ECHR advisory opinion. Rejection of a request by the Supreme Court of Slovakia by the Court.
DECISION FOR REQUEST FOR AN ADVISORY OPINION OF THE SUPREME COURT OF SLOVAKIA of 01.03.2021 (no. P16-2020-001) – GRAND CHAMBER
SUMMARY
The European Court of Human Rights has decided not to accept a request (no. P16-2020-001) for an
advisory opinion submitted by the Supreme Court of Slovakia on 19 November 2020. The decision is
final.
In its request, the Supreme Court of Slovakia asks the European Court of Human Rights to provide an
advisory opinion on whether the Inspection Service of the Ministry of the Interior was Conventioncompliant, in particular as regards independence, for investigations of police officers.
The request was rejected because the question raised did not concern an issue on which the
requesting court would need the Court’s guidance to be able to ensure respect for Convention rights
when determining the case pending before it.
PROVISION
Article 1 of the 16th Additional Protocol
PRINCIPAL FACTS
The request for an advisory opinion was introduced on 19 November 2020.
The Supreme Court stated that its request was made in the context of criminal proceedings brought
against a police officer, I.E., following allegations that he had assaulted a woman in 2014. The
investigation had been carried out by the Inspection Service of the Ministry of the Interior, the body
responsible for investigations allegations against the police and security services. On 19 August 2014
I.E. had been charged with disorderly conduct and bodily harm and indicted on 23 July 2015. The
domestic courts at two levels had found him guilty of the charges and sentenced him to a 1,000
euros (EUR) fine.
In 2019 I.E. had brought an appeal on points of law against his conviction for causing bodily harm
and disorderly conduct before the Supreme Court. He contested in particular the fact that the
investigation into his case had been carried out by the Inspection Service of the Ministry of the
Interior.
In its questions, the Supreme Court asked for guidance from the European Court on whether the
Inspection Service met the criteria laid down by the European Convention on Human Rights under
Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment) and Article 6 § 1
(right to a fair trial) concerning the investigation of crimes committed by police officers, in particular
that such investigations had to be carried out by an independent and impartial authority, and its role
in the trial in question.
Slovakia is the third country to seek such an opinion under Protocol No. 16 to the European
Convention on Human Rights.
The French Court of Cassation made the first request in October 2018 and the Court delivered its
opinion, on rights related to surrogacy, in April 2019. The Armenian Constitutional Court made the
second request in August 2019, concerning an Article of the country’s Criminal Code, which
penalises the overthrowing of the Constitutional order, and the Court delivered its opinion in May
2020. In those two cases, the scope of the case and the questions to be answered were determined
by the Grand Chamber. The Supreme Administrative Court of Lithuania submitted a request inNovember 2020 concerning the current legislation on impeachment in that State, which was at issue in a case pending before the courts.
THE DECISION OF THE COURT…
The Court had to decide whether the request met the criteria set out in Article 1 of Protocol No. 16
to the Convention. Among other requirements, a request had to concern “questions of principle
relating to the interpretation and application of the rights and freedoms defined in the Convention
or the Protocols thereto” and pertain “only in the context of a case pending before [the requesting
court]”. The Court had to provide reasons for any rejection.
The Court reiterated that, as followed from the Preamble to Protocol No. 16, the object and purpose
of the advisory-opinion procedure was 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. It furthermore reiterated that it had no jurisdiction to assess the
facts of the case, the purpose of the opinion being to give guidance rather than taking the case from
the domestic system and that it had to confine its opinion “to points that are directly connected to
the proceedings pending at domestic level”.
The Court noted that the points raised only concerned the fairness of the defendant’s trial – relevant
for Article 6 and not Articles 2 and 3. Regarding the domestic proceedings, the Court stated that the
vital question was whether they as a whole were fair. In particular, for Article 6 purposes, a court
had to be independent of the legislature, the executive and the parties.
The Court considered it noteworthy that in a previous unifying opinion (no. Tpj 62/2015) the
requesting court had issued in 2015, it had found 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”. 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 had provided relevant indications as to the
answer to the question now submitted to the Court.
The Court considered 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, did not concern an issue
on which the requesting court would need the Court’s guidance to be able to ensure respect for
Convention rights when determining the case pending before it.
The Court thus ruled that this request for an advisory opinion did not meet the requirements of
Article 1 of Protocol No. 16
