Another turn of the screw – further restrictions for Hungarian applications to the ECtHR

This blogpost was written by Andras Kadar, attorney at law, Co-chair of the Hungarian Helsinki Committee

Two recent posts on this blog (one on the Mendrei case and one on the Szalontay decision) by Dániel A Karsai have described how the European Court of Human Rights (Court) – largely disregarding the Hungarian legal-political context and its own jurisprudence on the burden of proof concerning the effectiveness of remedies – has limited potential applicants’ access to the Strasbourg protection mechanism by declaring the Hungarian constitutional complaint an effective domestic remedy to be exhausted as a strong main rule.

With the inadmissibility decision handed down concerning application no. 22172/14, the Court has gone one step further on this road, mounting a procedural obstacle to seeking protection in Strasbourg that certain applicants coming from less privileged groups of society may not be able to overcome. 

Facts of the case

The applicant of the case was a lecturer at the Pécs University since 1995. As the communication of the case states, “under a 2011 law, lecturers had to declare their affiliation to a particular university for the purposes of assessing the operational requirements of higher education institutions. One lecturer could declare one exclusive affiliation only.” In September 2013, the applicant withdrew his declaration in respect of the Pécs University and declared his affiliation with another educational institution (but he continued to teach at Pécs University). In terms of the unambiguous legal provisions of the pertaining Act of Parliament, this move of the applicant allowed the Pécs University to dismiss him without a severance payment. If the dismissal had not been based on the withdrawal of the declaration of affiliation, the applicant would have been entitled to a significant amount of money on the basis of having been employed by the university for close to two decades. The applicant submitted that this had amounted to a violation of his right to the peaceful enjoyment of possessions read alone and in conjunction with the right to an effective remedy due to the loss of the legitimate expectation of a severance payment and the absence of an effective remedy in this respect.

The Court’s decision

The Hungarian Government’s primary defence was that the application was inadmissible for non-exhaustion of domestic remedies. The applicant could have filed a labour lawsuit, in the course of which the court could have – within its discretionary powers – suspended the case and requested a constitutional review of the impugned legislation. Or, alternatively, if the court had refused to do so, and had decided the case against the applicant on the basis of the law authorising the university to dismiss him without a severance payment, the applicant could still have filed a constitutional complaint to the Constitutional Court (CC). In the Government’s view, this mechanism could have provided effective remedy against the measure taken on the basis of the impugned legislation.

In response, the applicant pointed out that the Government could not present any case-law suggesting that either of the two remedies (requesting the labour court to turn to the CC or filing a constitutional complaint after the labour case is over) could have been successful. The Applicant was of the view that it was incompatible with the Court’s “effective protection theory” to oblige an applicant to pursue an otherwise obviously futile court proceeding of at least two instances and to bear its financial burdens for having the possibility to challenge – with a less than dubious chance of success – the legal basis of the procedure before the CC, especially when there is no consistent case law of the CC providing a sufficient prospect of success.

In a rather summary decision, the Court sided with the Government’s argument, claiming that since the application concerns the right to peaceful enjoyment of possessions, i.e. “a Convention right equally protected by the Fundamental Law of Hungary”, the applicant should have sought remedy from the CC. This he could have done so by launching a labour-law action against the university claiming the unpaid severance payment, and after losing the case on two instances, he could have filed a constitutional complaint. The decision formulates this as follows: “a constitutional complaint – enabled by preceding labour-law litigation – would have been an effective remedy to exhaust in the circumstances” (emphasis added). The wording leaves little doubt that the Court itself was fully aware that the applicant would have by all probability lost his labour case, since there was a clear legal norm allowing the university to dismiss him without a severance payment.

Comments

The decision is problematic on several levels. The primary issue is of course that the constitutional complaint cannot be regarded as an effective remedy. The second is that the “novel” admissibility requirement of launching legal action that is almost certain to fail in order to gain access to the CC is unrealistic, severely limits applicants’ access to the Strasbourg mechanism and goes counter to the position that the Court previously held on this matter.

As the ineffectiveness of the constitutional complaint has been thoroughly discussed on this blog, I will focus on the second issue, however, before doing that I find it important to reiterate the most important problems concerning the constitutional complaint. These can be summarised as follows.

