FOURTH SECTION

DECISION

Application no. 54927/15 László János MENDREI against Hungary

The European Court of Human Rights (Fourth Section), sitting on 5 September 2017 and 19 June 2018 as a Chamber composed of:

Ganna Yudkivska , President, Paulo Pinto de Albuquerque, Faris Vehabović , Iulia Motoc , Carlo Ranzoni, Marko Bošnjak , Péter Paczolay , judges, and Andrea Tamietti , Deputy Section Registrar ,

Having regard to the above application lodged on 30 October 2015 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr László János Mendrei , is a Hungarian national who was born in 1954 and lives in Sukoró . He is rep resented before the Court by Mr A. Cech , a lawyer practising in Budapest.

2 . The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . Act no. CXC on National Public Education (“the National Public Education Act”), as amended by Act no. CXXIX of 2013, established the National Teachers ’ Chamber (“the Chamber”) consisting of teachers working at State and municipal public education institutions. Such teachers became ipso iure members of the Chamber as of 1 September 2013. The Chamber is a body established under public law to which, in principle, the rules governing associations apply.

5 . The Chamber ’ s members elected a number of national delegates. At an inaugural meeting held on 14 June 2014, the delegates adopted the Chamber ’ s charter and elected its president, national presidium, ethics committee and supervisory board. The Chamber ’ s charter was registered with the Budapest High Court on 30 December 2014.

6 . The applicant worked as teacher at a public educational institution. As a consequence, he automatically became a member of the Chamber.

7 . Furthermore, he was also a member of the Teachers ’ Democratic Trade Union. On 4 October 2010 the Budapest High Court registered the applicant as that trade union ’ s chairman. He has held that position ever since. Pursuant to section 63/G(2)(c) of the National Public Education Act , officials of the Chamber and members of its administrative bodies cannot concurrently hold office in any professional or advocacy organisations for teachers (for example, serving as chairman of a trade union).

8 . Another trade union, the Teachers ’ Trade Union, lodged a constitutional complaint, on 16 September 2013, against the National Public Education Act ’ s imposition of mandatory membership in the Chamber.

9 . On 3 March 2014 the Constitutional Court rejected the complaint of the Teachers ’ Trade Union without an examinat ion on the merits (decision no. 3033/2014 .( III.3.)AB). It held that it was based on “not actual, but future, hypothetical harm that had not yet occurred” in that the complainant trade union had argued that its leverage as a body of professional empowerment and lobbying would diminish as a result of the impugned legislation. The Constitutional Court moreover noted that the complainant trade union did not meet the requirement of being actually concerned in that the alleged grievances could potentially affect teachers as individuals but not the complainant entity itself. Consequently, that complaint did not meet the requirements of section 26(2) of Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act” – see paragraph 13 below ).

10 . The applicant himself did not lodge a constitutional complaint.

B. Relevant domestic law

1. The National Public Education Act

11 . Sections 63/ A and 63/G of the National Public Education Act provide as follows:

Section 63/A

“(1) The National Teachers ’ Chamber (“the Chamber”) is the self-governing body established under public law which includes teachers who are employed as civil servants and who work in public-education institutions maintained by the State or its municipalities.

(2) Pedagogues appointed to work for the institutions described in paragraph (1) shall be members of the Chamber.”

Section 63/G

“(1) For the nationwide organisation of the Chamber ’ s operation, a Regional Presidium and a Regional Ethics Committee elected at regional level by the Regional Delegate Conference shall be set up. The Regional Presidium shall consist of a president, a vice president and additional Presidium members determined by statute. The remit and competence of the Regional Presidium, its members and the Regional Ethics Committee; the mode of transfer thereof; their operating procedure; and cases of termination of office shall be determined by statute.

(2) Officials of the Chamber and members of the administrative bodies shall not be:

a) party officials;

b) members of any nationwide chambers;

c) officials of any professional or advocacy organisation for teachers.

(3) Member of the National and Regional Presidiums, Supervisory Boards and Ethics Committees shall not concurrently be members of other bodies elected by the Chamber ’ s Regional Delegate Conference or the National Delegate Conference or each other ’ s next of kin.”

2. The Fundamental Law

12 . The Fundamental Law, in force as of 1 January 2012, provides as follows:

Article VIII

“(2) Everyone shall have the right to establish and join organisations.

