Edo PIRKMAJER v Slovenia - 30745/03 [2008] ECHR 1750 (25 November 2008)

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The European Court of Human Rights (Third Section), sitting on 25 November 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Setion Registrar,

The applicant, Mr Edo Pirkmajer, is a Slovenian national, who was born in 1932 and lives in Ljubljana. He was represented before the Court by Mr D. Demšar, a lawyer practising in Ljubljana.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant’s late father was a member of the Regional Council (Pokrajinski sosvet) of the then Ljubljana Province during the Second World War, appointed by the Italian government during its occupation of Slovenia.

In 1944 the applicant’s father left Slovenia, but his family stayed there. From March 1944 he was based in Switzerland.

On 4 July 1945 the Court of National Honour (Sodišče slovenske narodne časti – “the CNH”) of the People’s Republic of Slovenia (Ljudska republika Slovenija) sentenced the applicant’s father in absentia on the basis of the Act on the Punishment for Crimes and Offences against Slovenian National Honour (Zakon o kaznovanju zločinov in prestopkov zoper slovensko narodno čast, enacted on 5 June 1945, Official Gazette of the Slovenian National Liberation Council and the National Government of Slovenia no. 7/45 – “the ASNH”) to “loss of national honour for ten years, to light forced labour for five years and to the confiscation of 75% of all of his property” on account of his “intentional political cooperation with the fascist occupier” and the corresponding “prejudice to the good reputation and honour of the Slovenian nation and its resistance”.

On 23 December 1991 the Constitution of the Republic of Slovenia (“the Constitution”) entered into force.

On 28 June 1994 the Convention and on 1 September 1994 Protocol No. 7 to the Convention entered into force in respect of Slovenia.

On 27 December 1996, relying on section 559 of the Criminal Procedure Act, the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court (Vrhovno sodišče) against the CNH’s judgment of 4 July 1945. The applicant requested that the judgment be quashed and the case be remitted to the first-instance court for re-examination owing to the violation of the applicant’s father’s defence rights.

On 5 December 2000 the applicant amended his request, arguing that his father had not acted against the interests of the nation. He attached copies of two documents which he claimed that his father would have submitted in his defence had he had an opportunity to attend the trial.

The Supreme Court later joined the proceedings in the applicant’s case to the proceedings instituted by T.B. and S.B., successors of J.B., who had also been sentenced in the CNH’s judgment of 4 July 1945.

On 25 January 2001 the Supreme Court dismissed the applicant’s request and partly upheld T.B.’s and S.B’s request, with effect also for the applicant. By virtue of its decision, the Supreme Court quashed the penalty of confiscation of 75% of all of the applicant’s father’s property, owing to the lack of reasoning on that point. As to the applicant’s fresh submissions of 5 December 2000, the Supreme Court found that they had been lodged out of time. As to the complaint concerning the trial in absentia, the Supreme Court held that it was not competent to deal with questions of fact and as a result could not consider the question whether the applicant’s father had in fact been a fugitive. It added that the trial in absentia of his father would in any event have also been justified on the other grounds referred to in the ASNH, namely that he had been “unavailable”.

Referring to the Constitutional Court’s (Ustavno sodišče) decision of 30 September 1998 (see “Relevant domestic law” below), the Supreme Court furthermore found that the ASNH did not have an unlawful retroactive effect. In the applicant’s father’s case, his conviction was based on sufficiently established facts, namely his membership of the Regional Council and certain specific acts of political collaboration with the occupier. The relevant provision of the ASNH, which represented the basis for his conviction, was therefore not a lex incerta and had not been applied arbitrarily.

On 26 June 2001 the applicant lodged a constitutional appeal with the Constitutional Court.

On 18 March 2003 the Constitutional Court found that it could only deal with the alleged violations relating to the Supreme Court’s judgment and that it had no jurisdiction to consider the complaints concerning the trial in 1945 since it had taken place before the Constitution had entered into force. As to the issue of lex certa, it referred to its previous decisions providing criteria for assessing laws enacted prior to the entry into force of the Constitution (see “Relevant domestic law” below). It found that the Supreme Court, applying the above-mentioned criteria, had sufficiently and convincingly explained its decision. It concluded that the applicant’s complaints were manifestly ill-founded.

