CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;PANELREFUSALS;ENG — 14 décembre 2020

.s800EAC49 { font-size:12pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s6E03D265 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sDB281891 { margin-top:14pt; margin-bottom:3pt; text-indent:14.2pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s35D4F984 { width:25.77pt; display:inline-block } .s5D2B5F49 { width:163.5pt; display:inline-block } .s5F6224 { width:11.1pt; display:inline-block } .s1BDF1E97 { width:160.51pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s7C768949 { font-family:Arial; text-decoration:underline; color:#0000ff }     PANEL OF THE GRAND CHAMBER DECISION on a request for an advisory opinion under Protocol No. 16 concerning the interpretation of   Articles 2, 3 and 6   of the Convention Request by the Supreme Court of the Slovak Republic (Request no. P16-2020-001)             STRASBOURG 14 December 2020     The European Court of Human Rights, sitting as a Panel of the Grand Chamber under Article 2 § 1 of Protocol No. 16, composed of:   Robert Spano, President,   Paul Lemmens,   Síofra O’Leary,   Mārtiņš Mits,   Alena Poláčková, judges, and Søren Prebensen, Deputy Grand Chamber Registrar , Having deliberated in private on 14 December 2020 and 8 February 2021, Decides as follows: PROCEDURE 1.     In a letter of 25 September 2020 received by the Registrar of the European Court of Human Rights (“the Court”) on 5 October 2020, the Supreme Court of the Slovak Republic (“the Supreme Court” or “the requesting court”) requested the Court, under Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 16”), to give an advisory opinion on the question set out at paragraph 2 below. On 19 November 2020 the Supreme Court provided further materials and explanations, supplementary information having been requested by the Court, with reference to paragraphs 14 and 18 of the Guidelines on the Implementation of the advisory opinion procedure introduced by Protocol No. 16 to the Convention (“the Guidelines”). The request was consequently deemed to have been lodged on the latter date. THE QUESTION ASKED 2 .     The requesting court submitted the following question: “Do procedural actions in criminal proceedings and evidence gathered by agents of the Inspection Service of the Ministry of the Interior, who are directly subordinate in personal and functional terms to the Minister of the Interior, provide evidence and a basis for the lawful, independent and impartial prosecution of officers of the Police Force who are likewise subordinate to him (the Minister of the Interior), in particular for lawful and fair proceedings before a court, including the court’s decisions as such, in the light of the guarantees provided by Articles 2 § 1, 3 and/or 6 § 1 of the Convention?” THE BACKGROUND AND THE DOMESTIC PROCEEDINGS 3.     The request for an advisory opinion is made in the context of criminal proceedings instituted by the domestic authorities against I.E., a police officer, who was alleged to have physically attacked a woman in July 2014. At the pre-trial level, the investigation was carried out by the Inspection Service of the Ministry of the Interior, which is the body tasked with investigating suspicions against members of the Police Force and similar services. After the Inspection Service opened a criminal prosecution and charged the defendant on 19 August 2014 with the offences of disorderly conduct and bodily harm, its investigators gathered extensive evidence, mainly interviews with the persons involved and numerous witnesses, as well as several expert reports. The investigation was supervised by a district prosecutor’s office which, on an application by the Inspection Service, filed an indictment against the defendant on 23 July 2015. 4 .     Consequently, the criminal case was referred for trial to the Komárno District Court, which, by a judgment of 23 April 2018, found the defendant guilty of disorderly conduct and bodily harm and sentenced him to a financial penalty of 1,000 euros. On 7 November 2018 the defendant had his appeal dismissed by the Nitra Regional Court. He challenged that judgment by means of an appeal on points of law lodged with the Supreme Court. 5 .     In its request, the Supreme Court submitted that the defendant had raised two lines of argument before the domestic courts. First, he argued that the Inspection Service of the Ministry of the Interior had been set up unlawfully because it was not part of the Police Force but was a unit attached and subordinate to the Minister, and thus under direct political influence. Second, he submitted that since the Inspection Service was not a structure within the Police Force, it lacked competence under the Code of Criminal Procedure to engage in the investigation, which was why all actions taken by the Inspection Service in his case were null and void and why the evidence gathered could not be used in the criminal proceedings. 6 .     According to the requesting court, there was also a question as to whether the status of the Inspection Service was in compliance with the Convention requirement of an effective investigation, which implied that the investigation had to be independent and impartial. 7 .     Since both the Inspection Service and the investigated police officer belong to the structures of the police, under the authority of the Minister of the Interior, the requesting court questions whether the Inspection Service is sufficiently independent. The request emphasises the importance of fair-trial guarantees as early as the pre-trial stage of the proceedings (citing Imbrioscia v. Switzerland , 24 November 1993, § 36, Series A no. 275; Berliński v.   