Extremist view on subsidiarity and on exhaustion of domestic remedies? Criticism of the decision Szalontay v. Hungary

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

The Commissioner of Human Rights of the Council of Europe recently issued a report following her visit to Hungary where she made the following rather astonishing statement: “Human rights violations in Hungary have a negative effect on the whole protection system and the rule of law. They must be addressed as a matter of urgency”. The Commissioner voiced serious concerns over the impartiality of the judiciary (including the Hungarian Constitutional Court – hereinafter: CC), rights of migrants, gender equality and the systemic harassment of civil society.

This report gives topicality to the present blogpost which is the continuation of the post written about the Mendrei v. Hungary admissibility decision. In Mendrei, the Court declared one of the three types of the Hungarian constitutional complaint – the actio popularis – an effective remedy to be exhausted before turning to Strasbourg. In my Mendrei post I raised serious concerns about the Court’s new approach on the exhaustion of domestic remedies, in particular, the shift of the burden of proof from the Government to the applicants and that the Court completely disregards the legal and factual context in which the CC operates. To my biggest regret, the Court followed the course it started in Mendrei and in the recently adopted Szalontay v. Hungary admissibility decision finished the job: it fully declared the Hungarian constitutional complaints an effective remedy to be exhausted before turning to the ECHR. In the present post, I will argue that the Court’s view on domestic remedies is not just simply erroneous and disconnected from the Hungarian realities but seriously endangers the effective protection of human rights by establishing rather unforeseeable standards for the applicants that will be almost impossible to meet.

Facts and complaints

Mr. Szalontay was the managing director of company W. which leased and sub-leased the premises of a shopping mall in Budapest to hold music events. The place called West Balkan was very popular among young people. On one evening in 2011, panic broke out in the crowded stairway of the mall. People tripped and fell, and in the resultant stampede three young people were crushed to death. The tragic event received enormous media attention, including comments from politicians about the applicant’s responsibility.

The applicant was charged and found guilty of “danger caused by negligent professional misconduct leading to fatal mass casualties in the course of in the course of employment”. The domestic courts obtained expert opinions, heard witnesses and the applicant’s testimony and relied on documentary evidence. The applicant did not lodge a constitutional complaint against the final judgment. The applicant lodged his application with the Strasbourg Court on 7 November 2013.

In its decision, the Court did not specify what the applicant’s specific fairness complaints were but drew a rather dull, fourth-instance-like picture of the case. This picture is misleading, to say the least. When preparing the present post, I contacted the legal representative of the applicant who shared with me the original application and the counter-observations of the Applicant prepared in reply to the Government’s observations. Therefore, it is worthwhile to briefly summarise what was left out from the Court’s explanation.

The applicant raised a series of very specific violations committed throughout the proceedings. The Hungarian Code of Criminal Procedure, in effect at the time, prescribed that if the investigating authority appoints an expert during the investigation to form an opinion on certain issues, it is obligatory to appoint another expert on the same issues if the defence requests so. In the present case, this did not happen and thus there was a clear violation of a domestic criminal procedure provision that was originally adopted exactly to guarantee the equality of arms. This breach was all the more serious because the decisions of both domestic courts relied on the police appointed expert’s opinions. Additionally, the first instance court hindered the defence’s numerous evidentiary attempts and motions. Lastly, the applicant argued at length that the domestic courts were not impartial. In this respect, the applicant heavily criticized the politicians’ rather premature comments on the case that might have influenced the police and the courts at the applicant’s expense.

In my view, these alleged procedural shortcomings are not minor and should have been taken into consideration by the ECtHR. It is especially unfortunate that such scrutiny never took place when deciding the issue of effectivity of domestic remedies, as the real question for the Court was whether these specific problems could have been remedied in the course of a constitutional complaint procedure.

The Decision

The Court shared the Government’s view that that the applicant should have availed himself of the constitutional complaint before lodging his application with the ECHR. However, it shall be noted at this juncture that the Government did not quote any decision of the CC backing this opinion. (I will analyse the constitutional complaint and the position of the CC later.) The applicant shed light to this shortcoming and referred to the judgment Király and Dömötör v. Hungary (in this case, the applicants alleged the breach of Article 8 of the Convention. Since the Government failed to show any supporting case-law, the Court refused to accept the constitutional complaint as an effective remedy). However, in the present case, the Court changed this approach to now find that the Government does not need to show, by supporting CC case-law, that a remedy is effective.

The Court was of the view that Szalontay was to be distinguished from the above-mentioned Király and Dömötör case since there “was no constitutional right or a domestic practice allowing any prospect of success (…) for the protection of private life (…).” The Court admitted that the constitutional complaints analysed in Szalontay may strike down legal provisions and quash court decisions if they are in breach of the Fundamental Law without the possibility of pecuniary compensation. However, it added that this does not preclude effectivity since a successful constitutional complaint would have resulted in new proceedings before the competent criminal courts. In these new proceedings, a positive outcome might have been secured for the applicant. The Court pointed out that the application was lodged “well after” 1 January 2012, i.e. the introduction to the Hungarian legal system of the new types of constitutional complaint. For these reasons, for the Court, in theory, the constitutional court is an effective remedy.