...

(5) Trade unions and other interest representation organisations may be formed and may operate freely on the basis of the right to association.”

Article XV

“(2) Hungary shall guarantee the fundamental rights to everyone without discrimination and in particular without discrimination on grounds of race, colour, sex, disability, language, religion, political or other opinion, national or social origin, property, birth or any other status.”

Article 24

“(1) The Constitutional Court shall be the principal organ for the protection of the Fundamental Law.

(2) The Constitutional Court

...

c ) shall, on the basis of a constitutional complaint, review the conformity with the Fundamental Law of any legal regulation applied in a particular case;

d ) shall, on the basis of a constitutional complaint, review the conformity with the Fundamental Law of any judicial decision;

e) shall, at the initiative of the Government, one-fourth of the Members of the National Assembly, the President of the Kúria , the Attorney General or the Commissioner for Fundamental Rights, review the conformity with the Fundamental Law of any legal regulation; ... ”

3. The Constitutional Court Act

Section 26

“(1) Under Article 24(2)(c) of the Fundamental Law an individual or organisation involved in a particular case may lodge a constitutional complaint with the Constitutional Court where owing to the application of a piece of legislation allegedly contrary to the Fundamental Law in the court proceedings conducted in the particular case

a) their rights enshrined under the Fundamental Law have been violated, and

b) they have exhausted the available legal remedies or no remedies are available.

(2) Divergently from subsection (1), Constitutional Court proceedings may be initiated under Article 24(2 )( c) ... of the Fundamental Law exceptionally also where

a) the grievance has occurred directly, without a court ruling, as a result of the application or the taking effect of a provision of the law [allegedly] contrary to the Fundamental Law, and

b) no remedy is available for redressing the injury, or the complainant has already exhausted the remedies.”

Section 27

“An individual or organisation involved in a particular case may file a constitutional complaint with the Constitutional Court against a court ruling allegedly contrary to the Fundamental Law under Article 24(2)(d) of the Fundamental Law, where the ruling taken on the merits of the case or another ruling closing the court proceedings:

a) violate the complainant ’ s right enshrined under the Fundamental Law, and where

b) the complainant has already exhausted the remedies or no remedies are available to him.”

Section 29

“The Constitutional Court admits the constitutional complaint if a conflict with the Fundamental Law significantly affects the judicial decision, or if the case raises constitutional law issues of fundamental importance.”

Section 30

“(1) A constitutional complaint may be submitted within 180 days counted from the entry into force of the allegedly unconstitutional provision of law.

...

(5) The Constitutional Court shall decide on constitutional complaints within a reasonable time ...”

Section 41

“(1) If the Constitutional Court holds, in the procedure under sections 24 or 25-26, that a provision of law in force is in breach of the Fundamental Law, it quashes that provision partly or entirely.”

Section 55

“(1) The Secretary General prepares the proceedings of the Constitutional Court as specified in this Act and in the Rules of Procedure of the Constitutional Court.

(2) First, the Secretary General examines whether the petition is suitable for initiating Constitutional Court proceedings and meets the requirements on the format and content of such a petition specified in this Act, and whether there are obstacles to the proceedings.

...

(5) The decision of the Constitutional Court to reject a petition without examining the merits shall be taken – at the proposal of the Secretary General – by a single judge of the Constitutional Court.”

Section 56

“(1) The Constitutional Court shall decide on the admission of a constitutional complaint sitting as a panel determined in its Rules of Procedure.

(2) The panel shall examine in its margin of appreciation the content-related requirements of the admissibility of a constitutional complaint – in particular that of being concerned, for the purposes of sections 26 to 27, that of exhaustion of legal remedies and the conditions specified in sections 29 to 31.

(3) In case of non-admission, the panel gives a decision containing a short reasoning specifying the ground for rejection.

(4) An admitted constitutional complaint is to be submitted by the rapporteur for an examination on the merits to the standing panel, specified by the Rules of Procedure of the Constitutional Court, which adjudicates the case. ”

14 . The explanatory memorandum of the Bill of the Constitutional Court Act contains the following passage:

“A [constitutional] complaint should primarily be available in cases where the legal provision has already been applied by the authorities ... It is [moreover] justifiable that [those concerned] may approach the Constitutional Court also if the legal provision caused a grievance in breach of the Fundamental Law in a direct manner or by way of an act not subject to judicial review.”