• The CC has full and uncontrolled discretion to decide whether to admit a complaint at all, so the complainants do not have a clear right to avail themselves of this remedy.
• There is no time limit for the CC to decide on complaints, and in several cases, the CC has been failing to deliver a decision for years. By way of example, the Hungarian Civil Liberties Union has published a list of the longest pending cases, including a complaint on the ban of a demonstration that – as of 30 August 2019 – the CC has not adjudicated for 2062 days.
• Statistical evidence shows that the type of complaint the applicant would have been required to submit is successful in only a minuscule percentage of cases. According to the CC’s own data, in 2012-2013 (i.e. in the time period that passed between the introduction of the new types of constitutional complaint and the submission of the application in the case under discussion), out of the 925 constitutional complaints submitted against individual judicial decisions (on the basis that either the law applied by the court was unconstitutional or the court applied the law in an unconstitutional manner), only five (0.5%!) led to the CC quashing the challenged decision.
• There are serious doubts concerning the CC’s political independence in a context where the system of checks and balances has already been severely weakened.
• According to the Court’s consistent case law, it is for the government to satisfy the Court that a certain remedy is effective, i.e. it is accessible, capable of providing redress in respect of the applicant’s complaints and offers reasonable prospects of success. It is also held by the Court that the government’s arguments concerning the availability and effectiveness of a remedy should – as a rule – be substantiated by examples from national case-law. Despite this, the Hungarian government regularly raises the argument about the constitutional complaint being an effective remedy without quoting any example from the CC’s jurisprudence to substantiate this claim. The same happened in the present case: although the government submitted its observations in March 2018 (i.e. over six years after the introduction of the new constitutional complaint mechanism), it could not refer to any labour law case similar to that of the applicant where the CC would have remedied the violation on the basis of a complaint. I have to add that in the light of the CC’s statistics, it is not surprising that the government has serious difficulties finding convincing examples.

Having said that, I wish to focus on the serious extension of the applicant’s obligations relating to the exhaustion of remedies and how this means a – largely unexplained – change compared to previous jurisprudence.

The situation in the K.M.C. v Hungary case was very similar to that of the present dispute. In an attempt to painlessly get rid of those civil servants whose loyalty to the incoming government could be questioned, in 2011, the Hungarian Parliament passed a law allowing state institutions to dismiss civil servants without giving any specific reason. This is what happened to Ms K.M.C., who in principle could have launched a labour-law action to get reinstated by the court, but in practice she would have stood no chance, as her dismissal was in compliance with the legislation. For that reason, she decided to file her application with the Court directly, within six months of her dismissal. The Hungarian government raised the same argument as in the present case, claiming that the applicant “had not instituted proceedings before the labour court; had she done so, an eventual final judgment against her could have been challenged before the Constitutional Court”. Back in 2012, the Court dismissed this argument by stating that “such an action […] could only have been a formal motion. For the Court, the applicant cannot be expected to have made such an attempt in the circumstances.” Furthermore, the Court took the view that “it cannot speculate about the [CC’s] decision concerning the non-applicability of the annulled provision in the applicant’s case”.

It might be raised that the CC’s powers were different at the time. Before January 2012, the CC could only have – in a procedure initiated by the labour court ex officio or upon the applicant’s request – prescribed that the unconstitutional norm should not be applied by the domestic court in the complainant’s individual case. Whereas since January 2012, the CC has been authorised to quash judicial decisions based on unconstitutional laws or the unconstitutional interpretation of laws. However, from a structural point of view, the two situations are identical, as the issue in both cases is whether the highly distant and hypothetical chance of the CC offering redress after (or in the framework of) pursuing almost certainly unsuccessful labour litigation can be regarded as a sufficiently effective domestic remedy. It is also true for both cases that there is a judicial forum with full discretion on whether to allow access to the CC as a remedial route: before 2012, it was the judge adjudicating the individual labour action, whereas since 2012, it has been the CC itself. Hence, the two situations are parallel in this regard as well.