On 24 March 2003 the Constitutional Court’s decision was served on the applicant.

On 1 April 1994 the Constitutional Court (U-I-6/93) decided that the courts in Slovenia should not rely on the provisions of the Decree on Military Tribunals of 24 May 1944, which had established the jurisdiction of military courts at the material time, if they had been used, inter alia, to incriminate persons purely on the ground of their status and had not had regard to the particular acts of the accused. In the same decision the Constitutional Court requested Parliament to ensure that extraordinary remedies would be available in order to annul any unjust decisions delivered on the basis of legislation passed by the wartime and post-war revolutionary government.

On 19 September 1994 the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) was passed. It came into force on 1 January 1995.

Section 559 of the Criminal Procedure Act provides for the possibility to lodge a request for the protection of legality against decisions which had become final before the date of its entry into force. It states, in so far as relevant:

“... the convicted person and persons referred to in subsection 2 of section 367 of the present Act [among others also children of convicted persons] shall be entitled, within two years of the entry into force of the present Act, to lodge a request for the protection of legality against a judicial decision which became final before the entry into force of the present Act and against proceedings conducted before such final and binding decision was adopted.”

Section 420 of the Criminal Procedure Act lays down the conditions under which a request for the protection of legality can be lodged:

“(1) A request for the protection of legality against a final judicial decision and the judicial proceedings which preceded that decision may be submitted in the following cases:

2) on the grounds of a fundamental violation of the rules of criminal procedure referred to in the first subsection of section 371 of the present Act [listing such procedural violations];

3) on the grounds of other violations of the rules of criminal procedure if such violations affected the lawfulness of a judicial decision.

(2) A request for the protection of legality may not be lodged on the grounds of an erroneous or insufficient establishment of facts, or against a decision of the Supreme Court ...”

“The Supreme Court shall by a judgment dismiss a request for the protection of legality as unfounded, if it establishes that the violation of the law alleged by the requesting party has not been committed or that the request for the protection of legality has been lodged on the grounds of an erroneous or insufficient establishment of facts.”

Lastly, section 426 provides for the various decisions which may be adopted by the Supreme Court in well-founded cases:

“(1) If the Supreme Court finds that a request for the protection of legality is well-founded it shall pass a judgment by which, depending on the nature of the violation, it shall: modify a final and binding decision; or annul in whole or in part the decision of both the court of first instance and the higher court or the decision of the higher court only, and remit the case to the court of first instance or the higher court for a fresh decision or re-examination; or it shall confine itself to establishing a breach of the law.

On 30 September 1998 the Constitutional Court, in decision no. U-I-248/96, considered the provisions of the ASNH. It found:

“[t]he provisions of the Act on the Punishment for Crimes and Offences against Slovenian National Honour ... were in contradiction with the general principles of law recognised at the material time by civilised nations, in so far as they represented, because of their uncertainty, a basis for arbitrary use of the [A]ct. In such a case ... their use in the proceedings would be in contradiction with the Constitution.”

The applicant submitted in his application that he sought to obtain the “moral rehabilitation” of his late father.

He complained that in the present case the respondent State had violated the accused’s rights as guaranteed in Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention. He furthermore complained that the Supreme Court and the Constitutional Court had wrongly applied the law, in particular in assessing the notion of “political cooperation with the occupier”. He submitted that the Supreme Court should have ruled on the facts on which his complaints had been based, in particular on the issue of whether his father had been “available” for trial. He also complained about the Constitutional Court’s refusal to examine the alleged breaches of human rights in the post-war proceedings.

In addition, the applicant submitted that Article 2 of Protocol No. 7 to the Convention had been violated as his father had had no right to appeal against the CNH’s judgment of 1945, which had become immediately enforceable.

