HAŠČÁK v. SLOVAKIA

FIRST SECTION

DECISION

Applications nos. 13284/22 and 12127/23
Jaroslav HAŠČÁK
against Slovakia

The European Court of Human Rights (First Section), sitting on 24 September 2024 as a Chamber composed of:

 Ivana Jelić, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Lətif Hüseynov,
 Péter Paczolay,
 Gilberto Felici,
 Alain Chablais, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to the above applications lodged on 4 March 2022 and 15 March 2023 respectively,

Having regard to the decision of 15 May 2023 to give notice to the respondent Government of the complaints under Articles 8, 13 and 18 of the Convention concerning the alleged leak of information to the press and to declare the remainder of the application inadmissible,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision taken pursuant to Rule 28 § 3 of the Rules of Court not to accept the applicant’s request under Rule 28 § 4 of the Rules of Court for recusal of Judge A. Poláčková,

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns an alleged leak of information to the media concerning the applicant’s arrest, the charges against him and the search of his company, impacting on his right to respect for his private life. It raises issues under Articles 8, 13 and 18 of the Convention.

THE FACTS

2.  The applicant, Mr Jaroslav Haščák, is a Slovak national who was born in 1969 and lives in Bratislava. He was represented before the Court by Škubla & Partneri s.r.o., a law firm with its registered office in Bratislava.

3.  The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Bálintová.

The circumstances of the case

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  The applicant is a prominent businessman associated with an influential finance group (in this decision referred to as “the applicant’s company”). The applicant’s company has its seat in a major corporate building.

6.  Since 2011 the applicant has been publicly portrayed as having been at the centre of a high-level corruption-ring targeted in 2005 and 2006 by the Slovak Intelligence Service (“the SIS”) in a bugging operation codenamed “Gorilla”.

7.  Since then, there has been an ongoing investigation seeking to draw criminal-law consequences from the multitude of suspicions gleaned by the operation. In addition, there has been an extensive amount of litigation concerning claims by the applicant and an associate of his to the effect that any recordings and other products of the operation were legally unusable in evidence and should be physically destroyed.

8.  In connection with the charges mentioned below, the applicant was remanded in custody, but the remand decision was quashed on appeal, which led to his release, and the charges against him were subsequently discontinued.

9.  More details are laid out in the Court’s judgments in the cases of Zoltán Varga v. Slovakia (nos. 58361/12 and 2 others, 20 July 2021), Haščák v. Slovakia (nos. 58359/12 and 2 others, 23 June 2022) and Plechlo v. Slovakia (no. 18593/19, 26 October 2023).

10.  On 1 December 2020 at 3 p.m., after receiving summonses, the applicant appeared for questioning by an investigator of Slovakia’s centralised bureau for the investigation of corruption and organised crime (Národná kriminálna agentúra – “NKA”). The questioning concerned a different matter from that in respect of which charges were subsequently brought against him (see below). He went in by the main entrance, which was a location normally used by journalists seeking to question persons entering or leaving the building who were involved in media-sensitive matters, but there were no journalists there on this occasion.

11.  The Government submitted – and this was not contested by the applicant – that information concerning summonses in criminal proceedings and concerning persons entering and leaving police premises was in general not of a classified nature.

12.  In the applicant’s submission, from around 3.30 p.m. there were journalists gathered at the service entrance of the NKA building, which was the route that would only be used for exiting the building if the liberty of the person concerned was going to be restricted.

13.  Following the questioning, at 4 p.m., the applicant was charged with a number of offences and placed under police arrest. The charges were based on a suspicion that, with two others, he had set up and operated a corporate cover-up scheme to compensate a former SIS officer for having provided the applicant with a copy of the original SIS intelligence material produced by the Gorilla operation.

14.  According to the applicant, from around 3 p.m. journalists had been seen around the main entrance to the corporate seat of his company. At 4.08 p.m. the building was stormed by some sixty officers from the police’s rapid-reaction force in heavy protective gear and automatic weapons; they then occupied the parts of the building used by the applicant’s company.

15.  In the Government’s submission, there had been police vehicles parked around the seat of the applicant’s company even before the actual intervention; in response, the applicant submitted that the available CCTV footage had shown no marked police vehicles and no unmarked vehicles with uniformed officers in or around them on the scene at that time.

16.  Following his arrest, at 4.45 p.m. the applicant was escorted by six officers in heavy protective gear from the NKA building to the corporate seat of his company in order that he could be present during its subsequent search.