Thus, in 2013, the Court dismissed the idea that the applicant could be required to pursue a lengthy and obviously futile court proceeding and bear its financial burdens (the court fees, the legal costs and the costs of the other party) for having the possibility to challenge – with a highly questionable prospect of success – the legal basis of the procedure before the CC. However, although the applicant in the case under scrutiny expressly referred to the K.M.C. judgment’s above quoted conclusions in his counter-observations, not only did the Court depart from its stance taken there, but it also failed to give any reasoning why it had changed its approach. This goes against a number of principles the Court itself has laid out while adjudicating applications concerning violations by domestic authorities, including the importance of the consistence and foreseeability of jurisprudence when assessing the effectiveness and meaningfulness of remedies (c.f. Ferreira Alves v Portugal no. 6, §§ 27-29) and the right to a reasoned decision, which carries the crucial functions of demonstrating to the parties that they have been heard and of guaranteeing that there can be public scrutiny of the administration of justice (c.f. Suominen v Finland, § 37).

But the problem is even more severe than that. Back in the Spring of 2013, the K.M.C. judgment was followed by a number of decisions (e.g. applications 6399/13, Vetró v. Hungary,  and 6845/13, Czapkó v. Hungary, but we saw several others at the Hungarian Helsinki Committee) in which the Court declared inadmissible the applications of civil servants who (similarly to Ms. K.M.C.) were dismissed without any justification, but who (unlike her) instead of turning directly to Strasbourg, chose to seek justice before the Hungarian labour courts first and only applied to the Court after losing their labour cases. These single judge decisions do not contain any detailed reasoning. However, from the fact that all of the applications of complainants in a similar situation were dismissed, we can conclude that this happened because the applicants had resorted to a remedy (labour-action) that had been deemed ineffective by the Court in K.M.C.. They had, therefore, run out of the six-month deadline that started from the time of their dismissal in 2011 and not when they lost the labour lawsuits before the Hungarian courts in 2012-2013.

So to sum it up: in 2013, applicants were rejected by the Court for launching “hopeless” labour-law actions, whereas the applicant of the present case, who submitted his complaint in March 2014 with the K.M.C. judgment and the post-K.M.C. decisions in mind, was “punished” for not doing so. In addition, the Court declared the application inadmissible five years after its submission, in June 2019, i.e. at a time when the statute of limitations already prevents the applicant from launching the required labour suit. The burden of not foreseeing in March 2014 how the Court’s approach would change exactly five years later in Szalontay v Hungary has thus fallen with full weight on the applicant, who was not even given any detailed reasoning as to why the Court chose to depart from its earlier approach in spite of the fundamentally identical structure of the two cases.

This is of course not to say that the Court, as any court, may not depart from its earlier jurisprudence. However, if this departure means the retroactive introduction of a requirement limiting (or – as in the present case – eliminating) the applicants’ access to the Strasbourg mechanism, one has to conclude that inadmissibility could not really have been declared “without further examination” (c.f. Article 28 of the Convention). Thus, deciding the present case in a Committee seems – to say the least – unjustified. In addition, the way the Court chose to proceed in this case prevented the applicant from putting forth his arguments concerning this new limitation. I believe that in light of the above outlined circumstances of the case, the issue would have merited relinquishment of jurisdiction in favour of the Grand Chamber on the basis of inconsistency with the Court’s previous case-law.

Conclusions

So, the question arises: how should applicants proceed now? Should they launch the domestic proceedings and file the application with the Court at the same time to be on the safe side in case a(nother) 180-degree turn takes place in the jurisprudence? This would have definitely solved the problem for the applicant of the present case. However, lawyers need to be very careful about handing out such advice, as proceeding in this manner would impose an unnecessary burden on both the domestic and the Strasbourg remedial systems which  would contribute further to the increased caseload and to protracting the administration of justice to the wronged individuals. But maybe even more importantly: it is obvious that many applicants simply cannot afford to go down this road. The applicant of the present case had another teaching job, but what about someone who is dismissed without a legitimately expected severance payment and a fall-back option? Would we really expect possible future applicants, based on such shaky jurisprudence, to enter into a protracted and expensive domestic lawsuit with the hope that if two years later they lose the case on both instances and in another year or so, the CC also rejects the complaint, they might be provided with redress in a similarly lengthy (the present case took five years to decide) Strasbourg proceeding?

Such an interpretation would severely restrict less privileged applicants’ access to the Court and possibly undermine the effectiveness of the protection offered by the Convention. For that reason, I truly hope that the assessment of the constitutional complaint’s effectiveness will soon be reviewed and a much more nuanced and transparent jurisprudence will evolve, taking into account the availability of this remedial route not only in theory but also in practice.