The petitioners are M.O., E.O., V.O., R.P., M.P. and D.P., all Slovak nationals of Roma ethnicity, born in 1966, 1962, 1990, 1986, 1953 and 1969 respectively. They claim that the State party violated their rights under articles 2 (1) (a) and (d), 5 (b) and 6 of the Convention. Slovakia acceded to the Convention on 28 May 1993 and made the declaration under article 14 on 17 March 1995. The petitioners are represented by a non-governmental organization, the European Roma Rights Centre.
Facts as submitted by the petitioners
On 24 August 2012, within the framework of Action Code 100,4 police forces entered Roma neighbourhoods in the villages of Stráne pod Tatrami and Huncovce, where the petitioners live. Altogether, 53 police officers were deployed in 18 police cars with three police dogs. In Stráne pod Tatrami, the intervening officers initially did not explain the reasons for the raid, nor did they show any arrest or search warrants. Despite appearing to be searching for a single person, the police officers physically and verbally abused several people. Later, it was revealed that the police were searching for an individual named Š.O. The members of the community did not show any resistance. During the incident, the first petitioner, M.O., a pensioner and patient with cancer wearing an implanted catheter, was standing outside his home when the police started threatening him and ordered him to go inside. One of the officers pushed him and he fell. When he fell, his catheter became detached, which caused him enormous pain. He lost consciousness and had to be taken to the hospital, where he underwent surgery.
- Action Code 100 is a coordinated series of police interventions aimed at searching for wanted people and items under article 2 para. I (I) of Act No. 171/1993 on police forces, article 39 of Ministry of Interior Regulation No. 53/2007 on the procedure of searching for persons and items, and order no. 36/1999 of the President of the Police Forces. ↩
The second petitioner, E.O., is paralysed below the waist and cannot move without a wheelchair or assistance from others. He was in bed at home when the police kicked down the door to his residence. They began searching the premises without explaining anything to the people living there. The officers asked E.O. to stand up. He could not comply with the order due to his disability. The officers asked him to “shut up” and forced him to stand up. He immediately fell to the floor, where they started to punch and kick him. The fourth petitioner, R.P., was at home when police kicked down his door. They did not show a warrant. They asked him whether he knew Š.O. Subsequently, they started punching him, including in his face, in the presence of his family members. Similar police action occurred in the Roma neighbourhood in the village of Huncovce. Police entered homes in the neighbourhood, did not show any arrest or search warrants and used physical violence and racial slurs against several inhabitants. Based on the actions of the police officers, it seemed they were looking for a specific person.
The fifth petitioner, M.P., was standing outside his home when he saw police officers entering the community. They approached him, dragged him inside his house and pushed him against the wall. The police used some weapon (possibly an electric paralyser) against him which caused a burning sensation. The police searched his house. Subsequently, they checked his electricity meter and wrote down some notes. Police also searched the home of the sixth petitioner, D.P. She was at home with family members. The police kicked down the main door and began searching the premises. According to the petitioner, they behaved aggressively, despite small children being present in the house. The third petitioner, V.O., was at home when he saw about 20 police officers entering the neighbourhood.
According to the police, the operations in the neighbourhoods were search actions initiated to find two people (one from each neighbourhood), one of them (a minor at the time) for a petty offence. According to the police, 35 “housing objects” in “Roma settlements” were investigated to find these two people.
On 20 May 2013, several victims of the police abuse, including the six petitioners, complained to the Department of Control and Inspection Service of the Ministry of the Interior.5 The complaint was dismissed due to the lack of a power of attorney, even though the legal representative had attached powers of attorney and the petitioners had also personally signed the complaint. On 22 July 2013, a new complaint was lodged. The Inspectorate decided it was a criminal complaint and began to investigate it.
- The Inspectorate is a body responsible for investigating complaints against members of police forces. ↩
On 31 October 2013, as the petitioners later found out, the Inspectorate terminated the investigation. None of the people who claimed to be victims of the two raids had been asked to give testimony. The Inspectorate’s decision was based solely on evidence from the police department responsible for the incident (the District Directorate of Police Forces in Kežmarok). The Inspectorate concluded that the victims had fabricated their testimonies about the incident and that there was no reason to investigate the allegations submitted by the petitioners. It also suggested that the petitioners’ lawyer and the European Roma Rights Centre might have conspired to file the complaint on behalf of the victims. The decision to terminate the investigation, dated 31 October 2013, was delivered to the victims only on 14 April 2014,6 after the victims had filed a complaint with the Prosecutor General’s Office on 26 February 2014.
