Role of the constitutional courts in the system of the effective domestic remedies – a new approach on the horizon? Criticism of the Mendrei v. Hungary decision

By Dr. Dániel A. Karsai, attorney at law, Dániel Karsai Law Firm

The European Court of Human Rights (hereinafter: the Court) recently adopted the Mendrei v. Hungary (no. 54927/15) decision on 5 July 2018. In this very important decision, the Court changes fundamentally, and in my opinion negatively, its understandings of the role of the constitutional courts in the system of domestic remedies and the required level of protection of Convention rights. The prospects of the negative changes are not mere Cassandra’s curse; since in Mendrei the Court accepted a legal avenue before the Hungarian constitutional court to be an effective remedy, whereas this procedure can only result in the quashing of the underlying regulations without curing the injustice concerned. Moreover, it turned upside-down the burden of proof previously vested on the governments concerning the effectiveness of a remedy, and, last but not least, the impartiality of the proceedings can be seriously questioned.

Facts

Mr Mendrei is a Hungarian teacher and a chairman of a teachers’ trade union. The Hungarian State in 2013 created – by the amendment of the National Public Educational Act – the so-called National Teachers’ Chamber. Teachers working for the State and municipal education institutions (the vast majority of the Hungarian teachers) ipso iure became members of this new chamber as of 1 September 2013, with the coming into force of this law with immediate effect. Mr Mendrei claimed that the compulsory membership to this chamber infringed his rights under Articles 10 and 14 of the Convention. Mr Mendrei did not challenge the impugned regulation before the Hungarian Constitutional Court (hereinafter: CC) under the special constitutional complaint procedure governed by subparagraph (2) of section 26 Constitutional Court Act (hereinafter: CCA).

Decision and comments

The Court declared the complaint inadmissible for the non-exhaustion of domestic remedies. The Court was of the view that the Applicant should have challenged the regulation before the CC since this procedure ‘was an accessible remedy offering a reasonable prospect of success’. This view cannot be sustained for the following reasons.

As the Court in Mendrei – correctly – puts it, the power in question of the CC is only capable of ‘the quashing of a legal provision in breach of the Fundamental Law, but provides no possibility of compensation or other measures of redress.’ It is not surprising since this constitutional complaint is not a “real” constitutional complaint. (I use the expression “this constitutional complaint” because there are three types of constitutional complaints in Hungary, the first two can be lodged against judicial decisions – their effective remedy nature was not the subject of Mendrei). The “constitutional complaint” analysed in Mendrei is in fact just a reduced type of actio popularis (calling it a “constitutional complaint” is therefore completely misleading), since only those whose rights were directly violated by legislation without a judicial decision can initiate such a procedure. In addition, the CCA stipulates that only complaints which raise a constitutional law issue of fundamental importance and are submitted 180 days after the regulation in question has come into force can be admissible.

Quashing a regulation that violates human rights without offering any form of redress cannot – not even in theory – classify as an effective remedy. At best, it only ends the suffering but offers nothing more. Consequently, these kinds of CC procedures, to the best of my knowledge at least with respect to Hungary, have never been classified as a remedy to be exhausted before turning to the Court. This is logical since the CCA itself defines this remedy as one that can be used only “exceptionally”.

To my surprise, the fourth section of the Court did not stop at this juncture and failed to do the obvious: dismiss the Government’s preliminary objection. To the contrary, the Court went on saying that the ‘removal of the impugned provisions would have, in all likelihood, terminated the membership complained of. (…) Therefore, (…) a successful constitutional complaint (…) would have been capable of putting an end to the grievance, restoring status quo ante (…).’ The Court continued that if the Applicant had lodged a complaint ‘shortly’ after the ‘enactment’ of the law, the positive outcome would have been ‘essentially a preventive nature’.

First, I am not convinced – and the Court itself only said ‘in all likelihood’ – that the quashing of the regulation would have terminated the Applicant’s membership (it is quite an odd test when the required level of protection of human rights to pass is just “in all likelihood”.) In fact, it would have been a pending legal situation requiring further (legislative) steps since it is simply impossible to tell what to do with the legally existing memberships. But even assuming that the situation would have ended – what about the period between the start of the forced membership and the decision of the CC? In this period, the Applicant’s rights were violated and the end of prejudice in itself does not redress it. Alternatively, should we conclude that from now on, for a domestic remedy to be effective in the eyes of the Court it is sufficient to terminate the violation pro futuro?

Second, in paragraph 37 of Mendrei, the Court expressed its view that the existence of the reasonable chance of success requirement cannot be challenged on the ground that the Government failed to provide any examples of cases where the Constitutional Court dealt with similar issues. The Court pointed out in this respect that the ECHR itself had never adjudicated on the issue of compulsory membership in a professional chamber. If my understanding is correct, the Court tried to apply previous case-law saying that ’the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies’ (see Domján v. Hungary (dec.), no. 5433/17, § 33, 14 November 2017). However, we are not talking about “mere doubt” here. The “mere doubt” principle can only be applied if it is proven – by the Government or if it is obvious from the legal background – that a legal avenue at least in theory is an effective one.

However, in the present case we did not reach this point of certainty, since as it was shown above, the procedure in question is not, even in theory, an effective one. In this situation, the Court, instead of expecting from the Government a plausible explanation, threw out the window the well-established case law of the Court stipulating that it is the Government’s obligation to show that the legal avenue in question is effective. It goes without saying that this is only an assumption and thus can be rebutted – by case law submitted by the Government showing the contrary. However, the Court exempted the Government from its obligation because the legal question to be adjudicated was “new”. In my view, this is not really an argument – since the “novelty” of an issue in itself does not say anything about effectiveness – or, alternatively, it only weakens the assumption of effectiveness since the old ways do not necessarily help solve new problems.