As to the “in practice” effectiveness, the Court observed that the Government failed to provide examples of cases where the CC had dealt with issues similar to the ones arising in the present application. However, it went on to say that “being aware of its supervisory role subject to the principle of subsidiarity, the Court considers that it cannot substitute its own view of the issues at hand for that of the Constitutional Court, which, for its part, has not been afforded the opportunity to examine the issues arising in the applicant’s case.”

The Court also observed that the constitutional complaint “most probably” would have been declared admissible by the CC. Since the Court “saw no circumstances exempting the applicant from having to lodge such complaints in the present case”, it finally declared the complaint inadmissible for non-exhaustion of domestic remedies.

Comments and criticism

First, to distinguish the present case from Király and Dömötör, one may humbly observe that the right to respect for private life (the subject matter of Király and Dömötör) is enshrined in the Fundamental Law (section VI) just as the right to fair trial (section XXVIII – the subject of the present case.) is. The Court’s finding that in Király and Dömötör there was no right protected in Hungarian constitutional law is therefore completely unsubstantiated. I claim that the real reason for not accepting the constitutional complaint as an effective remedy in Király and Dömötör was the Government’s failure to provide any convincing case-law of the CC. In the light of Király and Dömötör, an unacceptable double standard seems to have occurred in Szalontay whereby the Government was exempted from providing CC case-law.

For analysing whether the Hungarian constitutional complaint may be classified as an effective remedy for Convention purposes, I will next briefly summarise the legal background of the constitutional complaint and the related practice of the CC. In the present case, two types of constitutional complaint were on the Court’s plate. Section 26 (1) of the Constitutional Court Act (CCA) provides the possibility of lodging constitutional complaints against court decisions where the alleged contradiction with the Fundamental Law flows from the legal provision based on which the case must be decided. The second type of constitutional complaint is governed by Section 27 of the CCA and it can be invoked when the wording of the law is constitutional, but its judicial interpretation is not. Complainants may invoke both sections simultaneously and the CC may even ex officio switch between the two legal grounds if it finds ones to be more applicable than the other.

In both cases, the CC has the right to quash the unconstitutional judicial decisions, which results in a brand-new court proceeding where the injustices suffered can be put right. Therefore, if one only looks to the letter of the CCA, the constitutional complaint indeed seems to be an effective remedy. However, numerous non-legal elements need to be taken into consideration in this respect – the general deterioration of the rule of law in Hungary (in this respect the Commissioner’s abovementioned report gives a good analysis), the actual practice of appointing judges of the CC, etc. These elements may raise serious doubts over the impartiality – and, consequently, even the theoretical effectivity – of the CC. Since in my view this element is also heavily linked with the practical effectiveness, I will analyse these aspects after showing the CC’s practice concerning constitutional complaints.

As to the “in practice element”, the CC’s own statistics are rather clear. Between 1 January 2012 – 31 March 2019, the Constitutional Court altogether dealt with 4841 constitutional complaints (concerning all fields of law). The vast majority of the complaints – 4578 (i.e. 94.56%) never reached a meritorious phase as they were declared inadmissible. Considering this overwhelming majority of inadmissibility decisions, one may wonder why the Court found so easily and without any detailed reasoning that the constitutional complaint of Mr Szalontay would most probably have been declared admissible. He had a mere 5% chance. Moreover, the Court failed to analyse the admissibility case law of the CC even in very general terms. Had it done so, it would have found that the CC is extremely restrictive, and consequently, proves to be a mountain to climb for the applicant. Therefore, the onus should have been for the Government to prove that “most probably” the complaint would have been admissible, but surprisingly, the Strasbourg Court did not require the Hungarian Government to do so.

When we dig deeper into the statistics, the picture gets even grimmer. Out of the remaining meritorious 263 cases only 68 ended with the complainants’ success (1.4% of all constitutional complaints, 10 successful attempts per year, less than one per month…). In other words, the chance of winning before the Constitutional Court is strikingly low. Moreover, one shall bear it in mind that these are the total figures relating to all fields of law, not just criminal law. If we narrow our research down to that field, the picture darkens completely.

Between 2012-2019, only 9 “criminal law” constitutional complaints were successful. However, it shall be noted that 7 out of these 9 judgments were not related to classical fair trial issues and other “hard core” criminal matters (by way of example, some of them were connected to the freedom of speech when domestic courts applied the concept of defamation excessively). Only the remaining two successful cases dealt with the fairness of the proceedings.