- In accordance with national law (Act No. 301/2005, Code of Criminal Procedure), the decision became effective only after its communication to the victims. ↩
On 16 April 2014, the petitioners’ lawyer filed a complaint against the Inspectorate’s decision of 31 October 2013. On 18 June 2014, the District Prosecutor’s Office in Kežmarok eventually quashed the decision of the Inspectorate. According to the supervising prosecutor, the decision had been issued prematurely, as the Inspectorate had not heard the testimony of the alleged victims or the police officers, nor had it checked whether there was any recording of the actions or examined other evidence that might have helped to clarify what happened on 24 August 2012.
On 28 July 2014, more than two years after the incidents, the Inspectorate initiated criminal proceedings on the counts of misuse of powers of the public authority, breach of the right to respect for home and infliction of bodily harm. Most of the victims were interviewed; the sixth petitioner was not, however, summoned to testify. The Inspectorate did not inform the petitioners’ legal representative of the procedural steps being taken until 14 November 2014, when the third petitioner gave his testimony. Thus, for example, when the fifth petitioner was questioned, the petitioners’ lawyer was not present and could not ask the fifth petitioner any questions on the record. The authorities never took any steps to remedy this. On 30 October 2015, the criminal proceedings were terminated and the Inspectorate concluded that the actions committed by the police did not constitute a criminal offence. The Inspectorate also concluded that the evidence presented by the petitioners was contradictory.7 The Inspectorate acknowledged that police officers had entered several homes situated in the two neighbourhoods. However, it concluded, without explaining its conclusion, that the entries were all in accordance with the law. Concerning the physical violence, the Inspectorate stated that besides the victims’ testimonies, there was no other evidence to prove it.
- No information is provided by the petitioners as to the nature of the evidence submitted. ↩
On 18 December 2015, the petitioners’ lawyer filed a complaint against the decision of the Inspectorate. On 28 December 2015, the lawyer tried to get access to the entire case file, as she had not been involved in the case from the start. The authorities refused to give her access. On 18 January 2016, the District Prosecutor’s Office in Kežmarok dismissed the complaint as ill-founded. On 12 February 2016, almost a month after the case was dismissed, the petitioners’ lawyer was informed that she would be able to see the case file. On 11 and 18 April 2016, the lawyer was finally able to inspect the file.
On 18 April 2016, the victims’ lawyer filed a motion with the Office of the Prosecutor General and requested a review of the actions and decisions of the investigating authorities. On 26 April 2016, the Office of the Prosecutor General referred the matter to the Regional Prosecutor’s Office in Prešov. However, the Regional Prosecutor’s Office did not inform the victims of any measures taken.
On 3 May 2016, the petitioners lodged a first complaint with the Constitutional Court. They claimed violations of their human dignity, the right to be free from torture and other illtreatment, the right to liberty and security of the person, the right to protection of one’s home and the right to an effective remedy. They also claimed the right to be protected from discrimination. On 7 June 2016, the Constitutional Court dismissed the complaint due to the allegedly late submission of the complaint, which should have been submitted within two months of the exhaustion of other remedies. The Constitutional Court reasoned that the twomonth deadline began to run on 18 January 2016, rejecting the petitioners’ argument that it should only start to run in April 2016, when their lawyer was granted access to the full case file. The Constitutional Court also noted that there were powers of attorney missing, which the lawyer subsequently sent on 27 June 2016, after the Constitutional Court ruling but before the ruling was notified to the petitioners’ lawyer, but to no avail.
On 27 November 2017, the petitioners lodged a second constitutional complaint, arguing that they had submitted the initial complaint within the two-month deadline. On 12 December 2017, the Constitutional Court dismissed the complaint. It stated that the supervising prosecutor had already reviewed the actions and the decision made by the Inspectorate and that since the principle of subsidiarity binds the Constitutional Court, it did not have any competence to decide on that aspect of the complaint. With regard to the actions and decisions of the prosecutors, the Constitutional Court held that the complaint had not been filed within the two-month period prescribed by law.
