FOURTH SECTION

DECISION

Application no. 67123/14 Marianna BERÉNYI against Hungary

The European Court of Human Rights (Fourth Section), sitting on 15 September 2020 as a Committee composed of:

Branko Lubarda , President, Carlo Ranzoni, Péter Paczolay , judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 30 September 2014,

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, Ms Marianna Berényi , is a Hungarian national, who was born in 1961 and lives in Kecskemét . She was represented before the Court by Mr A. Imre , a lawyer practising in Budapest.

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

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

4 . The applicant and her former husband were the sole shareholders of two companies, one primarily run by the applicant and one primarily run by her husband. During their marriage they were close friends with several judges of the Kecskemét High Court. After their separation, the husband started a relationship with Dr Z., one of the judges of the Kecskemét District Court.

5 . The applicant and her former husband lodged several lawsuits against each other and/or the companies run by the other party. In these proceedings, the Kecskemét High Court, the Kecskemét District Court or the Kecskemét Administrative and Labour Court had jurisdiction, but their judges mostly declared personal bias and recused themselves.

6 . On 7 August 2013 the applicant ’ s former husband, a 48%-shareholder in one of the family companies, lodged yet another action against the company, whose only other shareholder was the applicant at 52%.

7 . The case was assigned to one of the judges at the High Court, Dr B., who stated that she was not biased. All other judges of the High Court recused themselves.

8 . Despite the fact that the lack of impartiality of the Kecskemét High Court as such had been established in other law suits concerning the applicant and her former husband, in the instant case the applicant ’ s motion for bias against the judges of the High Court was rejected by the Szeged Court of Appeal on 7 October 2013. The Court of Appeal pointed out that the mere fact that Dr Z., judge at the Kecskemét District Court, was the common-law wife of the applicant ’ s former husband (see paragraph 4 above) did not render the sitting judge Dr B. biased if she said she was not; that the president of the High Court and his wife were common friends of both the applicant and her former husband, which circumstance therefore could not justify the exclusion of the whole court; and lastly, that the High Court had not been found biased in all the previous cases.

9 . As the single judge hearing the case, Dr B. partially ruled against the company run by the applicant on 6 November 2013.

10 . The applicant appealed. She reminded the appellate court that all the local courts ’ bias had already been established – and, indeed, Dr B. herself had recused herself once – in earlier proceedings. She submitted in addition that her former husband and his common-law wife, Dr Z., as well as Dr B., attended the birthday function of the president of the Kecskemét High Court in September 2013, which circumstance cast a particular shadow on Dr B. ’ s impartiality.

11 . On appeal, the Szeged Court of Appeal upheld the judgment on 18 March 2014 (service: 31 March 2014). Challenging the judgment before the Kúria was excluded by law.

12 . The applicant did not file a constitutional complaint.

13 . In reply to the applicant ’ s complaint about, in particular, the participation of Dr B., on 4 April 2014 the president of the High Court explained that it could well happen that a previously unbiased judge becomes biased or vice versa , depending on the circumstances and the subject matter of the case; and pointed out that, at the incriminated birthday function, Dr B. was seated at a table different from that of the applicant ’ s former husband and Dr Z.

14 . In subsequent other litigations, bias on the High Court ’ s part was again established.

15 . Article XXVIII of the Fundamental Law reads as follows:

“(1) Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.”

16 . The relevant provisions of the Constitutional Court Act are set out in Szalontay v. Hungary (( dec. ), no. 71327/13, § 22 , 12 March 2019) .

COMPLAINT

17 . The applicant complained that the judge deciding her case was not impartial, in breach of Article 6 § 1 of the Convention.

THE LAW

18 . The applicant submitted that the judge hearing her case lacked impartiality which infringed Article 6 § 1 of the Convention.

Article 6 § 1 reads as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

19 . The Government submitted that the applicant should have pursued a constitutional complaint. The applicant disagreed, arguing that at the time when the case had been introduced the Court ’ s case-law had not required the exhaustion of that remedy.

20 . The Court has already held that a constitutional complaint under section 26(1) and/or section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary. The Court is satisfied that this remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Szalontay v. Hungary ( dec. ), cited above, in particular §§ 34 and 39, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II ).

21 . The present case concerns complaints about an alleged breach of the requirement of an impartial tribunal, which is enshrined in Article 6 § 1 of the Convention and Article XXVIII of the Fundamental Law (see paragraph 15 above). It follows that the constitutional complaint would have been an effective remedy to exhaust in the circumstances.

22 . Since the applicant did not avail herself of this legal avenue, the application must be rejected for non-exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020 .

Ilse Freiwirth Branko Lubarda Deputy Registrar President