Poland , nos. 27715/95 and 30209/96, § 75, 20 June 2002; and Adamkiewicz v. Poland , no. 54729/00, § 82, 2 March 2010). It further relies on the judgments in Eremiášová and Pechová v. the Czech Republic (no. 23944/04, 16 February 2012); Kummer v. the Czech Republic (no. 32133/11, 25 July 2013); Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, ECHR 2007 ‑ II), and other case-law and material concerning the effectiveness of an investigation and, in particular, the requirement for an investigation to be independent for the purposes of Articles 2 and 3 of the Convention. 8.     In the present case, the requesting court referred to the two issues it discerned in the defendant’s arguments (see paragraph 5 above), one concerning the institutional lawfulness of the Inspection Service, and the other concerning the role it played in the criminal proceedings, viewed in the light of the requirements relating to an effective investigation under the Convention, in particular those of independence and impartiality. 9.     As to the former issue, the Supreme Court referred to the unifying opinion no. Tpj 62/2015 issued by its Criminal Law Bench on 29 September 2015, stating inter alia that the Inspection Service had been set up lawfully and that the members of that service were police officers authorised to engage in criminal prosecutions under the Code of Criminal Procedure. 10 .     With regard to the effectiveness of the investigation, the requesting court considered that that issue had not been resolved by the unifying opinion and stated that it harboured “serious doubts that the ... Inspection Service ... meet[s] the criteria laid down by the Convention for an independent authority designated for the investigation of crimes committed by police officers”. RELEVANT CRITERIA 11 .     The Court reiterates that, as follows from the Preamble to Protocol   No.   16, the object and purpose of the advisory-opinion procedure is to further enhance the interaction between the Court and national authorities and thereby reinforce the implementation of the Convention, in accordance with the principle of subsidiarity. The aim of the procedure is not to transfer the dispute to the Court, but rather to give the requesting court guidance on Convention issues when determining the case before it (see   Advisory   opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother , requested by the French Court of Cassation , no. P16-2018-001, §   25, 10 April 2019 (“ Advisory opinion P16 ‑ 2018-001 ”), and Advisory opinion concerning the use of the "blanket reference" or "legislation by reference" technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law , requested by the Armenian Constitutional Court , no. P16-2019-001, § 43, 29   May 2019 (“ Advisory opinion P16-2019-001 ”)). 12 .     Under Article 1 § 1 of Protocol No. 16, designated highest courts or tribunals may request the Court to give advisory opinions on “questions of principle relating to the interpretation and application of the rights and freedoms defined in the Convention or the Protocols thereto”. Pursuant to Article 1 § 2 of Protocol No. 16, a highest court or tribunal may do so “only in the context of a case pending before it”. Article 1 § 3 of Protocol No. 16 requires the requesting court to give reasons for its request and to provide the relevant legal and factual background for the pending case. 13.     Article 2 § 1 of Protocol No. 16 provides that “[the] panel [of the Grand Chamber] shall decide whether to accept a request for an advisory opinion, having regard to Article 1”. The Explanatory Report to Protocol   No.   16 [1] specifies that “the panel must give reasons for any refusal to accept a domestic court or tribunal’s request for an advisory opinion. This is intended to reinforce dialogue between the Court and national judicial systems, including through clarification of the Court’s interpretation of what is meant by ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’, which would provide guidance to domestic courts and tribunals when considering whether to make a request and thereby help to deter inappropriate requests.” 14.     In the instant case, the Court [2] is thus called upon to examine whether the request fulfils the above-mentioned requirements set out in Article 1 of Protocol No. 16 and to decide whether or not the request is to be accepted for examination by the Grand Chamber (Article 2 of Protocol No. 16 and Rule   93 of Chapter X of the Rules of Court). The COURT’s assessment 15.     The request for an advisory opinion comes from the Supreme Court of Slovakia, which is one of the highest courts designated by Slovakia under Article 10 of Protocol No. 16. In addition, as the present request arises from proceedings concerning an appeal on points of law, the conditions of Slovakia’s declaration in connection with the ratification of the Protocol – namely, that “the Supreme Court of the Slovak Republic possess[es] the powers arising from this Protocol only when acting as a court of cassation or as a court of appeal on points of law” – are fulfilled. 16.     The Court also observes that the present request for an advisory opinion is related to domestic criminal proceedings in which the defendant was convicted as charged at first instance and that his appeal was dismissed at second instance. Thus, the request made by the Supreme Court of Slovakia originates in pending domestic proceedings currently being heard by that court (see paragraphs 4-10 above). 