15 . Decision no. 3105/2012 .( VII.26.)AB of the Constitutional Court contains, in paragraph 3, the following passage:

“In terms of the exceptional complaint, since it challenges directly the legal provision, the examination of the complainant ’ s being concerned is of particular importance, because the exceptional complaint is differentiated, from the earlier version of the ex-post constitutionality review available to anyone, by the personal, direct and actual grievance of the complainant ’ s fundamental right.”

COMPLAINT

16 . The applicant complained that compulsory Chamber membership for teachers like him – that is to say, teachers employed in public schools – was discriminatory and amounted to an infringement of his rights under Article 10 read alone and in conjunction with Article 14 of the Convention.

THE LAW

17 . The applicant submitted that he, as a teacher serving in public education, was obliged by the National Public Education Act to be member of the Chamber. In his view, this was discriminatory and in breach of his rights under Article 10 read alone and in conjunction with Article 14 of the Convention. These provisions read as follows:

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Arguments of the parties

1. The Government

18 . The Government first argued that the applicant had not exhausted domestic remedies, in breach of Article 35 § 1 of the Convention. They submitted in particular that – in a case like the present one, where the alleged grievance flowed directly from the enactment of the law, rather than occurring by way of judicial application of the law – the applicant should have introduced a constitutional complaint within 180 days of the entry into force of the impugned legislation, under section 26(2) of the Constitutional Court Act. In the Government ’ s opinion, this was an effective remedy which the applicant had not availed himself of.

2. The applicant

20 . The applicant argued that a constitutional complaint under section 26(2) of the Constitutional Court Act was not an effective remedy. He noted that even a successful complaint did not entail pecuniary compensation. He further asserted that the constitutional complaint procedure could last so long as to make it ineffective, for want of binding procedural deadlines. He also pointed out that the procedure was subject to a decision of admissibility given in the Constitutional Court ’ s discretionary power. Moreover, he underlined the condition of the case raising constitutional law issues of “fundamental importance” and the “exceptional” character of the procedure, elements lai d down respectively in sections 29 and 26(2) of the Constitutional Court Act, both proving, in his view, the discretionary nature of the Constitutional Court ’ s procedure. Lastly, he submitted that in the years 2012 to 2016, only 6.1%, 13%, 16%, 17% and 15%, respectively, of the complaints were decided by the Constitutional Court on the merits.

21 . The applicant moreover submitted that he was the victim of a continuing violation, to which the six-month rule did not apply.

B. The Court ’ s assessment

22 . The Court will first examine the Government ’ s objection of non-exhaustion of domestic remedies.

1. General principles

24 . States do not have to answer before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Vučković and Others , cited above, § 70 , and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 115, ECHR 2016 ). Indeed, the Court has frequently held that, in accordance with the principle of subsidiarity, it is appropriate that the national courts should initially have the opportunity to determine questions of compatibility of the domestic law with the Convention, and that, if an application is nonetheless subsequently brought to Strasbourg, the Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).

25 . At the same time, there is a need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria , 16 July 1971, § 89, Series A no. 13). The rule of exhaustion is neither absolute nor capable of being applied automatically; in monitoring compliance with this rule, it is essential to have regard to the circumstances of the individual case (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009 ).

2. Application of these principles in previous Hungarian cases concerning the effectiveness of a complaint before the Constitutional Court

27 . With specific regard to a constitutional complaint in the Hungarian legal system, the Court recalls that a constitutional complaint, as it operated under the rules on the Constitutional Court in place until the end of 2011, was declared an ineffective remedy by a decision of the European Commission of Human Rights (see Vén v. Hungary , no. 21495/93, Commission ’ s decision of 30 June 1993), notably because the Commission was of the view that the Constitutional Court under the rules then in place could not “quash or modify specific disciplinary measures taken against an individual by State officials”.

