Violation of Art. 6-2;Not necessary to examine Art. 14

The applicant was born in 1967 and lives in Ghent.

On 29 March 1994 he was arrested in connection with an investigation concerning a case of arson committed on 25 May 1993.

On 1 April 1994 the Committals Division of the Ghent Criminal Court refused to extend the validity of the arrest warrant. On appeal, the Indictment Division of the Ghent Court of Appeal overturned that decision and prolonged the applicant's pre-trial detention.

On 21 April 1994 the investigating judge rescinded the warrant concerned.

On 29 June 1994 and 2 June 1995 respectively the Committals Division and the Indictment Division, ruling on the action to be taken on the basis of the investigation to date, held that there was insufficient evidence to commit the applicant for trial and discontinued the proceedings.

On 25 October 1996 the applicant claimed compensation for unwarranted pre-trial detention, relying on the Law of 13 March 1973 (see “Relevant domestic law” below).

On 12 May 1997 the Minister of Justice refused the applicant's claim on the ground that he had not “established his innocence by adducing factual evidence or submitting legal argument to that effect”, as required by section 28(1)(b) of the Law of 1973. That requirement was justified, according to the Minister, in the case of an order or judgment discontinuing criminal proceedings, given that a discontinuation decision was not a bar to the reopening of the case if new information or evidence were to come to light.

On 4 July 1997 the applicant contested the Minister's decision by means of an application to the Unwarranted Pre-trial Detention Appeals Board.

On 1 December 1997 the applicant appeared before the Appeals Board, which upheld the refusal of his claim by a decision taken on the same day and served on the applicant on 29 March 1998. It noted that the grounds for presuming the guilt of the applicant, who had always denied committing the offence he stood accused of when appearing before the courts investigating the charge, had been held to be insufficient to justify committing him for trial. It observed that, although the applicant had announced his intention of submitting a pleading setting out the evidence in the file which “amply” proved his innocence, he had not done so and had not replied to the Government's submissions. Consequently, the Appeals Board found that he had not proved his innocence as the law required (dat verzoeker derhalve het bij de wet van hem vereiste bewijs van onschuld niet bijbrengt).

At the material time the relevant provisions of the Law of 13 March 1973 on compensation for unwarranted pre-trial detention read as follows:

“(1) Any person deprived of his liberty in conditions incompatible with Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, approved by the Law of 18 May 1955, shall be entitled to compensation.

(2) The action for compensation shall be brought in the ordinary courts in accordance with the formalities laid down in the Judicial Code and directed against the Belgian State in the person of the Minister of Justice.”

“(1) A compensation claim may be lodged by any person held in pre-trial detention for more than eight days, provided the detention concerned or its prolongation were not provoked by his own conduct:

(a) if he has been exculpated directly or indirectly by a judicial decision that has become final;

(b) if after being discharged through an order or judgment discontinuing the proceedings he establishes his innocence by adducing factual evidence or submitting legal argument to that effect;

(c) if he has been arrested or kept in detention after expiry of any statutory limitation period;

(d) if he has been discharged through an order or judgment discontinuing the proceedings which expressly states that the act which gave rise to the pre-trial detention did not constitute a criminal offence.

(2) The amount of compensation shall be determined equitably, and with regard to all the circumstances of public and private interest.

(3) Where the person concerned is not able to bring compensation proceedings in the ordinary courts, compensation may be claimed by means of a written request to the Minister of Justice, who shall rule on it within six months.

The compensation shall be awarded by the Minister of Justice from the Treasury account if the conditions set out in subsection (1) above are satisfied.

Where compensation is refused, or the amount is considered insufficient, or the Minister of Justice has not replied within six months of the request, the person concerned may apply to the Board set up in accordance with subsection (4) below.

In the case of prosecution for one of the offences defined in Articles 147, 155 and 156 of the Criminal Code, committed against the person detained, the six months mentioned in the preceding paragraph shall begin to run on the day when that prosecution is closed by a decision that has become final.

(4) An Appeals Board is hereby instituted to hear appeals against decisions taken by the Minister of Justice, or rule on compensation claims where the Minister has not reached a decision in accordance with the conditions set out in subsection (3) above.

The Appeals Board shall be composed of the President of the Court of Cassation, the President of the Conseil d'Etat and the President of the Belgian Bar Association or, where one or more of those persons are prevented from sitting, of the Vice-President of the Court of Cassation, the Vice-President of the Conseil d'Etat and the Vice-President of the Bar Association.

The duties of secretary to the Appeals Board shall be performed by one or more members of the registry of the Court of Cassation appointed by its president.

The rules of procedure of the Appeals Board shall be laid down by the Crown.

(5) Appeals and claims shall take the form of applications in two copies signed by the claimant or his lawyer and lodged with the registry of the Court of Cassation within sixty days of the Minister's decision or of the expiry of the time within which he should have announced it.

The Crown shall lay down the procedure before the Appeals Board sitting in closed session.