On 19 March 2018, the petitioners filed a third complaint before the Constitutional Court. On 17 July 2018, the Court dismissed the complaint, stating that it was ambiguous, was manifestly ill-founded and was lodged out of time. The decision was notified to the petitioners on 24 September 2018, at which point it entered into force. The petitioners note that they have thus submitted the communication within the six-month time limit after having exhausted domestic remedies.
The petitioners argue that the facts set out above constitute a pattern of incidents in Roma neighbourhoods. Similar incidents took place in June 2013 in Moldava nad Bodvou and in April 2015 in the village of Vrbnica in eastern Slovakia. According to the Slovak Ombudsperson, all the police actions under Action Code 100 in the Michalovce District were carried out solely in Roma neighbourhoods: Kapušianske Klačany, Iňačovce, Ruská and Vrbnica. The data gathered by the Ombudsperson also shows that in 2013, 2014 and the first quarter of 2015, the highest number of Action Code 100 raids (259) were carried out in the Prešov region, which has been identified as the region with the largest percentage of so-called “unintegrated Roma” in the Atlas of Roma Communities; in comparison, in the Bratislava region no Action Code 100 raids were carried out at all. The petitioners also argue that there is a lack of effective investigation into cases of police harassment of Roma in Slovakia. There are serious concerns about the independence and impartiality of the Inspectorate and the police forces, as both entities are within the same branch of the government and under the same ministry.8
- According to publicly available information (a report on the criminal activities of police officers), in 2016, only about 5 per cent of criminal cases registered by the Inspectorate were proposed for indictment; in the end, charges were brought in 5.8 per cent of cases. In 2015, the same figures were 5.4 per cent and 6.6 per cent respectively. The Inspectorate does not publish records of the number and nature of cases of possible racial motivation or of the outcome of criminal proceedings. ↩
Complaint
The petitioners claim a violation by the State party of their rights under articles 2 (1) (a) and (d), 5 (b) and 6 of the Convention.
Regarding the violation of article 2 (1) (a) and (d), the petitioners claim that the police raid forms part of a discriminatory practice of violent police raids and discriminatory policing in Slovakia. They argue that the authorities, including prosecutors and the Constitutional Court, did not investigate whether the raids were discriminatory or otherwise unlawful. Given that the raids form part of a discriminatory pattern, this also means that the authorities failed to end a violent pattern of racial discrimination.
The petitioners claim that they are victims of violence and bodily harm inflicted by police officers based on their Roma ethnic origin, breaching their rights under article 5 (b) of the Convention.
The petitioners allege that the way their case was handled by the investigating authorities and the Constitutional Court violates their right to effective protection and remedies under article 6 of the Convention. They further submit that prosecutors closed the matter for unknown reasons without even hearing evidence from the petitioners. They also argue that the Constitutional Court relied on three arbitrary grounds to dismiss their rights under article 6 of the Convention: (a) the two-month deadline started running before the petitioners’ lawyer had full access to the criminal file; (b) it would be inappropriate to review the way prosecutors handled complaints against the Department of Control and Inspection Service of the Ministry of Interior; and (c) the complaints submitted by the petitioners were too ambiguous.
State party’s observations on admissibility
On 25 February 2021, the State party submitted its observations on admissibility, requesting the Committee to hold the communication inadmissible as it believed that the petitioners had not exhausted all available domestic remedies.
The State party asserts that the petitioners did not submit their claims duly and timely, as required under article 14 (7) (a) of the Convention. The State party indicates that the petitioners’ lawyer referred for the first time to a law enforcement authority nine months after the police Action Code 100 raid took place.9 However, the petitioners’ lawyer did not include officially certified powers of attorney, which resulted in the postponement of the examination of the complaint. The State party argues that during the investigation various petitioners denied that the police had used violence. The State party also argues that those petitioners did not join the criminal proceedings. Only two of the petitioners stated that they had suffered damage and sought compensation through criminal proceedings. The State party asserts that the petitioners’ lawyer did not submit her power of attorney.
- Complaint of 20 May 2013. ↩
The State party argues that prior to the submission by the petitioners’ lawyer on 20 May 2013, the Inspectorate and the Department of Control of the Regional Directorate of the Police Force in Prešov had not received any complaints of or motions on possible unlawful conduct in relation to the police raids conducted on 24 August 2012. The State party argues that despite having been advised to submit a criminal complaint,10 the petitioners’ lawyer filed the second complaint again as a “complaint against the procedure of police force members”.