17.     The next requirement set by Article 1 § 1 of Protocol No. 16 is that the request for an advisory opinion should concern a “question of principle relating to the interpretation or application of the ... Convention”. In this connection, the Court observes that the question of principle must be considered by the requesting court or tribunal to be necessary for its adjudication of the case (see paragraph 6.2 of the Guidelines). 18.     The Court has already pointed out that the aim of the advisory procedure is not to transfer the dispute to the Court, but rather to give the requesting court or tribunal guidance on Convention issues when determining the case before it (see paragraph 11 above and paragraph 11 of the Explanatory Report). The Court has no jurisdiction either to assess the facts of a case or to evaluate the merits of the parties’ views on the interpretation of domestic law in the light of Convention law, or to rule on the outcome of the proceedings.   The Court has further inferred from Article 1 §§ 1 and 2 of Protocol No. 16 that the opinions it delivers under this Protocol “must be confined to points that are directly connected to the proceedings pending at domestic level” (see Advisory opinion P16-2018-001 , § 26). It should also be reiterated that the advisory-opinion procedure is not intended to allow for an abstract review of legislation (see paragraph 10 of the Explanatory Report); nor can the Court deal with questions of Convention law that are abstract and general in nature, thus going beyond the scope of an advisory opinion as envisaged in Protocol No. 16 (see Advisory opinion P16-2019-001 , § 55). 19.     In the present case, what is at stake in the proceedings pending before the Supreme Court is essentially the fairness of the defendant’s trial from the angle of Article 6 § 1 of the Convention. However, the Court notes that the request is mainly based on and formulated with reference to the Court’s case-law relating to Articles 2 and 3 of the Convention and the requirements of an effective investigation thereunder. There is no indication in the domestic procedural background or the arguments of the parties to the domestic proceedings, as described in the request, of any reliance on rights under Articles 2 and 3 on the part of the defendant or any other person. Therefore, in so far as the request concerns the interpretation of Articles 2 and 3, it does not appear related to points that are directly connected to proceedings pending at domestic level for the purposes of Article 1 §§ 1 and 2 of Protocol No. 16 (see Advisory opinion P16-2018-001 , § 26). 20.     The primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, although the guarantees of Article 6 may also be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them. The question to be answered is in this context whether the proceedings as a whole were fair (see, among many other authorities, Gäfgen v. Germany [GC], no.   22978/05, § 163, ECHR 2010; Dvorski v. Croatia [GC], no. 25703/11, §§   76, 79 and 81, ECHR 2015; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 253-54, 13 September 2016). 21.     Article 6 requires that the court called upon to determine the merits of a charge be independent of the legislature and the executive, and of the parties (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §   221, 14   April 2015). 22.     Apart from the principles established by the above-mentioned case-law of the Court, the Court considers it noteworthy that in the unifying opinion no. Tpj 62/2015 issued by its Criminal Law Bench on 29 September 2015, the requesting court itself made a distinction between the fairness of the criminal proceedings from the point of view of the defendant and the effectiveness and independence of the investigation from the point of view of the victim. In doing so, the Supreme Court emphasised in particular that the guarantee of independence provided to the defendant by a court was unavailable to the victim if the case did not reach the stage of a judicial examination on the merits (as rendered in R.R. and R.D. v. Slovakia , no.   20649/18, §§ 113-17, 1 September 2020). In the Court’s view, by finding in the above-mentioned opinion that what was essential for the defendant’s fair-hearing rights to be secured in criminal proceedings was the independence of the trial court, the Supreme Court provided relevant indications as to the answer to the question now submitted to the Court. CONCLUSION 23.     In view of the above, the Court considers that the questions raised in the present request for an advisory opinion, on account of their nature, degree of novelty and/or complexity or otherwise, do not concern an issue on which the requesting court would need the Court’s guidance by way of an advisory opinion to be able to ensure respect for Convention rights when determining the case before it. 24.     In such circumstances, the Court considers that the present request for an advisory opinion does not meet the requirements of Article 1 of Protocol No. 16 as set out in paragraph 12 above. It accordingly decides not to accept the request. For these reasons, the Court, by a majority, Decides not to accept the request. Done in English and translated into French, and notified in writing on 1   March 2021.   Søren Prebensen   Robert Spano   Deputy to the Registrar   President   [1] See Explanatory Report to Protocol No. 16 , § 15. [2] As defined in Rule 1(h) of the Rules of Court.