28 . A similar approach was adopted by the Court in the case of Csikós v. Hungary (no. 37251/04, §§ 17-19, 5 December 2006) where, in the circumstances of the particular case, a constitutional complaint was not considered an effective remedy because it did not provide a guarantee for successful complainants to have the criminal proceedings at issue reviewed. In K.M.C. v. Hungary (no. 19554/11, § 28, 10 July 2012) the Court found that the theoretical avenue of having brought a court action for the only purpose of enabling the labour court to potentially refer the case to Constitutional Court was too speculative to be required of the applicant.

29 . However, the domestic legal context changed significantly in 2012 with the enactment of the Fundamental Law and the new Constitutional Court Act (see paragraphs 12 and 13 above). From the perspective of the new legislation, the Court has so far examined only a few applications.

30 . It held in particular, in Hálózati Gyógyszertárak Szövetsége v. Hungary (( dec. ), no. 66925/12, 14 May 2013), that the applicant ’ s constitutional complaint introduced in the new scheme could not possibly extend the six-month time-limit for the purposes of Article 35 § 1 because it had been rejected partly as falling outside the Constitutional Court ’ s jurisdiction and partly as concerning matters essentially the same as in previously adjudged cases. In Magyar Keresztény Mennonita Egyház and Others v. Hungary (nos. 70945/11 and 8 others, § 50, ECHR 2014 (extracts)), the Court noted that the Constitutional Court had annulled the original form of the impugned legislation with retrospective effect, but this ruling had not provided the applicant churches with any redress with regard to the ability to receive donations and subsidies, which was an aspect of “crucial importance” for them; consequently, the constitutional complaint was not considered an effective remedy. In Vékony v. Hungary ( no. 65681/13 , § 24, 13 January 2015), the Court did not examine the effective nature of the constitutional complaint as such, but held that the non-pursuit of an action in compensation against the lawmaker – as and when underpinned by a successful constitutional complaint – could not be reproached to the applicant. In Karácsony and Others v. Hungary ([GC], nos. 42461/13 and 44357/13 , §§ 81-82, ECHR 2016 (extracts)), the Court again expressly refrained from giving a general ruling in the matter while holding, with respect to the specific circumstances of that case, that “ a successful outcome of [constitutional complaint] proceedings did not offer the applicants a possibility to request any form of rectification of the disciplinary decisions since there were no regulations in Hungarian law to that effect” . Finally, in Király and Dömötör v. Hungary (no. 10851/13, § 49, 17 January 2017), the Court did not require the applicants to have approached the Constitutional Court for the reason that “the Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life”.

31 . The Court notes however that the earlier case-law referred to in paragraphs 27 and 28 above provides no guidance in the instant application because it concerned a legal environment which has since changed radically (see paragraph 29 above). Moreover, none of the Court ’ s more recent cases dealing with the problem (see paragraph 30 above) contain a general assessment of the effective character of the constitutional complaint in the new system and especially that of a complaint under section 26(2). In Hálózati Gyógyszertárak Szövetsége (cited above), the constitutional complaint was simply incapable of producing the desired legal effect and therefore an analysis of its effectiveness in general terms was not warranted. In Magyar Keresztény Mennonita Egyház and Others (cited above), it was the specific issue of failure to restore the applicant churches ’ ability to be subsidised and donated to that led the Court to hold that the constitutional complaint was ineffective. In Vékony and in Karácsony and Others (both cited above), the Court forewent the general assessment of effectiveness of a constitutional complaint and limited its findings to the specific circumstances. Lastly, in Király and Dömötör (cited above), the reason for absolving the applicants from approaching the Constitutional Court was that the Government had not demonstrated the presence, in the Hungarian constitutional system, of the very specific right sought by the applicants.

3. Application of these principles in the present case

32 . Against these antecedents, the Court is now called on to examine whether, having regard to the particular circumstances of the applicant and of the nature of his complaint, the remedy indicated by the Government – namely, a constitutional complaint under section 26(2) of the Constitutional Court Act (see paragraph 18 above) – was accessible, effective and capable of offering a sufficient redress.

34 . The Court further notes that the applicant ’ s complaint relates to the rights of freedom of association and of prohibition of discrimination, both of which are enshrined in the Fundamental Law (see paragraph 12 above).