- Article 62 (1) of Act No 301/2005, Code of Criminal Procedure. ↩
The State party asserts that when a reasonable suspicion arises that a criminal offence has been committed by the police during their operations, petitioners should promptly report such misconduct to the law enforcement authorities. The latter can then investigate and if it turns out that criminal offences may have been committed, take appropriate action to prosecute the perpetrators. The State party notes that the right to gather evidence is vested in both the petitioners and the police authorities. The State party further submits that law enforcement authorities must elucidate equally the circumstances that support and cast into doubt allegations against the accused. This approach ensures that the court can make a fair and impartial judgment. Furthermore, the State party contends that the petitioners’ lawyer, in accordance with the act on free access to information, sought information from the relevant police units regarding the police raids. The State party considers that this request may have led to the obstruction of specific investigative measures.
The State party contends that no shortcomings or deficiencies were identified in the police investigation. The investigation was conducted under the supervision of the District Prosecutor’s Office in Kežmarok and inspected by superior prosecutors and the Office of the General Prosecutor of Slovakia.
The State party acknowledges that the petitioners’ lawyer submitted the complaint against the decision to discontinue the criminal proceedings in time. However, the lawyer failed to supplement the complaint, as promised in her submission dated 18 December 2015.The State party therefore believes that the petitioners did not appropriately avail themselves of this remedy.
The State party notes the irrelevance of the petitioners’ motion dated 18 April 2016, entitled “Application for annulment of the lawful decision within the procedure pursuant to article 363 (1) of the Code of Criminal Procedure as amended”. The State party contends that Slovak criminal legislation does not recognize such an extraordinary remedy against the decision to discontinue criminal proceedings.
The State party submits that, according to its legislation, a petitioner in proceedings before the Slovak Constitutional Court11 must be represented by a lawyer.12 Accordingly, a power of attorney must be attached to the complaint and specify that the petitioner empowers the selected lawyer to represent him or her before the Constitutional Court. In the present case, the State party submits that all three complaints13 submitted to the Constitutional Court by the petitioners were rejected for various procedural reasons, including non-compliance with the lawful requirements, absence of powers of attorney, vagueness and uncertainty of the motion of the constitutional complaints and undue delay in their submission.14
- Proceedings before the Constitutional Court of the Slovak Republic are regulated by Act No. 314/2018 on the Constitutional Court of the Slovak Republic and on amendment and supplementation of certain acts (hereinafter Act on the Constitutional Court). Proceedings on complaints of natural and legal persons are regulated in articles 32–73, read in conjunction with articles 122–135 of the Act on the Constitutional Court. ↩
- Article 34 of Act No. 314/2018. ↩
- The three constitutional complaints were submitted by the authors on 3 May 2016, 27 November 2017 and 19 March 2018. ↩
- In case of submission of a complaint once the lawful period of time has elapsed, under the Act on the Constitutional Court missing the deadline cannot be excused, as the mandatory provision of article 53 (3) of the Act does not allow it. ↩
The State party recalls that the petitioners submitted three complaints to the Constitutional Court alleging that their fundamental rights had been violated.15 The three complaints concern the decision, dated 30 October 2015, of the Department of Control and Inspection Service (file number CVS:SKIS-197/OISV-V-2013) and the decision, dated 18 January 2016, of the District Prosecution Office in Kežmarok (file number Pv 665/14/7703). The first constitutional complaint, submitted on 3 May 2016 under file number US 365/2016, was rejected primarily due to the fact that the complaint was submitted too late, after the two-month deadline prescribed by law had expired. The second constitutional complaint under file number US 767/2017, submitted by the petitioners on 27 November 20017, was rejected on 27 December 2017, due to the delay in submission. The third constitutional complaint under file number US 281/2018 was submitted to the Constitutional Court on 19 March 2018 and similarly rejected for late submission. The State party contends that since the three complaints submitted by the petitioners to the Constitutional Court were rejected on procedural grounds, mostly due to delayed submission, the petitioners have not effectively exhausted the domestic remedies available.