Lastly, the applicant complained that there had been a violation of Article 7 of the Convention as his father had been convicted of a crime which had not existed in the law in force at the material time and which had not been described with sufficient precision (lex certa).

The applicant complained that his father’s defence rights had been violated. In substance, he also complained that the proceedings before the Supreme Court and the Constitutional Court had been unfair.

“1. In the determination of his civil rights and obligations or of any criminal charge against him... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

He further complained of a violation of Article 7 of the Convention, which provides as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Lastly, the applicant argued that his father had not been able to appeal against the CNH’s judgment, in breach of Article 2 of Protocol No. 7 to the Convention, which provides:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

At the outset, the Court observes that the trial of the applicant’s father took place in the People’s Republic of Slovenia – at that time part of the Federal People’s Republic of Yugoslavia – in 1945, immediately after the Second World War. Further to the independence of Slovenia, the Convention entered into force on 28 June 1994 and Protocol No. 7 to the Convention on 1 September 1994. Subsequently, between 1996 and 2003, the applicant pursued proceedings before the Supreme Court and the Constitutional Court.

The Court reiterates that, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting State, facts subsequent to its entry into force with regard to that State (see, for example, Kazimova v. Azerbaijan (dec.), no. 40368/02, 6 March 2003, and Kadiķis v. Latvia (dec.), no. 47634/99, 29 June 2000).

Therefore, the Court finds that the part of the application relating to the trial in 1945 falls outside the scope of its competence ratione temporis and the related complaints under the criminal limb of Article 6 and Article 7 of the Convention, as well as the complaint under Article 2 of Protocol No. 7, must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Maksimov v. Azerbaijan (dec.), no. 38228/05, 1 February 2007).

On the other hand, the Court has temporal competence to examine the part of the application relating to the proceedings which took place after the entry into force of the Convention with respect to Slovenia. In this connection, it reiterates that a person, non-governmental organisation or a group of individuals must, in order to be able to lodge an application in pursuance of Article 34, claim “to be the victim of a violation ... of the rights set forth in the Convention...”. While it is true that the rules of admissibility governed by Article 35 must be applied with some degree of flexibility and without excessive formalism, Article 34 requires that an individual applicant should claim to have been actually affected by the violation alleged (see Fairfield and Others v. the United Kingdom (dec.), 24790/04, ECHR 2005-VI). The Court has consistently rejected as inadmissible ratione personae applications lodged by the relatives of deceased persons in respect of alleged violations of rights other than those protected by Articles 2 and 3 of the Convention (see, for example, Fairfield and Others, cited above, and Biç and Others v. Turkey, no. 55955/00, §§ 17-24, 2 February 2006). In this connection it has distinguished between applications pursued by the relatives of applicants who had personally lodged applications and died during the proceedings before the Court (see Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999 VI) and those lodged by relatives after the death of the persons concerned.

The Court notes that the applicant’s father died in 1975, before the Convention came into force in respect of Slovenia and before the present application was lodged with the Court.

In these circumstances, the Court considers that the applicant would not have standing to lodge an application on behalf of his deceased father. However, it notes that the applicant has lodged the application in his own name, and it is therefore necessary to examine whether he can claim to be a victim of a violation of his own rights in the proceedings instituted under the Criminal Procedure Act which fall within the Court’s temporal jurisdiction.

Given that the proceedings before the Supreme Court and the Constitutional Court did not concern a “criminal charge” against the applicant, the applicant could only claim to be the victim of an alleged violation of Article 6 in those proceedings if they determined his civil rights or obligations.

The Court observes in this connection that Article 6 applies under its “civil head” if there was a “dispute” (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. That dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The Court must also be satisfied that the result of the proceedings at issue was directly decisive for the right asserted (see, among many others, Georgiadis v. Greece, 29 May 1997, § 30, Reports 1997-III).