17.  The escort exited the NKA building by the service entrance in full view of the journalists present there. The escort vehicle then stopped by the main entrance to the corporate seat of the applicant’s company and, at around 5 p.m., he was led by the escorting officers from the car to the building, with journalists again being present. In the applicant’s submission, the journalistic questions shouted at him on that occasion indicated that the journalists were informed of the nature of the charges that had been brought against him shortly before.

18.  Soon thereafter information about the applicant’s arrest, the charges against him and the search of his company was spread via digital and other media, along with photographs and video footage.

19.  It is undisputed that the search of the applicant’s company took place pursuant to a warrant issued by an investigator and that the warrant was to be treated as confidential until its implementation.

20.  The applicant subsequently made a number of submissions addressed to various institutions complaining of what he considered to have been unauthorised leaks to the media of information concerning his arrest, the charges against him and the search of his company, arguing, inter alia, that these leaks had interfered with his personal integrity and defence rights.

21.  In so far as his submissions amounted to a criminal complaint, it was dealt with by the Inspection Service of the Ministry of the Interior which decided on 15 February 2021 to open an investigation into the suspicion that police officers unknown had abused their official power and jeopardised the secrecy of official information. On 21 April 2021 the investigation was stayed because, despite all conceivable evidence having been taken, no basis had been established permitting the bringing of charges against any individual. An interlocutory appeal lodged by the applicant against that decision was dismissed by the Bratislava Regional Office of the Public Prosecution Service (“the Bratislava PPS”) on 26 July 2021.

22.  Following further complaints and requests lodged by the applicant, the Bratislava PPS informed him in a letter of 10 November 2023 that no shortcomings had been established in the way the matter had been handled and that there was no need for the taking of further evidence, as suggested by the applicant, since that was unlikely to render any relevant new information. There has been no indication that the applicant pursued any further remedy, in particular any complaint to the Constitutional Court, in that respect.

23.  Meanwhile, the applicant had lodged two constitutional complaints, raising a wide range of issues linked to his arrest and to the search of his person and the offices of his company. In addition, he also complained of the alleged leak of information, as specified above.

24.  The complaints were declared inadmissible on 7 September 2021 and 9 November 2022, respectively. In so far as the alleged leak of confidential information was concerned, the Constitutional Court noted that it was being investigated in the proceedings initiated by the applicant’s criminal complaint and that it had no jurisdiction to deal with an identical matter in parallel with those proceedings.

25.  The applicant pointed out that it had been one of the main pillars of government policy following the parliamentary elections of 2020 to “untie the hands” of the police in their fight against organised corruption and to crack down on persons that were considered undesirable. In this context, he pointed to statements made by public officials concerning him that he considered to be unacceptable and to form part of a coordinated campaign against him.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

26.  Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides that the Constitutional Court has jurisdiction to deal with complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms, provided that the protection of such rights and freedoms does not fall within the jurisdiction of a different court.

27.  Under section 53 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended), an individual complaint under Article 127 of the Constitution is not admissible if the complainants have not exhausted legal remedies or other legal means which a statute effectively provides to them with a view to protecting their fundamental rights or freedoms, and which they are entitled to use under special legislation.

28.  The State Liability Act (Law no. 514/2003 Coll., as amended – “the SL Act”) governs, inter alia, the State’s liability for damage caused by public authorities through their exercise of public power (section 1(a)).

29.  Under section 3(1)(d) of the SL Act, the State bears liability also for damage caused by public authorities through official misconduct (nesprávny úradný postup). Under section 3(2), this liability may not be done away with.

30.  Details concerning official misconduct are provided in section 9; it encompasses, inter alia, the exercise of public power that results in a violation of a procedure prescribed by a statute (subsection 1) and that the right to compensation for damage caused by maladministration is vested in the person who sustained the damage (subsection 6).

31.  The compensation is to cover pecuniary damage, including loss of profit (section 17(1)), and costs (section 18(2) and (3)). Where the finding of a violation of the injured party’s rights alone constitutes insufficient satisfaction, the compensation is also to cover non-pecuniary damage (section 17(2)).

32.  If the claim is not satisfied by the respective ministry or other central body with authority to answer to it within six months of it being lodged, it may be pursued further before the courts (section 16(4)).

33.  The right to compensation becomes statute-barred three years after the injured party learned of the damage in question (section 19(1)).

34.  In an unrelated case (no. 13C 53/15), the Lučenec District Court dealt with a claim for damages against the Ministry of the Interior under the SL Act, in connection with official misconduct by the police in the execution of a search of the claimant’s house. In particular, the police had broken an entrance door to the property, even though there had been other points of open access. The District Court found that the basis for the claim had been established and that its amount was to be determined in the further course of the proceedings. This judgment was upheld on appeal by the Banská Bystrica Regional Court on 28 November 2017. It was held that the liability under the SL Act was a strict one, meaning that it was not necessary for the claimant to show intent or negligence, but only the damage, the misconduct and the causal link between them.

