Published on 5 June 2023
FIRST SECTION
Application no. 38283/21
PANTA RHEI, S.R.O.
against Slovakia
lodged on 26 July 2021
communicated on 15 May 2023
SUBJECT MATTER OF THE CASE
The applicant is a company incorporated in Slovakia, operating a chain of large-surface bookstores and traditional-style cafes. It complains of a violation of its rights by way of a measure (opatrenie) and decrees (vyhláška) adopted by the Public Health Authority (Úrad verejného zdravotníctva – “PHA”) of Slovakia, in response to the spreading of the Covid-19 virus.
Such measures were taken consecutively and, depending on what was applicable at the time, entailed the restriction or complete closure of the applicant´s operations. Any exceptions from the rules in place did not extend to the bookstores and cafes operated by the applicant company or their operation was conditional on the customers’ showing a COVID-19 test with a negative result, while other businesses such as supermarkets, department stores, smaller bookstores and cafes and take-away cafes were allowed to sell books and café subject to no or less strict requirements.
Alleging to have sustained significant pecuniary losses as a result of it, the applicant company complains that the contested interference with its right to the peaceful enjoyment of possessions was short of the requirements of lawfulness and proportionality and that it constituted discrimination. In particular, the PHA had no power to impose the limitations it did, they were notified at the last minute, their rationale was not understandable from their content, and they sometimes contradicted the resolutions of the Government in place (businesses allowed to be open but citizens not allowed to leave home). Furthermore, the interference originated directly from statute and there was accordingly no remedy against it, its impact was beyond what was strictly necessary, and the criteria for any exceptions were incomprehensible and arbitrary.
The application raises issues under Article 1 of Protocol No. 1 read alone and in conjunction with Articles 13 and 14 of the Convention, as well as under Articles 6 and 35 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant company complied with the time-limit laid down in Article 35 § 1 of the Convention? In view of the Court’s case-law (for a summary see, for example, Fetisov and Others v. Russia, nos. 43710/07 and 5 others, § 75, 17 January 2012) and the character, scope and content of the contested measure and successive decrees, what is the starting point for the counting of that time-limit?
2. In view of any financial support the applicant company may have received from the public funds for the losses allegedly sustained, can it be considered as having suffered a significant disadvantage, within the meaning of Article 35 § 3 (b) of the Convention? If not, does respect for human rights as defined in the Convention and the Protocols thereto require an examination of the application on the merits?
3. In view of the applicant company’s allegations and all relevant circumstances, including but not limited to the applicable statutory rules and 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.); the Constitutional Court’s decisions in cases nos. III. US 291/21 and IV. US 249/21; and its decision case no. PL. US 8/21, have the applicant company exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
4. Did the applicant company have access to a court for the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
5. Has there been an interference with the applicant company’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, §§ 133-134, ECHR 2005 XII (extracts))?
6. Has the applicant company suffered discrimination in the enjoyment of its property rights, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1?
In particular, has the applicant company been subjected to a difference in treatment compared to other businesses selling the same goods or providing the same services, such as departments stores, supermarkets, take-away café shops and smaller bookstores and cafes?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
7. Did the applicant company have at his disposal an effective domestic remedy for its complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?