TOROMAG, S.R.O. A OSTATNÍ proti Slovensku

FIRST SECTION

DECISION

Application no. 41217/20
TOROMAG, S.R.O. against Slovakia
and 4 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 28 June 2022 as a Committee composed of:

Péter Paczolay, President,
Alena Poláčková,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the five applications against Slovakia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table, by the applicants listed therein (“the applicants”) who were represented by Mr B. Fridrich, a lawyer practising in Bratislava;

the decision to give notice of the applications to the Government of the Slovak Republic (“the Government”) represented by their Agent, Ms M. Bálintová;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applications concern the alleged unlawfulness of the measures taken by the Public Health Authority (Úrad verejného zdravotníctva – “PHA”) of Slovakia in the context of prevention of the spreading of the Covid-19 virus in the period from 15 March 2020 until 19 May 2020. The applicants are the owners of fitness centres which were closed by virtue of the aforementioned measures. They allege having incurred pecuniary damage and loss of future income as well as having lost some clientele.

2. Relying on Article 1 of Protocol No. 1 to the Convention the applicants complained that the impugned measures had not fulfilled the requirements of lawfulness, in particular since in the given legal regime the power to adopt them rested with the Government and not the PHA and that it had not been possible to challenge them before the domestic courts, including the Constitutional Court.

THE COURT’S ASSESSMENT

3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

4. The Government submitted, inter alia, that the applications had constituted an abuse of the right of individual application, as the applicants had not informed the Court that on 22 July 2020, they had lodged constitutional complaints challenging the PHA’s measure no. OLP/4083/2020 of 19 May 2020 and that, on 19 May 2021, the constitutional complaint of the fourth applicant had been rejected as inadmissible for lack of jurisdiction (I. US 210/2021). Moreover, four of the applicants had failed to inform the Court that they had received financial aid from public funds to mitigate the financial losses caused by the compulsory closure or limitation on their business operations.

5. The applicants responded that their constitutional complaints had been directed only against one of the PHA’s measures and that they had been based on different complaints than their applications before the Court. Meanwhile, on 2 June 2021, the Constitutional Court had rejected also the first applicant’s constitutional complaint (II. US 289/2021), essentially on the same ground as the complaint of the fourth applicant (lack of the Constitutional Court’s jurisdiction). As regards the financial aid, the applicants submitted that they had deducted it from the amount of their just satisfaction claims before the Court.

6. The Court reiterates that an application may be rejected as an abuse of the right of individual application, if, among other reasons, it was knowingly based on false information or if significant information and documents were deliberately omitted either where they were known from the outset or where new significant developments occurred during the proceedings (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, and VAŠA Slovensko, s.r.o v. Slovakia (dec.) [Committee], no. 40925/17, § 4, 22 February 2022, with further references).

7. Turning to the present case, the Court notes that the applications were introduced several months after the applicants had lodged their constitutional complaints (see paragraph 4 above). Nevertheless, in their applications, the applicants explicitly stated that they had been unable to have the impugned measures reviewed by the domestic courts, including the Constitutional Court. Moreover, they failed to inform the Court of this circumstance and of the subsequent outcome of the constitutional proceedings despite being specifically advised of the duty to keep the Court informed of all relevant new developments in the Registry’s letter of 10 March 2021 and the fact that the applications were communicated on 5 December 2020.

8. In this context, the Court finds it relevant that all the applicants were domestically as well as before the Court represented by a lawyer (see, mutatis mutandis, Buzinger v. Slovakia (dec.), no. 32133/10, § 23, 16 June 2015) and that this lawyer must be well aware of the Court’s procedures, since he represented applicants before the Court in the past (see Framipek s.r.o. and Agroracio Senica, a.s. v. Slovakia [Committee], nos. 51894/14 and 52073/14, 28 January 2020, as well as, for example, POHOTOVOSŤ, s.r.o. v. Slovakia, no. 53841/13, rejected in a single-judge formation as having amounted to abuse of the right of individual application). Nevertheless, it was only in response to the Government’s observations that the representative acknowledged the constitutional complaints’ existence, but he included no relevant explanation for the failure to respect the Rules of Court (see VAŠA Slovensko, s.r.o, cited above, § 5). He also did not provide any information as to the current state or outcome of the constitutional complaints lodged by the second, third and fifth applicants.

9. Lastly, the Court does not agree with the applicants’ argument that the information in question did not concern the core of the case, as the question of whether the measures were reviewable by the Constitutional Court, or any other court is directly related to the complaints made by the applicants. Moreover, the constitutional complaints were directed against one of the PHA’s measures challenged also before the Court, invoked Article 1 of Protocol No. 1 to the Convention and contained almost identical legal argumentation. Additionally, the financial aid granted to the applicants from public funds is directly linked to the question of any possible significant disadvantage suffered by the applicants as well as to the proportionality of the impugned measures.

10. The Court reiterates that lawyers must understand that, having due regard to the Court’s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it from the introduction of unmeritorious complaints and, once proceedings have been instituted, then meticulously abide by all the relevant rules of the procedure and urge their clients to do the same (see Bekauri v. Georgia (preliminary objection), no. 14102/02, § 24, 10 April 2012). Otherwise, the wilful or negligent misuse of the Court’s resources may undermine the credibility of lawyers’ work in the eyes of the Court and may even, if it occurs systematically, result in particular individual lawyers being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see Stevančević v. Bosnia and Herzegovina (dec.), no. 67618/09, § 29, 10 January 2017).

11. The Court thus concludes that the applicants deliberately withheld significant information and documents known from the outset and failed to inform it about new significant developments that occurred during the proceedings.

12. In view of the foregoing the applications are inadmissible for their abusive nature. Accordingly, they must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

13. The above conclusion is without prejudice to the assessment of the Government’s objection of inadmissibility of domestic remedies, in particular an administrative-law action under Article 177 of the Code of Administrative Judicial Procedure, combined with a constitutional complaint (see Constitutional Court’s decisions of 24 September 2020 cases nos. I. US 437/2020, I. US 432/2020, I US 433/2020, I US 435/2020, II. US 410/2020, II. US 412/2020, IV US 459/2020 and IV. US 460/2020 and of 8 October 2020, case no. II. US 454/2020).

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 25 August 2022.

Liv Tigerstedt Péter Paczolay
Deputy Registrar President

Appendix