Facts
The appellant, a Hungarian national, was registered with the anti-human trafficking and illegal prostitution unit of the Geneva police as the manager of several massage parlours in Geneva between 2011 and 2016. During that period, she was subject to several administrative sanctions for breaches of the Geneva Prostitution Act (LProst/GE), including the permanent closure of an unannounced parlour, ordered by the Department of Security, Employment and Health of the Canton of Geneva (hereinafter: the Cantonal Department). Since 2016, she has no longer been registered as the operator of a massage parlour.
By penal order of 31 January 2019, the appellant was convicted, inter alia, of usury, in connection with the operation of an unannounced massage parlour. It was established that she had engaged her sister to manage the appointments of five prostitutes who sub-let apartments at exorbitant prices, that she received the amount of their earnings daily, and that she handled their advertisements and residence permit applications. She also managed a website offering prostitution services and listing the apartments operated for that purpose.
By decision of 7 May 2020, the Cantonal Department ordered the appellant to immediately cease any activity falling under the LProst/GE in the apartments listed on the website, prohibited her from operating any other massage parlour, and imposed an administrative fine of CHF 1'000. These measures, accompanied by the threat of the penalties under Art. 292 SCC, were declared enforceable notwithstanding any appeal.
The appellant appealed to the Administrative Chamber of the Geneva Court of Justice (hereinafter: the Court of Justice) on 4 June 2020, denying that she operated a massage parlour and requesting suspensive effect. By decision on provisional measures of 8 July 2020 (ATA/664/2020), the Court of Justice rejected the request to restore suspensive effect.
On 11 August 2020, the appellant lodged a subsidiary constitutional appeal with the Federal Supreme Court against that decision, seeking, inter alia, the grant of suspensive effect, the annulment of the decision of 7 May 2020, and a hearing. The Cantonal Department concluded to the dismissal of the request for suspensive effect. By order of 28 August 2020, the President of the Second Public Law Division rejected the request for suspensive effect, treated as a request for provisional measures.
Considerations
As to admissibility, the contested decision is an interlocutory decision on provisional measures, subject to Art. 93 FSCA and to the requirement of irreparable harm. This point may nevertheless remain open, since the decision concerns only activities subject to the LProst/GE carried out in the premises in question, while the appellant herself asserts that she carries out no such activity. The subsidiary constitutional appeal is an inappropriate avenue, as the dispute concerns administrative sanctions under cantonal prostitution legislation (Art. 83 FSCA not applicable). However, the erroneous designation does not prejudice the appellant, the appeal being treated as an appeal in public law matters, which is admissible (Arts. 42, 82 let. a, 86 para. 1 let. d and para. 2, 89 para. 1, 90, 100 para. 1 FSCA). The requests for a hearing and for the taking of evidence before the Federal Supreme Court are inadmissible, as such measures are ordered only exceptionally.
As to the examination, in matters of provisional measures only the violation of constitutional rights may be invoked (Art. 98 FSCA), and the complaint must be raised and substantiated with precision (Art. 106 para. 2 FSCA). The authority may confine itself to a prima facie examination and must weigh the interests; the Federal Supreme Court annuls only a weighing of interests that is untenable, arbitrary.
The complaint of inaccurate establishment of the facts is rejected: the appellant in reality challenges the legal characterisation and presents her own version of the facts, which does not amount to arbitrariness (Art. 105 paras. 1 and 2, Art. 97 para. 1 FSCA). The…