In sum, the CC found only two criminal proceedings that were unconstitutional during the course of seven years. These statistics may lead to two conclusions: the Hungarian procedural and substantive criminal law and practice are among the best in the world. Or, the Hungarian CC almost always turns a blind eye to these kinds of problems. The latter conclusion is strengthened by a look at the meritorious refusal-decisions (altogether 31 between 2012-2019, out of which 21 can be classified as “hard core” criminal law cases). A vast majority of the real fairness complaints end up in refusal, i.e. even if the CC goes into the merits of the case, it tends not to find problems. It goes without saying that a no-violation decision is not per se wrong. However, let me point out that serious questions can be raised concerning the compatibility of the CC’s case-law with the ECHR standards. For example, in a recent judgement, the CC saw no problem that the prosecutor acting in the case was undisputedly biased. From the ECtHR’s point of view, the enumeration of such a rather dubious judgment of the CC could be easily continued. Therefore, the applicant was right when he pointed out that the Government was not able to show even a single judgment of the CC proving that the constitutional complaint is an effective remedy in fair trial cases. To show the contrary would have been a mission impossible for the Government – the CC did not find a violation of the principle of the equality of arms (the actual subject matter of the present case) between 2012-2019 in not even one single case.

In addition, serious concerns may be raised concerning the CC’s impartiality in general, especially given that all of the current judges were elected by the Hungarian parliament’s 2/3 majority of the ruling party FIDESZ – the opposition only had a symbolic part in the process. The Commissioner of Human Rights also mentioned the CC’s probable impartiality as one of problems of the Hungarian judiciary. (It goes without saying that the Court did not know of the report’s existence when delivering Szalontay – but the facts leading to the conclusions of the Commissioner were and are easily accessible, e,g.are found in the local newspaper)

It is hard to see why the Court completely disregarded these figures and background facts. To find and analyse them took one weekend of easy research (with a half eye on the breathtakingly exciting final games of the English Premier League and Bundesliga). While it must again be emphasised that the onus should have been on the Government to have provided examples, the Hungarian staff members of the Registry could also have produced these data which are easily accessible from the CC’s website.

Importantly, even in the absence of such research, there surely was one person in the Chamber who was well aware of these statistics. This person is the Hungarian judge, Judge Péter Paczolay, the rapporteur of the case. He is a former judge (between 2006-2015) and President (between 2008-2015) of the CC. As I already discussed in the Mendrei-post

“The deterioration of the CC’s functioning to be analysed happened mostly during his tenure. As the judge of the CC 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”.

I am not arguing that Mr Paczolay is the secret agent of the Sheriff of Nottingham cleverly infiltrating the naive gang of Robin Hood, manipulating them to give the money to the rich instead of the poor. Nevertheless, he is simply too close to Government circles and especially to the CC – consequently, he should not sit in cases where the effectivity of the CC is at stake.

Lastly, one shall observe that the application was lodged in November 2013. By that time, the main features of Victor Orbán’s illiberal democracy had already been put into place, including the “reform” of the CC. Until November 2013 (in almost two years after the coming into force of the new CCA) there had been only 5 successful constitutional complaints. Consequently, the applicant had every practical reason to believe that his case was doomed to fail. Even if the Court sees in 2019 the CC’s role in the domestic legal system in an unjustifiably positive light, it should have adjudicated the state of affairs as they were in 2013. Therefore, it would have been much more acceptable if the Court had declared the constitutional complaint an effective remedy pro futuro and had understood that given the serious concerns outlined above, the applicants – including Mr Szalontay – cannot be punished for not turning to the CC before filing an application with the ECHR. This approach would have corresponded much more to the reality of the situation.

Hopefully, the above arguments will be taken into consideration in future cases and the Court will change its approach. However, I am not too optimistic in that sense since as Mr Emre Turkut put it when analysing a Turkish case and the role of the Turkish CC: “the serious consideration of the broader political context and a full examination of the substance of the allegations of large-scale human rights violations have never really been the ECHR’s forte”.

Conclusions

In sum, given the statistics, the procedural and substantive case-law of the CC, the general context not compatible with the rule of law in which the CC operates coupled with the fact that the Hungarian Judge rapporteur might not have been sufficiently partial, the decision of the Court declaring the Hungarian constitutional complaint an effective remedy cannot be sustained.

What are the actual consequences for those who feel that their Convention rights are violated by Hungary? The answer seems to be easy – CC first then ECHR. However, the picture is much more complex. First, there are subjects where the CC’s jurisprudence is light-years behind the related case-law of the ECtHR (for example the deprivation of liberty). Shall the applicants still turn to the CC even if it is sure that their case is doomed to fail? Moreover, as we could see, almost 95% of constitutional complaints are inadmissible. Will they be classified in Strasbourg as exhaustion according to the procedural requirements of the domestic law? The applicants and we, legal practitioners, do not have clear answers to these questions.

Given that the Court declared a legal avenue effective which, even in theory, is not; future applicants are left in a state of uncertainty concerning the exhaustion requirement. If they wish to stay safe in a procedural sense, they have to lodge the constitutional complaint and the ECHR application simultaneously. This increases the time and costs of the proceedings. Consequently, it is no surprise that only attorneys are happy with the Court’s Szalontay-ruling.

The Court took an extremist view on subsidiarity in Szalontay. Hopefully, we have reached rock-bottom rather the beginning of an undesirable precedent for applicants seeking the ECtHR’s help. If the Court does not mitigate its rigid approach, a substantial amount of human rights violations will remain unaddressed