Article 14, in conjunction with Articles 3, 8 and 13 of the
Convention.
The
Court observes first of all that, as for the substance, to
a significant extent the essence of these complaints overlaps
with that of the complaints presented and examined above under
Article 3 of the Convention. The Court finds that there is no
justification for a separate examination of the same matters under
any of the other Convention provisions cited.
Furthermore,
in view of its findings in respect of the complaint under Article 3
of the Convention, the Court considers that it is unnecessary to
examine the remaining complaints. This conclusion applies accordingly
to the Government’s preliminary objection concerning the action
for protection of personal integrity as a remedy to be used under
Article 35 § 1 of the Convention in
respect of the applicants’ complaint under Article 14 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
1. Pecuniary damage
The
applicants claimed 85,300 euros (EUR) by way of compensation in
respect of pecuniary damage. This amount consisted of:
- EUR
7,000 in respect of damage caused to the house of applicant Mr Ján
Koky;
- EUR
833 in respect of earning opportunities lost by applicant Mr Ján
Koky due to the time he had to dedicate to repairing his house;
- EUR
667 in respect of damage caused to the house of applicant Ms Renáta
Čonková; and
- EUR
76,700 in respect of present and future earnings lost by applicant Mr
Martin Kočko on account of his injuries.
The
Government considered the claims overstated and unsubstantiated and
pointed out that the investigation had not been terminated but merely
suspended, which is why the applicants’ claim could still be
pursued at the domestic level.
The
Court observes first of all that the claim in respect of pecuniary
damage has not been supported by any evidence. In addition, the Court
finds no causal link between the damage alleged, which was
essentially caused by non-State actors, and the violation found of
the respondent State’s obligations under the Convention. The
claim therefore has to be dismissed.
2. Non-pecuniary damage
Applicants
Mr Martin Kočko and Mr Rastislav Koky claimed EUR 10,000
each in respect of non-pecuniary damage, consisting of pain,
frustration, helplessness and humiliation they had suffered as a
result of the beatings they had been subjected to and the
deficiencies of the investigation they complained of.
Applicants
Ms Zaneta Kokyová, Mr Milan BaláZ, Ms RuZena Kokyová,
Ms Renáta Čonková, Ms Justínka Lacková
and Mr Ján Koky Jr. claimed EUR 5,000 each in respect of
non-pecuniary damage consisting of pain, frustration, helplessness,
stress and humiliation and lasting harm and emotional and mental
trauma due to the attack.
Applicant
Ms Renáta Kokyová claimed EUR 10,000 in compensation
for non-pecuniary damage on account of the circumstances involving
her minor children being present at and witnessing the attack.
The
Government opposed these claims as overstated and submitted that,
should the Court find a violation of the applicants’ Convention
rights, a more appropriate amount of damages should be paid.
The
Court observes that the violation found above is of a procedural
nature and that it does not concern the underlying treatment suffered
by the applicants at the hands of non-State actors. It considers
that, as a result of the violation found, the applicants must have
sustained damage of a non-pecuniary nature. Having regard to the
amount of their claims and ruling on an equitable basis, it awards
EUR 10,000 to each of the applicants Mr Martin Kočko
and Mr Rastislav Koky and EUR 5,000 to each of the applicants Ms
Zaneta Kokyová, Mr Milan BaláZ, Ms Renáta
Kokyová, Ms RuZena Kokyová, Ms Renáta Čonková,
Ms Justína Lacková, and Mr Ján Koky Jr., plus
any tax that may be chargeable under that head.
Noting
that applicant Mr Ján Koky does not appear to have made any
claim in respect of non-pecuniary damage, no ruling is made in that
respect.
B. Costs and expenses
Lastly,
the applicants claimed EUR 7,116 in respect of legal costs and EUR 62
in respect of administrative expenses incurred at the national level
and before the Court.
Relying
on the Court’s judgment in the case of Young, James and
Webster v. the United Kingdom ((former Article 50), 18 October
1982, § 15, Series A no. 55), the Government submitted that
effective protection of human rights required human rights lawyers to
be moderate in the fees that they charged to applicants; that only
reasonably incurred legal costs should be compensated, and that the
remainder of the claim should be dismissed.
In
accordance with the Court’s case-law, an applicant is entitled
to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum (see, for example, Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court
provides that itemised particulars of any claim made under Article 41
of the Convention must be submitted, together with the relevant
supporting documents or vouchers, failing which the Court may reject
the claim in whole or in part.
In
the instant case, the Court observes that the applicants have not
substantiated their claim with any relevant supporting documents
establishing that they were under an obligation to pay for the costs
of legal services and administrative expenses or that they have
actually paid for them. Accordingly, the Court does not award any sum
under this head (see Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government’s preliminary
objection in respect of the remedies under Article 167 of the Code of
Criminal Procedure and sections 31 et seq. of the Public
Prosecution Act;
Holds that, except for the remedy under Articles
11 et seq. of the Civil Code in respect of the complaint under
Article 14 of the Convention, the Government are estopped from
raising their remaining preliminary objections;
Holds that there has been a violation of
Article 3 of the Convention under its procedural head;
Holds that it is not necessary to decide on
the Government’s preliminary objection in respect of the remedy
under Articles 11 et seq. in respect of the complaint under Article
14 of the Convention;
Holds that it is not necessary to decide on
the merits of the remaining complaints under Article 8 of the
Convention and Article 1 of Protocol No. 1; Article 13 of the
Convention, in conjunction with Articles 3 and 8 of the Convention;
and Article 14 of the Convention, in conjunction with Articles 3, 8
and 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, to
each of the applicants, Mr Martin Kočko and Mr Rastislav Koky,
in respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, to
each of the applicants, Ms Zaneta Kokyová, Mr Milan BaláZ,
Ms Renáta Kokyová, Ms RuZena Kokyová, Ms Renáta
Čonková, Ms Justína Lacková, and Mr Ján
Koky Jr., in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
A P P E N D I X
LIST
OF THE APPLICANTS
Mr
Ján KOKY, born in 1959, residing in Gánovce.
Mr
Martin KOČKO, born in 1985, residing in Gánovce.
Ms
Zaneta KOKYOVÁ, born in 1984, residing in Gánovce.
Mr
Milan BALÁZ, born in 1978, residing in Gánovce.
Mr
Rastislav KOKY, born in 1982, residing in Gánovce.
Ms
Renáta KOKYOVÁ, born in 1978, residing in Gánovce.
Ms
RuZena KOKYOVÁ, born in 1959, residing in Gánovce.
Ms
Renáta ČONKOVÁ, born in 1975, residing in Gánovce.
Ms
Justína LACKOVÁ, born in
1968, residing in Gánovce.
Mr
Ján KOKY, born in 1976, residing in Poprad.