- According to articles 16 (1) and (2), 17, 19 (2), 21 and 46 (1) and (3), read in conjunction with article 12 (2), of the Constitution of the Slovak Republic; and articles 3, 5, 8, 13 and 14 of the European Convention on Human Rights and the regulations of the Ministry of the Interior. ↩
The State party further contends that in addition to their failure to exhaust the aforementioned remedies, the petitioners did not resort to remedies under civil law that are available pursuant to article 78 of Act No. 171/1993 on the police force, or by means of a suit pursuant to Act No. 514/2003 on liability for harm incurred in the exercise of public power and on amendment of certain acts. The petitioners could also have considered pursuing a defamation claim in accordance with article 11 of Act No. 40/1964 on the Civil Code. The State party deems these remedies effective, as it has argued in cases similar to the present one.16
- See, for example, European Court of Human Rights, Balaz and others v. Slovak Republic, Application No. 60243/00, Judgment, 28 November 2006; and Lampasova v. Slovak Republic, Application No. 43378/98, Judgment, 9 July 2002. ↩
The State party submits that its criminal law recognizes the principle of fault-based liability in relation to natural persons. On the other hand, pursuant to article 78 (5) of Act No. 171/1993 on the police force, the State is liable for damages arising from the actions of the police in relation to the performance of public service provided by this Act. According to this provision, as well as the provisions of Act No. 514/2003 on liability for damage incurred in the performance of public service by unlawful decision or an incorrect official procedure by the public authorities, it is possible to seek remedy of actual material or non-material damage from the State party. In the present case, the State party is represented by the Ministry of the Interior, which is liable for damage incurred as a result of actions or lack of action by the police. Establishing the fault of a particular person is not a condition for success in civil law proceedings launched against the State; liability for the damage incurred is based on objective grounds. At the same time, the courts adjudicating such civil claims can assess all the circumstances of an incident allegedly infringing petitioners’ rights and incurring damage. Pursuant to the provisions of Act No. 514/2003 on liability for damage incurred due to the performance of public service, the compensation for non-material damage is determined taking into consideration, inter alia, the gravity of the damage incurred and the circumstances under which it occurred. The State party contends that the petitioners have not pursued such civil remedies.
Petitioners’ comments on the State party’s observations
On 21 December 2021, the petitioners submitted their comments on the State party’s observations on admissibility.
The petitioners note that the authorities’ unwillingness to investigate their allegations was already obvious at the stage of the submission of the two complaints to the Inspectorate. They contend that the first complaint, dated 20 May 2013, included information about potential police misconduct during the police action that had been carried out in the villages of Stráne pod Tatrami, Podhorany and Huncovce, including reasonable suspicion that the intervening police might have committed several criminal offences. However, the authorities only considered the complaint under Act No. 9/2010 on complaints and not as a criminal complaint under Act No. 301/2005 on the Code of Criminal Procedure.
The petitioners believe that the second complaint did not include any new information of a kind that would make it differ from the first one. The petitioners therefore contend that criminal proceedings should have been triggered ex officio by the Inspectorate after the first complaint was submitted. Instead, the Inspectorate simply dismissed the submission on procedural grounds and did not investigate the police actions it challenged.
The petitioners submit that in its observations the State party did not address the fact that the first decision of the Inspectorate to reject the complaint was based solely on evidence gathered from the police without hearing any of the petitioners or witnesses of the raids. The investigating officer instead accused the petitioners’ lawyer and the European Roma Rights Centre of a conspiracy and fabrication. Furthermore, the decision was communicated to the petitioners only six months later. The petitioners further submit that the proper criminal proceedings started one year after the second complaint was filed, which can be considered an unreasonable and unsubstantiated delay. Until then, the Inspectorate collected only one-sided evidence in order to dismiss the complaints. In that phase of the investigation, the investigating officer further obstructed the petitioners’ access to justice by deciding not to notify their lawyer of the proceedings until 14 November 2014.