35.  In an unrelated case (no. 19C 82/12) the Bratislava I District Court allowed a claim for damages against the Ministry of the Interior under the SL Act, in connection with official misconduct consisting of a forcible entry by the police into the claimants’ house when searching for a wanted person who, it had then been established, had never been staying at that house.

36.  In a judgment of 23 June 2021, on an appeal no. 6Co 73/19, the Bratislava Regional Court upheld a first-instance judgment dismissing a claim for damages against the Ministry of Defence under the SL Act. The case concerned alleged official misconduct consisting of an alleged leak by an officer of the military intelligence service of two pieces of classified information to a journalist. Even though the claimant had shown that there had been communication between the officer and the journalist, this communication had revealed no transmission of any classified information to the latter. Accordingly, one of the essential components of a compensation claim under the SL Act had not been established – in particular the alleged official misconduct.

COMPLAINTS

37.  Relying on Articles 8, 13 and 18 of the Convention, the applicant complained that there had been a leak of information impacting on his right to protection of private life, that this restriction had served an ulterior and illegitimate purpose, and that he had had no effective remedy in that respect.

THE LAW

38.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).

39.  Alleging that there had been a leak of information to the press concerning his arrest and the search of his company, the applicant complained of a violation of his rights under Articles 8, 13 and 18 of the Convention, which provide as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 18

“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

40.  The Government argued that the applicant had failed to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention by claiming damages under the SL Act. In that regard, if established, the alleged leak of confidential information would undoubtedly constitute official misconduct and any damage caused to the applicant thereby would be compensable without him having to show intent or negligence on the part of any wrongdoer. The practice of the domestic courts (see paragraphs 34 to 36 above) bore witness to the effectiveness of this remedy. Without providing details, the Government referred to an instance in which the applicant had made use of this remedy in a somewhat related matter. Rather than by asserting his rights under the SL Act, the applicant did so by way of a criminal complaint, albeit without challenging its negative outcome before the Constitutional Court.

41.  In reply, the applicant contested the effectiveness of the compensation claim under the SL Act as a remedy for the Convention purposes, referring to the position taken by the Court with regard to that remedy in its judgments in the cases of Michalák v. Slovakia (no. 30157/03, 8 February 2011), Potoczká and Adamčo v. Slovakia (no. 7286/16, 12 January 2023) and Plechlo (cited above).

42.  In the applicant’s submission, the examples of domestic judicial practice referred to by the Government either originated from an unrelated context (see paragraphs 34 and 35 above) or actually undermined the effectiveness of the remedy in question (see paragraph 36 above). In his view, the latter example demonstrated that it was effectively incumbent upon him to show that there had in fact been a specific leak from a specific source. As the State itself had been unable to establish that in response to his criminal complaint, it was too excessive a burden to be placed upon him.

43.  The only remedy the applicant considered potentially effective – even though it had been declared inadmissible on the facts of his case – was that of lodging an individual complaint with the Constitutional Court under Article 127 of the Constitution. As he had indeed made use of that remedy, he could not be expected to have attempted further remedies that were likely to be unsuccessful.

44.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy under the domestic system available in respect of the alleged breach – whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Under Article 35 § 1, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness, there being no obligation to have recourse to remedies that are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996 IV, with further references, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

45.  The Court notes at the outset that the supreme authority in charge of the protection of fundamental rights and freedoms in Slovakia is the Constitutional Court (see Lawyer Partners a.s. v. Slovakia, nos. 54252/07 and 14 others, § 46, ECHR 2009) and that its jurisdiction is subject to the principle of subsidiarity (see paragraphs 26 and 27 above; see also Engelhardt v. Slovakia, no. 12085/16, §§ 24, 25 and 66, 31 August 2018).

46.  On the facts of the case, the applicant turned to the Constitutional Court, disregarding any other remedies actually or potentially at his disposal. This is apparent from the fact that, even though he had pursued his rights and interests by way of lodging a criminal complaint, he lodged his constitutional complaints while the former was still pending. In fact, the relevant part of his constitutional complaints was rejected precisely because his criminal complaint was still pending (see paragraph 24 above). In this context, the Court also notes that, once the applicant’s criminal complaint was ultimately dismissed, he did not challenge that outcome before the Constitutional Court (see paragraph 22 above).

47.  Arguing before the Court that the only potentially effective remedy for him was to lodge an individual complaint under Article 127 of the Constitution, the applicant in fact seeks that the Constitutional Court exercise its jurisdiction under that provision with regard to the matters complained of without the prior involvement of any other authority. However, there appears to be no basis for such a construction. This is precisely what distinguishes the present case from that of Potoczká and Adamčo (cited above, §§ 62-64).

