SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10161/06 by Zoltán MARSCHALKÓ against Hungary

The European Court of Human Rights ( Second Section), sitting on 28 June 2011 as a Chamber composed of:

Françoise Tulkens , President, David Thór Björgvinsson , Dragoljub Popović , Giorgio Malinverni , András Sajó , Guido Raimondi , Paulo Pinto de Albuquerque , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 7 March 2006,

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

The applicant, Mr Zoltán Marschalkó , is a Hungarian national who was born in 1957 and lives in Budapest . The respondent Government were represented by Mr L. Höltzl , Agent, Ministry of Public Administration and Justice. The applicant was represented by Mr A. Cech , a lawyer practising in Budapest .

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

The applicant used to work as an administrative assistant at the Embassy of the United States of America in Budapest . On 3 March 2002 his employment was terminated. The applicant challenged his dismissal in court.

In the proceedings before the Budapest Labour Court , on 6 December 2002 counsel for the respondent stated that the Embassy had no legal capacity and the right respondent to be sued was the Government of the United States . The applicant insisted on the Embassy being the respondent and demanded that information on the relevant foreign law be requested from the Hungarian Ministry of Justice.

On 28 February 2003 the proceedings were suspended pending receipt of the relevant information from the Ministry of Justice.

On 30 September 2003 the Ministry of Justice informed the Labour Court that it had requested the assistance of the Hungarian Ministry of Foreign Affairs in obtaining the relevant information.

At the hearing of 9 July 2004 counsel for the respondent stated that the jurisdiction of Hungarian courts was not contested in respect of the US Government but the Embassy itself had no legal capacity and could not be sued. The applicant insisted on the recognition of the Embassy ’ s legal capacity.

On 17 September 2004 the US Government submitted observations on the merits of the applicant ’ s claims. At the hearing of 13 May 2005 the applicant was heard on the merits of the case.

On 2 June 2005 counsel for the US Government submitted information on the relevant US law and stated that the Embassy, of its own right, could not sign a power of attorney for him as requested by the applicant since, in accordance with the public law provisions in force in the United States, it was only the Government of the United States which had standing as respondent in judicial proceedings.

On 22 July 2005 the Ministry of Justice informed the Labour Court that it did not have sufficient information on the relevant US law and that there was no international treaty in force between Hungary and the United States under which it could extract such information, therefore the same was still being awaited from the US authorities via the Ministry of Foreign Affairs.

At the hearing of 22 September 2005, the president of the court invited the applicant to state whether he was willing to modify his claims as regards the person of the respondent, that is, to name the US Government as respondent. The applicant personally stated that he was not, and his counsel was in agreement with him. Subsequently the Labour Court discontinued the proceedings on account of the respondent ’ s lack of legal capacity to conduct legal proceedings under American, and consequently under Hungarian, law. The evidence relied on by the Labour Court concerning the content of American law in this regard was supplied by the US Government through their counsel.

On appeal, on 4 January 2006 the Budapest Regional Court upheld the decision of the Labour Court . This order was the final decision in the applicant ’ s case. The applicant did not file any petition for review by the Supreme Court.

COMPLAINT

The applicant complained under Article s 6 and 13 of the Convention that the Hungarian courts refused to hear his case on the merits.

THE LAW

The applicant complained that the conduct of the Hungarian courts amounted to an infringement of his right to access to court, enshrined in Article 6 § 1 of the Convention, which provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government submitted that the application should be rejected for non-exhaustion of domestic remedies, since the applicant did not file a petition for review with the Supreme Court. On the merits of the case, they argued that the sole reason for the discontinuation of the hearing of the applicant ’ s case was his unwillingness, despite information to that effect provided by the president of the Labour Court, to direct his action against the Government of the United States, which was the appropriate respondent having legal capacity.

The applicant argued that a petition for review would not have been an effective remedy in the circumstances, since the absence of the Embassy ’ s legal capacity, a crucial issue in the case, was part of the findings of fact and as such could not be disputed in review proceedings. On the merits, he argued that the Embassy was the right respondent since it had employed him of its own right, rather than acting on behalf of the US Government. In any event, it was unfair that the Labour Court accepted the respondent ’ s statement as to its own lack of legal capacity and did not await the result of the official enquiry or rely on the opinion of an expert. This amounted to de facto recognition of the respondent ’ s sovereign immunity, unacceptable in the circumstances (cf. Cudak v. Lithuania [GC] , no. 15869/02, ECHR 2010 ‑ ...), especially given the obvious difficulties of suing the US Government.

The Court considers that it is not necessary to deal with the Government ’ s objection based on the non-exhaustion of domestic remedies, because the application is in any event inadmissible for the following reasons.

The Court notes that the domestic courts discontinued the examination of the applicant ’ s action because – despite warning – he refused to direct it against the US Government, although the latter alone had legal capacity in the circumstances. It is therefore satisfied that the non-pursuit of the applicant ’ s claims was solely due to the course of action chosen by the applicant himself. It cannot therefore be said that his right to access to a court has been frustrated. As to the way in which the domestic courts came to the conclusion that the Embassy had no legal capacity, the Court reiterates that – i n so far as this complaint may be understood to concern the obtaining and the assessment of the evidence and the result of the proceedi ngs before the domestic courts – according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain [GC], no. 30544/96, § 28 , ECHR 1999 ‑ I ).

The application is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens - Passos Françoise Tulkens              Deputy Registrar President