Concerning the proceedings before the Constitutional Court, the petitioners contend that after the Inspectorate decided to terminate the proceedings at the regional level, the investigating officer did not react to the phone calls and emails of the petitioners’ lawyer in which she requested the criminal file to study, in order to duly represent the interests of the petitioners. By ignoring the lawyer, the investigating officer ruined the chances of the petitioners taking their case to the Constitutional Court. The lawyer was only allowed to do so in April 2016, which led to a delay in filing the constitutional complaints. The petitioners also submit that the third constitutional complaint was submitted due to the fact that several elements of the actions of the police challenged by the petitioners (for example, inadequate planning and lack of necessity and proportionality) had not been dealt with by the investigating authorities. The final constitutional complaint was dismissed as ambiguous and manifestly ill-founded, as the Constitutional Court did not see any reason to review the Prosecutor General’s decision of 2 January 2018.
In reaction to the State party’s assertion that they did not exercise their claims duly and timely, the petitioners argue that the investigating authorities hindered their access to justice and remedies from the very beginning when the first complaint was submitted. After the dismissal of the first complaint, the second complaint was officially recognized and led to criminal proceedings with no involvement of the petitioners. They were not notified for six months of the decision to examine the second complaint and to initiate criminal proceedings. The petitioners argue that when the investigating officer finally began to hear the victims two years after the police actions took place, he did not notify their lawyer until months later. When the criminal proceedings were terminated, he did not allow the lawyer to study the case file and prevented her from supplementing her complaint against the Inspectorate’s decision and filing the constitutional complaint a timely manner. The petitioners further argue that the delays that occurred in the proceedings were due to the actions and inaction of the State party’s authorities.
The petitioners contend that contrary to the State party’s assertion that there was no previous mention of police misconduct, in August 2012, a Roma representative criticized repressive police actions in Roma communities and mentioned the police action in Stráne pod Tatrami as an example. Also, the investigating officer, in his decision to terminate the criminal proceedings, mentioned the fact that the Roma Media Centre inquired about the police actions via a freedom of information request. Regarding the delay in filing the complaint, the petitioners note that the first and the second complaints were dismissed due to statutory limitations. The petitioners request the Committee to consider the fact that they come from a marginalized community with a lack of knowledge of the law and of possible legal remedies. Thus, they relied on legal representation, which was secured only later with the financial support of the European Roma Rights Centre.
Regarding the State party’s argument that there is no legal basis for the extraordinary provision used by the petitioners on 18 April 2016,17 the petitioners assert that they wanted to turn to all bodies which had a supervisory role in criminal proceedings because they believed that the authorities had not properly investigated their allegations. The petitioners note that they also turned to the Constitutional Court and did not rely solely on the Prosecutor General.
- See paras. 2.10 and 4.7 above. ↩
In response to the State party’s argument that they should have exhausted all civil law remedies before submitting their complaint to the Committee, the petitioners recall that they turned to the Inspectorate twice with complaints which were based in both criminal law (Code of Criminal Procedure) and administrative law (Act on Petitions). The petitioners refer to the case law of the European Court of Human Rights, according to which it is sufficient for the exhaustion of domestic remedies that the applicant pursues a remedy which is not unreasonable and which can provide redress for the substance of his or her complaints.18 Once the applicant has exhausted such a remedy, they should not also be required to resort to others that were available but probably no more likely to be successful.19 The petitioners therefore disagree with the State party’s opinion of the use of civil law remedies.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, pursuant to article 14 (7) (a) of the Convention, whether the communication is admissible.
The Committee notes the State party’s argument that the petitioners have not exhausted available domestic remedies because they did not exercise their legal claims duly and timely, as required under article 14 (7) (a) of the Convention. The Committee also notes the State party’s argument that the petitioners’ counsel initiated a complaint for the first time to a law enforcement authority nine months after the police raid Action Code 100 took place in Kežmarok on 24 August 2012, that the submissions did not include certified powers of attorney and that this procedural failure led to the postponement of the complaint. The Committee further notes that the State party asserts that the petitioners’ counsel did not follow the authorities’ recommendation to submit a criminal complaint in relation to the police raid. The Committee also notes the petitioners’ argument that even though there is a suspicion that the intervening police might have committed several criminal offences, the authorities only considered the complaint without taking into account the criminal nature of the facts. The Committee further notes that the petitioners were requested to submit a second complaint to raise the criminal aspects of the case and that the second complaint was identical to the first one and, therefore, that criminal proceedings should have been triggered by the authorities ex officio.