The Appeals Board shall give its ruling on the opinion expressed at the hearing by Principal Crown Counsel attached to the Court of Cassation, after hearing the submissions of the parties.

The Appeals Board's decisions shall be delivered at a public sitting. No appeal shall lie against them.

At the parties' request, an extract from the Appeals Board's decision shall be published in the Moniteur belge, but the extract may not mention the amount awarded. The costs of publication shall be borne by the Treasury.”


CASE OF TRADE UNION OF THE POLICE IN THE SLOVAK REPUBLIC AND OTHERS v. SLOVAKIA

Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The Trade Union of the Police in the Slovak Republic (the first applicant) is registered as a trade union of members of the Police Corps of the Slovak Republic. It is a legal person with its registered office in Bratislava. The application on its behalf was lodged by Mr M. Litva, the trade union’s president. Mr Štefan Dvorský (the second applicant) is a Slovak national who was born in 1960 and lives in Malacky. At the relevant time he was vice-president of the first applicant association. Mr Marián Magdoško (the third applicant) is a Slovak national who was born in 1962 and lives in Prešov. He is the first applicant’s vice-president. Mr Karol Michalčík (the fourth applicant) is a Slovak national who was born in 1953 and lives in Bratislava. He is a member of the first applicant association.

On 25 October 2005 the first applicant, of which nearly 9,000 policemen were members at that time, organised a public meeting in one of the main squares in Bratislava. Its aim was to protest against envisaged legislative amendments concerning the social security of policemen and their low remuneration. In its course the participants spontaneously shouted, inter alia, that the Government should step down. One of the banners displayed by the participants read “If the State doesn’t pay a policeman, the mafia will do so with pleasure”.

Subsequently the Minister of the Interior criticised the meeting and its organisers. He considered it to be an attempt to involve policemen in politics, in particular because of the slogan calling for the Government’s resignation, which he considered incompatible with the ethical code of the police.

Apart from the public statements described below, the Minister of the Interior, on 26 October 2005, removed Mr Litva, the president of the first applicant, from the post of director in the police force and assigned him to a different post as an ordinary policeman. At an extra-ordinary general meeting of the police joint health insurance company held on 3 November 2005, the third applicant was removed, upon a proposal by the Minister of the Interior, from the company’s supervisory board. The policeman who had carried the above-mentioned banner was summoned by the inspection service of the Ministry of the Interior and was asked to explain its content.

The applicants refer to the following public statements by the Minister of the Interior in particular.

In an article published on 28 October 2005 in the daily newspaper Sme the Minister of the Interior was quoted as saying that if anyone acted contrary to the ethical code of the police again they “would be dismissed”.

In an interview published in the same newspaper on 29 October 2005 the Minister stated that he did not challenge the policemen’s right to elect their trade union representatives. He expressed the view that, nevertheless, he was not obliged to negotiate with those representatives as they had lost credibility.

In a TV debate broadcast on 30 October 2005 the Minister of the Interior stated, among other things:

“Mr Litva was demoted because he misled ... the public, those policemen whom he had lured out to the square ... Mr Litva was not demoted because of his opinion, but for having lied. He lied in that he called into question [the fact] that the Government had money at their disposal for increasing policemen’s salaries ...

The Police Corps of the Slovak Republic is an armed security force. As such it must remain strictly apolitical. This means in practice, as article 3 of the ethical code of the police indicates, that when expressing his or her views in public a policeman must act in an impartial and reserved manner, so that there can be no doubt about his or her impartiality. Thus slogans calling for the Government’s resignation are in complete contradiction to that code ... I am telling you, it will not be possible for excesses like the ones at that meeting to reoccur in the future. This is what I guarantee to you. If a policeman behaves in such a way in the future, he or she will no longer be a policeman. I still proceeded in a particularly moderate manner in this case, where the sanction applied concerned Mr Litva exclusively.”

On 1 December 2005 the applicants lodged a complaint with the Constitutional Court. They alleged a breach of Articles 10 and 11 of the Convention and their constitutional equivalents. The applicants specifically referred to the above-mentioned statements of the Minister of the Interior which had been published in Sme on 28 and 29 October 2005 and to the statements he had made in context of the TV broadcast of 30 October 2005.

In particular, the applicants maintained that the Minister’s statements, when considered in the light of his powers in respect of the police, gave rise to a fear that members of the police force would be sanctioned for availing themselves of their freedoms of expression, assembly and association. There had been no breach of the Ethical Code of the police in the context of the public meeting organised by the first applicant. The Minister’s statements had been repressive, as he had indicated that he was not obliged to negotiate with the representatives of the first applicant. Those statements, accompanied by the transfer of the president of the first applicant to a different position, deterred the police from defending their rights through their trade union.

On 18 October 2007 the Constitutional Court found that the statements in question had not breached the applicants’ rights.

The judgment stated that the freedom of assembly and association under Article 11 of the Convention and the ILO Convention No. 98 extended exclusively to natural persons. The Minister’s statements complained of could not, therefore, amount to a breach of that freedom in respect of the first applicant.

