Published on 19 June 2023

FIRST SECTION

Application no. 34483/21 LYŽIARSKY KLUB BABA - PEZINOK against Slovakia lodged on 1 July 2021 communicated on 30 May 2023

SUBJECT MATTER OF THE CASE

The applicant is a private association incorporated in Slovakia for the sole purpose of seasonal operation of ski lifts (as opposed to gondola lifts) in a resort near Bratislava. It complains of limitations on its operations imposed by way of decrees ( vyhláška ) adopted by the Public Health Authority ( Úrad verejného zdravotníctva – “PHA”) of Slovakia for the period from 1 January to 18 April 2021, in response to the spreading of the Covid-19 virus. In particular, the applicant association was prevented from operating its lifts which, in its submission, resulted in pecuniary damage significantly greater than any financial support received by the applicant association from public funds later.

An amendment (Law no. 286/2020 Coll.) to the Public Health Protection and Development Act (Law no. 355/2007 Coll.) adopted with effect from 15 October 2020 provided specifically that, due to their nature, the decrees in question fell within the category of “generally binding legal regulation” (section 59b(1) of the amended Act).

However, in response to an individual complaint by the applicant association, the Constitutional Court held (case no. III. ÚS 291/21) that even though the decrees had been labelled as generally binding legal regulations, in respect of which no judicial review was available, they in fact constituted administrative measures of a hybrid nature reviewable by the administrative judiciary. Under the subsidiarity principle, this excluded the Constitutional Court’s jurisdiction. The applicant association’s complaint was thus inadmissible.

The applicant association alleges a violation of its rights under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 in that the PHA had no power to impose the limitations it did and in that such limitations were unpredictable and posed an excessive individual burden on it. Furthermore, the alleged interference with the applicant association’s property rights was not accompanied with any procedural guarantees and the applicant association was denied access to court and an effective remedy in respect of it. On the point last mentioned, the applicant association argues that, at the time of its constitutional complaint, there was no jurisprudence demonstrating the position taken by the Constitutional Court in his case and that, at the time of its decision, the time-limit for resorting to the administrative judiciary had already elapsed.

QUESTIONS TO THE PARTIES

1. Having regard to the Constitutional Court’s position taken in the case of the applicant association, as well as the applicable statutory rules and other jurisprudence, such as section 59b(1) of the Public Health Protection and Development Act (Law no. 355/2007 Coll., as amended by Law no. 286/2020 Coll.) and the Constitutional Court’s decision in case no. IV. US 249/21 and its judgment in case no. PL. US 8/21, has the applicant association exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Did the applicant association have access to court for the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Has there been an interference with the applicant association’s right to the peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, did it fulfil the requirements of lawfulness under that Article? Among other aspects, was it accompanied by procedural safeguards inherent in that provision (see Capital Bank AD v. Bulgaria , no. 49429/99, §§ 133-34, ECHR 2005 XII (extracts))?

4. Did the applicant association have at its disposal an effective domestic remedy for its complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?