The Committee notes the State party’s argument that the petitioners submitted their complaint to the Inspectorate nine months after the Action Code 100 police operation took place. The Committee notes, however, that the State party has not presented an argument as to why this delay would lead to the conclusion that the petitioners had not duly exhausted the domestic remedies available and would therefore raise an issue as to the admissibility of the communication. Moreover, the Committee observes that the petitioners submit that the criminal investigation started one year after the second complaint was filed, which can be considered an unreasonable and unsubstantiated delay. In that regard, the Committee reiterates the importance of effective and timely investigations in cases of allegations of racial discrimination and in particular violence.20 Furthermore, the Committee points out that the public authorities of the State party are obliged to undertake investigations ex officio when they obtain knowledge of the possible occurrence of incidents of racial discrimination. Against this background, the Committee notes with concern that according to the information presented by the petitioners, there were severe irregularities in the initial phase of the investigation of the incidents that took place on 24 August 2012, including a delay in starting the investigation, shortcomings in the collection of evidence and a lack of engagement with and provision of information to the petitioners about the steps taken by the Inspectorate and the State authorities. The Committee is further concerned that these irregularities may be the result of a lack of independence of the Inspectorate, which was an issue of concern for the Committee during the dialogue that took place with the State Party in 2022.21 Against this background, the Committee sees no reason why the fact that the petitioners submitted the first complaint to the public authorities of the State Party only nine months after the incident took place would lead to the inadmissibility of their communication.
The Committee notes the State party’s contention that the petitioners did not resort to the remedies available under civil law. The Committee further notes the State party’s contention that the courts adjudicating such civil claims can assess all the circumstances of an incident interfering with individual rights and that therefore the petitioners should have explored this avenue before turning to the Committee. The Committee also notes the petitioners’ argument that they referred to the Inspectorate twice with one criminal and one administrative complaint and that the condition of exhaustion of local remedies is met if an applicant pursues a remedy which is reasonable and can provide redress for the substance of the complaint.22
- For example, Mader v. Croatia, para. 87. ↩
The Committee observes that the State party does not contest the claim that the petitioners filed a criminal and administrative complaint before the Inspectorate, filed complaints with the prosecutors’ offices and then turned to the Constitutional Court, which issued a final decision. The Committee observes that the remedies sought by the petitioners could have provided redress for the substance of their complaint.23 Furthermore, the Committee finds that the facts of the claim were of such a nature that criminal remedies would constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil remedies of the kind proposed by the State party. The Committee therefore finds that no other effective remedies were available to the petitioners.24
The Committee notes the State party’s argument that the three complaints submitted by the petitioners to the Constitutional Court were rejected on procedural grounds, including the absence of powers of attorney, the vagueness and uncertainty of the motions submitted and, above all, delayed submissions. The Committee further notes the petitioners’ argument that the delay in filing the constitutional complaint was due to the actions and inaction of the State party’s authorities. The Committee notes the petitioners’ request for consideration of the fact that they come from a marginalized community with a lack of legal knowledge and of possible legal remedies and that they relied on the legal representation recently secured by the European Roma Rights Centre. The Committee acknowledges the challenges and hindrances that members of marginalized communities experience with regard to access to justice. The Committee reiterates the importance of accessible legal avenues for individuals and groups that are vulnerable to racial discrimination. The Committee also reiterates the obligation of States to ensure adequate and effective access to justice and to take concrete measures to address shortcomings in this regard. In that context, the Committee also refers to its concerns under the reporting procedure regarding the implementation of the Anti-Discrimination Act by the State party, in particular concerning Roma.25 The Committee however notes that the petitioners were duly represented by a lawyer, who provided them with the necessary assistance during the proceedings, including with regard to their complaints before the Constitutional Court. The Committee therefore considers that the petitioners’ argument based on their lack of legal knowledge and their social conditions cannot absolve them from the obligation to comply with the procedural requirements of the State party’s legal system. The Committee holds that the petitioners have not demonstrated that the legal requirements for a complaint to the Constitutional Court impaired their rights to a fair trial or led to an act of discrimination.