The Constitutional Court considered that, in the context of the meeting held on 25 October 2005, the applicants had exercised their right to freedom of expression. At the same time the second, third and fourth applicants had exercised their right to freedom of association with others. They had done so freely and independently of the will of the Minister of the Interior. The Minister’s statements published in the media were to be understood as part of a dialogue between both parties, who had thus been given the opportunity to express their opinions and standpoints.

Admittedly, the Minister’s statements could be characterised as “bold and, from a certain point of view, capable of creating an atmosphere of fear”. However, their nature and intensity were not such as to amount to a breach of the freedoms in issue.

The Constitutional Court further held that the Minister of the Interior had been entitled to express his opinion on the situation within the ministry for which he was politically responsible. His statements represented an immediate reaction to ideas and views expressed at the meeting. Those statements had not interfered with the applicants’ rights in issue. They merely described a situation which might occur under specific circumstances. However, the Constitutional Court was exclusively entitled to examine complaints of breaches of rights which were based on facts that had actually occurred.

In a separate opinion to the decision on admissibility one of the constitutional judges expressed the view that the applicants’ complaint should have been rejected for their failure to use the other remedies available, namely, to seek redress by means of an action under the State Liability Act 2003.

Article 26 § 1 guarantees to everyone freedom of expression and the right to information. They can be restricted by law where it is necessary in a democratic society for the protection of rights and freedoms of others, the security of the State, public order or protection of health and morals (paragraph 3 of Article 26).

Article 37 § 1 provides that everybody has the right to free association with others for the protection of his or her economic and social interests. Paragraph 3 of Article 37 allows for restriction by law of the activities of trade unions and other associations where such measure is indispensable in a democratic society for the protection of State security, public order or the rights and freedoms of other persons.

Article 108 provides that the Government is the supreme body of the executive branch of power. Under Article 116 § 1, a member of the Government is responsible for the exercise of his or her function to the National Council of the Slovak Republic.

Section 11 provides that the Ministry of the Interior is the central State administration authority in charge of, inter alia, protection of the constitutional institutions, public order, security of persons and property and of the Police Corps.

Pursuant to section 1(1), the Police Corps fulfils duties in matters related to internal order, security and the fight against crime as well as duties resulting from the international obligations of the Slovak Republic. Its activity is controlled by the National Council of the Slovak Republic and the Government (section 1(2)).

Section 6(1) provides that the Police Corps is subordinated to the Minister of the Interior.

Law no. 73/1998 governs, inter alia, service in the Police Corps of the Slovak Republic. Section 35(2) entitles the Minister of the Interior to transfer a policeman from the position of a superior to a different position where it is in the significant interest of the service. The reasons for such a transfer need not be indicated.

Pursuant to section 225(1), trade unions ensure the protection of the rights and justified interests of policemen in accordance with the law.

Section 227(1) prohibits the dismissal of a policeman on account of his or her acting as an elected trade union representative.

Section 228 provides for co-operation between high-ranking police officers and trade unions. It includes providing information on the use of salary mass, respect for just remuneration, information on staff-related measures and provision of material and technical equipment free of charge to trade unions.

Section 229 provides for collective bargaining and collective agreements between the trade union bodies and police authorities concerned with a view to protecting the justified interests and needs of the members of the police corps.

Article 3 of the Ethical Code of Members of the Police Corps states that, when expressing their views in public, policemen should act in an impartial and reserved manner so that they do not give rise to doubts about their impartiality.

The relevant provisions of the ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and in force in respect of Slovakia since 1 January 1993) provide as follows:

3.(1) Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

3.(2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

9.(1) The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.”

The ILO Convention No. 98 Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively has been in force in respect of Slovakia since 1 January 1993. The relevant provisions read as follows:

Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

Such protection shall apply more particularly in respect of acts calculated to- (...)

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. (...)

The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.” (...)

Resolution 690 (1979) of the Parliamentary Assembly of the Council of Europe includes the Declaration on the Police. Point 8 of part B of that declaration provides that membership of a police professional organisation and playing an active part therein shall not be detrimental to any police officer.

Recommendation of the Committee of Ministers to member States on the European Code of Police Ethics (Rec (2001) 10) was adopted on 19 September 2001. Part D concerns the rights of police personnel. Its relevant parts read as follows:

“5. Police personnel shall be subject to the same legislation as ordinary citizens, and exceptions may only be justified for reasons of the proper performance of police work in a democratic society. (...)

The police shall be organised with a view to earning public respect as professional upholders of the law and providers of services to the public. (...)

Police staff shall as a rule enjoy the same civil and political rights as other citizens. Restrictions to these rights may only be made when they are necessary for the exercise of the functions of the police in a democratic society, in accordance with the law, and in conformity with the European Convention on Human Rights.

Police staff shall enjoy social and economic rights, as public servants, to the fullest extent possible. In particular, staff shall have the right to organise or to participate in representative organisations, to receive an appropriate remuneration and social security, ...”