It is true that the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to their ratification of the Convention (see Associazione Nazionale Reduci v. Germany (dec.), no. 45563/04, 4 September 2007, and Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004-IX). In the present case, however, the State created a new right; that is a right of a child of a person who had been convicted before the Criminal Procedure Act came into force to seek on his behalf a review of the legality of his criminal conviction, which could lead to acquittal. It is clear from the case-law of the Constitutional Court that this possibility was intended to provide a remedy to, inter alia, those wrongfully convicted as a result of political repression. It can therefore be said that Slovenian law created a right to obtain the acquittal of a member of one’s family if his conviction was in fact not the result of a lawful finding that he was guilty of a criminal offence but, in so far as wartime and post-war convictions were concerned, the result of an arbitrary application of laws in force at the material time (see “Relevant domestic law” above). Therefore, in the present case there was a dispute over a right recognised under domestic law.

On the question of whether or not this right is “civil” for the purposes of Article 6 § 1, the Court recalls that it has consistently held that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State’s domestic law and that this provision applies irrespective of the status of the parties, the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter (see Georgiadis, cited above, § 34). In this connection the Court notes that “the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks upon such reputation must be considered to be civil rights within the meaning of Article 6 § 1 of the Convention” (see Werner v. Poland, no. 26760/95, § 33, 15 November 2001, and Kurzac v. Poland (dec.), no. 31382/96, ECHR 2000 VI). Moreover, Article 6 of the Convention may also apply under its civil head to proceedings in which an applicant seeks, on the basis of a specific legal provision, to restore the honour and reputation of his family by having the allegedly wrong conviction of a deceased relative overturned (see, Kurzac, cited above).

In this connection, the Court notes that the applicant did not complain about the part of the proceedings concerning the confiscation of his father’s property, the outcome of which was, in any event, favourable to him. The applicant in fact complained about the remaining part, which concerned the conviction of his father and which had been decisive for his interest in obtaining his father’s “moral rehabilitation”. The Court notes that although the acquittal which the applicant sought would have allowed him in the first place to clear his father’s name in the eyes of the law and of the public, it would also have allowed the applicant himself to restore the honour and reputation of his family.

On that basis, the Court concludes that the result of the proceedings in issue was decisive for a “right” which by its very nature was “civil”, namely the applicant’s right to enjoy a good reputation and to protect the honour of his family and restore its good name (see Kurzac, cited above). Article 6 of the Convention is therefore applicable to this part of the application and the applicant has standing to pursue the proceedings.

That said, the Court must determine whether this part of the application complies with the other requirements of Article 35 of the Convention, in particular whether it is not manifestly ill-founded within the meaning of Article 35 § 3.

It reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of the rights or freedoms protected by the Convention (see, for example, Kerimov v. Azerbaijan (dec.), no. 151/03, 28 September 2006).

As regards the present case, the Court observes that the Supreme Court proceedings were instituted on the basis of a request for the protection of legality and were limited by the very nature of such a request to the assessment of the compliance of the impugned judgment with procedural and substantive laws. In particular, they were aimed at ascertaining whether the ASNH had been applied arbitrarily in the applicant’s father’s case. The Court notes that there is no indication that the Supreme Court acted arbitrarily in assessing the applicant’s case within the limits of its jurisdiction. It notes that the applicant was able to submit all necessary arguments in defence of his appeal and that the court gave them due consideration.

As regards the proceedings before the Constitutional Court, the Court notes that the subject of its examination was the compliance of the Supreme Court’s decision, and not the proceedings from 1945, with the Constitution. Assuming that Article 6 was applicable to these proceedings (see Šubinski v. Slovenia, no. 19611/04, § 69, 18 January 2007), and having regard to their special nature (see, mutatis mutandis, Roshka v. Russia (dec.), no. 63343/00, 6 November 2003), the Court does not find any indication of a violation of the guarantees of Article 6 § 1 of the Convention.

It follows that the applicant’s Article 6 complaint under its civil limb is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Edo PIRKMAJER v Slovenia - 30745/03 [2008] ECHR 1750 (25 November 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1750.html Cite as: [2008] ECHR 1750