- CERD/C/SVK/CO/13, paras. 6–7. See also, with regard to Roma in general, general recommendation No. 27 (2000), para. 7. ↩
The Committee recalls that a remedy that is not exercised in due time cannot be considered as exhausted and that “any appellant must display reasonable diligence in the pursuit of available remedies”.26 In the present case, the Committee observes that in relation to the police raids the petitioners submitted three complaints to the Constitutional Court on 3 May 2016, 27 November 2017 and 19 March 2018. The Committee also observes that the petitioners do not contest the State party’s argument that the Constitutional Court rejected the petitioners’ complaints due to their late submission. On the basis of the information provided by the petitioners and by the State party, the Committee must conclude that according to the domestic law of the State party, a complaint to the Constitutional Court must be submitted within two months after the decision that is the subject of the complaint has been issued.27 The Committee notes that, according to the information submitted, the complaint to the Constitutional Court was directed against the decision of the District Prosecutor’s Office of 18 January 2016, which the petitioners’ lawyer received on 3 February 2016. Accordingly, and as has been held by the Constitutional Court, the complaint submitted to the Constitutional Court on 3 May 2016 was not submitted within the two-month time limit. The Committee furthermore notes that there is no indication that the petitioners also directed their claim against the action or inaction of the Prosecutor General’s Office in reaction to their submission of 18 April 2016. The Committee notes that, according to the State party, that submission was inadmissible, since the legal order of the State party does not recognize such an extraordinary remedy. The Committee furthermore notes that the Constitutional Court did not find that the submission of 18 April 2016 was of relevance to the question as to whether the two-month limit had been exhausted. In the absence of any information to the contrary, the Committee sees no reason to question this assessment by the State party and by the Constitutional Court.
- N.A.J. v. Jamaica, communication No. 246/1987, para. 10.3. See also A.P.A. v. Spain, (CCPR/C/50/D/433/1990), para. 6.2, and Jagjit Singh Bhullar v. Canada (CCPR/C/88/D/982/2001), para. 7.3. ↩
- According to para. 124 of the Law of 24 October 2018 on the Constitutional Court of the Slovak Republic, amending and supplementing certain other laws, “a constitutional complaint may be filed within two months from the day on which the decision became final, the communication of the measure or the notification on other intervention” (https://www.ustavnysud.sk/documents/10182/0/314_2018_Law+CC+-+Slovakia.pdf/65fda308-73b4-40f9-bea7-8ff4205cfead). ↩
The Committee notes the petitioners’ claim that they were only given access to the case file concerning the investigation on 11 and 18 April 2016. The petitioners therefore argue that the two-month time limit should have started from the moment they were able to access the case file. The Committee notes that, according to the information submitted, the two-month time limit under the domestic law of the State party starts on the adoption of the measure which is contested before the Constitutional Court. While the Committee emphasizes that access to information is of importance for the effective implementation of the right to access to justice and an effective remedy against human rights violations, and instances of racial discrimination in particular, it fails to see why the petitioners were not in a position to file a constitutional complaint in time without having access to the case file of the investigation. The Committee notes that the petitioners do not explain in what way the absence of access to the case file prevented them from exercising their right to appeal. According to the information submitted, the decisions of the Inspectorate and the prosecutor’s office to discontinue the investigation into the conduct of the police officers were clear and reasoned. The petitioners point out how far they regard the measures taken by the Inspectorate and the prosecutors to be insufficient. They refer, inter alia, to the delay in taking up the investigation, deficits in the collection of evidence and a lack of engagement with and provision of information to them. The petitioners have not indicated what further information they would have needed in order to assess whether to lodge a constitutional complaint. The Committee, therefore, concludes that the belated access of the petitioners’ lawyer to the case files did not absolve them from submitting their constitutional complaint in time.
The Committee furthermore notes that the petitioners’ lawyer only submitted the power of attorney to the Constitutional Court on 27 June 2016, that under the domestic law of the State party a constitutional complaint must be lodged by a lawyer and that the absence of a power of attorney is an additional ground for rejecting a constitutional complaint. Even assuming that the two-month time limit had only started when the petitioners’ lawyer had access to the case file on 11 and 18 April 2016, the submission of the power of attorney on 27 June 2016 would have been after the two-month time limit had expired.
In light of the above, the Committee considers that the petitioners have not exhausted domestic remedies, as required by rule 91 (e), of its rules of procedure. Accordingly, it declares the communication inadmissible under article 14 (7) (a) of the Convention.
The Committee on the Elimination of Racial Discrimination therefore decides: (a) That the communication is inadmissible;