35 . It is true that section 41 of the Constitutional Court Act contemplates the quashing of a legal provision in breach of the Fundamental Law, but provides no possibility of compensation or other measures of redress (see paragraph 13 above). However, for the Court, this fact does not exclude the remedy ’ s efficiency in the instant case, since the removal of the impugned provisions would have, in all likelihood, terminated the membership complained of – itself an ipso iure consequence of the law. Therefore, the Court is satisfied that a successful constitutional complaint under section 26(2) of the Constitutional Court Act would have been capable of putting an end to the grievance, restoring the status quo ante the adoption of the National Public Education Act. Indeed, had the applicant availed himself of a constitutional complaint shortly after the enactment of the law, a positive outcome may have secured him redress of an essentially preventive nature, rendering a compensatory remedy unwarranted. Moreover, since the occurrence of the alleged grievance was an immediate, rather than postponed, consequence of the enactment of the impugned law, the statutory 180-day time-limit provided ample opportunity for the applicant to lodge a constitutional complaint.

36 . The remedy suggested by the Government is therefore one which may afford the highest national court the possibility to examine the violations alleged in the present case (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 – III), given that the present application was introduced well after 1 January 2012, the date of enactment of the Constitutional Court Act (see paragraph 13 above) .

37 . As regards the question whether a constitutional complaint under section 26(2) would have provided, in practice, a reasonable prospect of success, the Court observes that the Government have not provided any examples of cases where the Constitutional Court dealt with issues similar to the ones arising in the present application. However, this holds true for the Court as well; the question of compulsory membership in the Hungarian professional chamber at issue having never before been submitted to it.

38 . Aware of its supervisory role subject to the principle of subsidiarity (see the case-law quoted in paragraph 24 above, as well as A, B and C v. Ireland [GC], no. 25579/05, § 1 42 , ECHR 2010 ), 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 possibility to examine the novel issues arising in the applicant ’ s case. At this juncture, the Court would add that the fact that another complainant, an entity different from the applicant, has availed itself of a constitutional complaint does not alter this conclusion, especially since that complaint was declared inadmissible by the Constitutional Court without an examination on the merits on grounds which appear to be inapplicable in the applicant ’ s own situation (see paragraph 9 above).

40 . As to the allegedly discretionary features of the remedy suggested, the Court observes that the wording of section 26(2) of the Constitutional Court Act contemplates that the procedure described can be initiated “exceptionally” (see paragraph 13 above) . However, the Court is not convinced that this term restricts in any manner a complainant ’ s right to approach the Constitutional Court. Rather, it seems to denote the mere fact that an unconstitutional law may cause grievance also in a direct way, that is to say, without any judicial act intervening. This situation is also subjected to constitutional scrutiny, namely under section 26(2), although the typical circumstance envisaged by the Constitutional Court Act appears to be the one implicating an application of the law by the authorities.

41 . It is moreover true that a threshold requirement for the admissibility of a constitutional complaint is the presence of a question of fundamental constitutional importance, an element verified by the Constitutional Court within its competence. The Court notes that the issue at stake in the present case does not appear to be devoid of aspects of fundamental importance. In any event, the Constitutional Court ’ s verification bears similarity to the procedure of many national courts of the highest level, aimed at rationalising their workload and ensuring that non-meritorious applications do not congest those legal avenues. The existence of such a filtering system cannot, in the Court ’ s view, be taken as being akin to a purely discretionary system that would remove the efficiency of the remedy offered by the highest national jurisdiction (for the general principles on access to superior courts, see also Zubac v. Croatia [GC], no. 40160/12, §§ 80 to 86, 5 April 2018).

42 . In the light of the above considerations, the Court concludes that in the particular circumstances of the applicant ’ s case a constitutional complaint under section 26(2) against the impugned legislation, that is to say the National Public Education Act, was an accessible remedy offering reasonable prospects of success. Furthermore, the Court sees no circumstances exempting the applicant from having lodged such complaint in the present case. However, the applicant failed to do so (see paragraph 10 above).

43 . It follows that the applicant has not exhausted domestic remedies as required by Article 35 § 1 and the application must be rejected, pursuant to Article 35 § 4 of the Convention.

44 . This conclusion allows the Court to dispense with examining whether, as argued by the Government (see paragraph 19 above), the applicant failed to comply with the six-month rule.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 July 2018 .

Andrea Tamietti Ganna Yudkivska Deputy Registrar President