The primary concern with the Court’s approach in this case is that in the future governments will almost always be able to show that a certain remedy should have been exhausted by simply showing that the case at hand is “unique” and “new” and, therefore, the Applicant had not finished exhausting the domestic remedies available to them. The Court simply disregarded that judicial bodies almost never meet the same case twice – just more or less analogue ones. The Government should have been obliged to demonstrate that according to the case-law of the CC in general and in this case the specific constitutional complaint would have been an effective remedy – since this is exactly what effective remedies are good for: redressing new issues, because they are flexible enough. If the Government failed to do so, they should bear the consequences. This did not happen in the present case.

Moreover, the Court simply disregarded the Applicant’s arguments saying that the CC’s procedure is too long and the success rate is too low as “speculative” and being of “empirical nature”. One can only wonder how an argument can be speculative and empirical at the same time. Further, it is hard to find a right term for such an approach – a court of law disregarding empirical facts. This argument leads us to the gloomiest considerations in Mendrei.

The Court’s conclusions show that it simply failed to consider the context in which the Hungarian CC operates. The Court pretends like Hungary is a perfect rule of law state where an unquestionably independent CC operates. The reality is regrettably much more complex, to say the least. In the last 8 years – since the coming into power of Viktor Orbán – the state of the rule of law in Hungary has deteriorated significantly. This negative trend was analysed and established by independent international bodies – like the Venice Commission, which dealt with the situation in Hungary on numerous occasions.

The serious deterioration of rule of law in Hungary led to the so far unheard procedure: the Parliament of the European Union adopted the Sargentini-report about the situation in Hungary. This was the first step in the procedure under Article 7 (1) of the Treaty of the European Union which can be launched against a Member State “because of the existence of a clear risk of serious breach” of the values – i.e. rule of law in the first place – of the EU. The Court, which in other cases cites and examines, at length, international law materials related to the case at hand even ex officio, failed to do the same in Mendrei.

As to the CC, the Court in Mendrei observed that in 2012 a new act on the CC came into force – and that is why it had to re-analyse this legal avenue’s place in the Hungarian system of the protection of rights. The Court is right – there is a new law. And there is a completely new CC as well – now all of the judges are elected by the Hungarian parliament’s 2/3 majority of the ruling party FIDESZ – the opposition only had a symbolic part in the process. According to the Venice Commission’s opinion, the CC’s functioning in the last eight years has raised serious concerns. The Court failed to take into consideration or even mention these aspects.

Further, the Court did not analyse the actual procedural and substantive practice of the CC. In this paper I cannot examine this issue in detail, but let me draw your attention to an interesting statistic. In the first half of 2018, only 234 new applications were lodged with the CC. This number is strikingly low if we consider how many possible petitioners could turn to the CC: judges who have to apply an  unconstitutional regulation, the commissioner of human rights, MP’s, the Chief Prosecutor, the President of the State, and, last but not least, everybody whose fundamental rights were violated by a court decision or directly by legislation. The latter two items only cover – in theory – more than 1 million possible petitioners per year. The reality: 234 – which clearly shows the complete loss of faith in the CC due to its extremely restrictive procedural and substantive approach towards human rights. Further, another statistic shows that in 2017 only 7 out of 29 “Mendrei-type” constitutional complaints were dealt with by the CC on the merits – and not all of them were successful. And we did not mention the substantive case law of the CC being light years behind the related jurisprudence of the ECtHR, for example concerning right to property or right to personal liberty. These issues should have also been dealt with by the Court. But it was not, for unknown reasons.

However, the composition of the Strasbourg Court in Mendrei may reply to the question of why the aforementioned issues were not analysed by the Court. Judge Paczolay, the Hungarian judge was a member of the Chamber deciding the case and it is almost sure that he was the judge rapporteur (the national judges usually are the rapporteurs of the judgment that concern their country.) Mr Paczolay was one of the judges of the CC between 2006-2015, and its president between 2008-2015 (he was re-elected as CC president by the Parliament with the votes of the ruling party FIDESZ.) The deterioration of the CC’s functioning to be analysed happened mostly during his tenure. As the judge of the Court he should have declared bias and withdrawn from this case. Instead, he participated in a decision painting an unjustifiably positive picture about the CC and might have had a decisive part in declaring the CC’s procedure an effective remedy. This casts a dark shadow over the whole Court – nobody should be their own judge.

Conclusion

In the course of a proceeding the impartiality of which can seriously be questioned, the Court declared the mere quashing of a legal act to be an effective remedy, even though such an action offers no financial or other redresses to those who have suffered harm. If Mendrei is an indication of the Court’s future approach to such cases, then future applicants will face serious procedural obstacles. Namely, they have to tackle their domestic jurisprudence even if it can only result in a declaratory success. Since this is an illogical requirement, I think many applicants will not avail themselves of this legal avenue, and, consequently, lose their case before the Strasbourg Court. This may lead to a drop in the level of human rights protection under the ECHR.

Because of the importance of this matter, it would have been wiser if the Grand Chamber decided the case, not just a chamber. Mendrei, therefore, pointed out a serious shortcoming in the Court’s proceedings as well: the parties can only request the Grand Chamber’s ruling on judgments on the merits. However, as the present case shows, sometimes procedural questions should be allowed to be re-examined by the Grand Chamber.