FIRST SECTION
DECISION
Applications nos. 40734/22 and 40803/22
Robert KALIŇÁK against Slovakia
and Robert FICO against Slovakia
The European Court of Human Rights (First Section), sitting on 28 February 2023 as a Committee composed of:
Krzysztof Wojtyczek, President,
Ivana Jelić,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the applications (nos. 40734/22 and 40803/22) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 August 2022 by two Slovak nationals, Mr Robert Kaliňák and Mr Robert Fico, who were born in 1971 and 1964, respectively, and live in Bratislava (“the applicants”);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicants are known public figures. The application arises out of a context in which the applicant Mr Fico was the Prime Minister and Mr Kaliňák was the Minister of the Interior of Slovakia, prior to their resignation in 2018.
2. On 19 April 2021 the applicants and two other persons were charged with a number of offences essentially having to do with setting up and running a scheme for the exercise of undue influence within the law-enforcement and tax authorities, which included obtaining confidential information about political opponents and other persons with a view to discrediting them.
3. The supervision of this investigation is by law entrusted to the Office of Special Prosecutions (“the OSP”). The current head of this office is a former political opponent of the applicants.
4. On 22 April 2022 the Prosecutor General ruled that the Head of the OSP was excluded from acting in the matter on grounds of bias.
5. The applicants challenged all other prosecutors attached to the OSP arguing that there was a “general systemic bias” on their part in view of their hierarchical subordination to the head of the OSP. In addition, they claimed that the head of the OSP and another prosecutor attached to the OSP were among the persons seen as the victims in the above investigation and that the other prosecutors of the OSP were biased on grounds of being their colleagues.
6. The challenge was resolved by the Prosecutor General on 4 May 2022. He noted that since the head of the OSP was excluded from the matter, his authority in it was exercised by his deputy. However, this only concerned managerial questions and not the actual supervision of the investigation, which was carried out by another member of the OSP. The challenge to the other members of the OSP rested on no more than their hierarchical subordination to the head of the OSP. It accordingly did not amount to an actual challenge of bias, but rather to a request that the supervision of the investigation be relegated to a different structure within the Public Prosecution Service (“the PPS”). However, with regard to matters falling within the jurisdiction of the OSP, no such measure could be taken (Article 55d § 3 (b) of the PPS Act).
7. Invoking Article 6 §§ 1 and 3 (c) and Article 13 of the Convention, the applicants complained before the Court that in view of what they considered to be a general systemic bias of the OSP the supervision of their investigation was not impartial, that their challenge of bias had been arbitrarily treated as a request for relegation and that thereby they had been deprived of an effective remedy since, unlike a decision on a challenge of bias, a decision on relegation was subject to no appeal.
8. In support of these complaints, they argued that since their proceedings were at the pre-trial stage and since at that stage the proceedings were essentially under the control of the PPS, the guarantees of an impartial tribunal should apply to it.
9. Following the introduction of the applications, it became publicly known that, on 28 November 2022, the Prosecutor General had quashed the applicants’ charges in the exercise of his extraordinary powers under Article 363 of the Code of Criminal Procedure. Upon the Court’s request, the applicants confirmed this information and explained that the Prosecutor General’s decision had been prompted by their requests of 9 August 2022.
10. Nevertheless, the applicants wished to pursue their applications before the Court arguing that the reasons for the quashing (various errors in the factual definition of the reproached actions and procedural irregularities) had been different from the reasons on which their applications were based (lack of impartiality), that they had not received any compensation in respect of the alleged violations of their Convention rights, and that there was no guarantee that the charges would not be reinstituted, again under the supervision of the OSP.
THE COURT’S ASSESSMENT
11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
12. With reference to the applicants’ request addressed to the Prosecutor General on 9 August 2022, of which they informed the Court only upon its request, the Court notes at the outset that incomplete and therefore misleading information submitted in the course of the Convention proceedings may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
13. Be it as it may, the Court reiterates that according to its constant case‑law the question of whether or not court proceedings satisfy the requirements of Article 6 § 1 of the Convention can only be determined by examining the proceedings as a whole, that is once they have been concluded (see, for example, Dimech v. Malta, no. 34373/13, § 43, 2 April 2015, and the case‑law cited therein, and Kuráková v. the Slovak Republic (dec.), no. 37895/97, 1 February 2001).
14. From that perspective, the outcome of the applicants’ request to the Prosecutor General superseded the original applications in that, following the decision of the Prosecutor General to quash the applicants’ charges, there is presently no determination of any criminal charge against them within the meaning of Article 6 § 1 of the Convention taking place at the national level to bring their complaints within the scope of that provision ratione materiae.
15. Moreover, and in any event, the applicants’ complaints essentially concern their right to a fair hearing by an impartial tribunal, in connection with their claim of the lack of impartiality on the part of the structure within the PPS supervising the investigation against them.
16. In that regard, the Court reiterates that the guarantees of independence and impartiality included in the right to a fair trial under Article 6 § 1 of the Convention apply only to courts called upon to decide on a criminal charge, and not to the prosecuting authorities, being one of the parties to adversarial judicial proceedings (see Kontalexis v. Greece, no. 59000/08, § 57, 31 May 2011).
17. In so far as the applicants referred to the guarantees of independence and impartiality inherent in the requirement of an effective investigation under Articles 2 and 3 of the Convention, in so far as substantiated, these provisions are not directly relevant to the applicants’ position in the proceedings at stake (see also 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 no. P16-2020-001, Supreme Court of the Slovak Republic, § 19, 14 December 2020).
18. Furthermore, in so far as the applicants contest the way how their challenge (see paragraph 5 above) was treated by the Prosecutor General, in particular the fact that it was examined as a request for relegation, rather than a challenge of bias, it may be questioned whether the applicants have exhausted domestic remedies since they have not presented such a challenge before the Constitutional Court. It is true that a similar claim in an unrelated case was unsuccessful (see the Constitutional Court’s decision of 30 September 2021 in a case no. II. US 257/21), but there is no indication that that decision constitutes an established practice.
19. In the absence of an “arguable complaint” for the purposes of Article 13 of the Convention, the complaint under that provision is manifestly ill-founded (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
20. It follows that the application must be rejected as inadmissible in accordance with Article 35 § 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 23 March 2023.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President