48.  The relevant part of the Court’s examination of the case of Michalák (cited above) concerned a State liability claim under earlier legislation. Contrary to the present case, Mr Michalák’s choice to assert his rights before the Constitutional Court was normally considered to be effective under the domestic remedies rule of Article 35 § 1 of the Convention. In addition, it had been reasonable and appropriate in the given circumstances (ibid. §§ 104‑06). In Plechlo (cited above), the ineffectiveness of a State liability claim as a remedy to be exhausted was due to the lack of its potential to bring about the destruction of material the retention of which by the State was in itself alleged to constitute a violation of Article 8 (ibid., §§ 36‑37), which manifestly has no bearing on the facts of the present case.

49.  In the circumstances, not only can a constitutional complaint lodged in disregard of the principle of subsidiarity not be seen under the domestic remedies rule of Article 35 § 1 of the Convention as constituting a remedy that was apparently effective and sufficient, but the possibility to lodge a compensation claim under the SL Act was available and more likely to be successful (contrast Michalák, cited above, §§ 103 and 107, with a further reference).

50.  In particular, as provided for by the statute and recognised by the courts, the State’s liability under the SL Act is a strict one, encompassing elements of pecuniary as well as non-pecuniary damage and costs and expenses. In other words, this liability requires no showing of intent or negligence on the part of the wrongdoer (see paragraphs 28-31 and 34 above).

51.  In so far as the applicant seeks to contest the effectiveness of a State liability claim as a remedy in his case by reference to another case decided upon by the Bratislava Regional Court on 23 June 2021 (see paragraphs 36 and 42 above), the Court finds the following conceptual distinction between the two cases undermining his argument. In that regard, it notes first of all that no integral version of the said judgment has been submitted to the Court, the parties having developed their arguments on the basis of a quotation of a part of it that was provided by the Government. From that quotation it can be seen that the claimant in that other case alleged and failed to establish a specific leak from a specific source to a specific destination, whereas the essence of the present case appears to lie in the alleged fact that journalists were in the possession of secret information which the State had a duty to protect from disclosure. In connection with that fact – which, if established, is of an objective nature – the applicant has been arguing both at the national level and before the Court that the presence of journalists at the service entrance of the NKA building and at the front entrance of the corporate seat of his company at the given time could not have been explained other than by their being in the possession of the said information at that time. Establishing this arguably requires a different evidentiary basis and, unlike an ordinary claim in tort or a criminal complaint, does not require that any subjective culpability be established.

52.  Should the effective pursuit of a State liability claim necessitate any elements that could only be obtained by the exercise of official power (for example, in response to a criminal complaint), the Court notes again that it was open to the applicant to challenge the outcome of the proceedings concerning his criminal complaint, including before the Constitutional Court, but that there is no indication that he has done so.

53.  In its decisions, the Constitutional Court referred the applicant to the pending proceedings on his criminal complaint, but not to the possibility of asserting his rights by way of lodging a State liability claim in civil courts. It would certainly have added value to the general understanding of the functioning of domestic remedies in Slovakia if the Constitutional Court had referred him to such a possibility and the potential for its correlation with the proceedings on the criminal complaint. Nevertheless, on the specific facts of this case, for the following reasons the lack of such a reference does not undermine the effectiveness of the remedy in question.

54.  First of all, nothing in the Constitutional Court’s decisions or established otherwise contradicts the possibility for the applicant to assert his rights under the SL Act. In addition, the Court is of the view that the relevant part of the Constitutional Court’s decisions must be seen within the context of an extensive amount of interrelated litigation involving the applicant and taking place over great many years consecutively or in parallel at all judicial and other official levels, in the pursuit of which the applicant has at all times benefited from legal advice. As to the remedy under the SL Act, he has not contested the Government’s argument that he had already made use of it in a related matter (see paragraph 40 above in fine). It can therefore not be doubted that the possibility to lodge a compensation claim under the SL Act was available to him both in theory and practice and that his not having made use of it within the applicable statutory limitation period (see paragraph 33 above) cannot be imputed to anyone but to him.

55.  The Court notes that the remedy in question ultimately fell within the jurisdiction of the ordinary courts (see paragraph 32 above), the outcome of the proceedings before which was then further challengeable before the Constitutional Court (see paragraphs 26 and 27 above). By not having made use of this avenue, the applicant has failed to exhaust domestic remedies.

56.  Accordingly, the applications must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 October 2024.

 Ilse Freiwirth Ivana Jelić
 Registrar President