Information Note on the Court’s case-law 220

July 2018

Mendrei v. Hungary (dec.) - 54927/15

Decision 19.6.2018 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Effectiveness of constitutional complaint to challenge legislation directly affecting individual: inadmissible

Facts – The applicant, a teacher at a public educational institution, complained, under Articles 1 0 and 14 of the Convention, that he became ipso iure a member of the National Teachers’ Chamber (“the Chamber”), which was introduced by the National Public Education Act in 2013.

Law – Article 35 § 1 ( exhaustion of domestic remedies ): The Court was called on to examine whether a constitutional complaint under section 26(2) of the Constitutional Court Act 2012 was accessible, effective and capable of offering sufficient redress.

The Constitutional Court could examine constitutional complaints if the grievan ce had occurred directly as a result of the taking effect of a legal provision, provided the absence of any other remedies. The applicant’s case fell into that category.

Section 41 of the Constitutional Court Act contemplated the quashing of a legal provi sion in breach of the Fundamental Law, but provided no possibility of compensation or other measures of redress. However, this fact did 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 was satisfied that a successful constitutional complaint would have been capable of putting an end to the grievance, restoring the statu s 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 might have secured him redress of an essentially preventive nat ure, 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.

Regarding the question whether a constitutional complaint would have provided, in practice, a reasonable prospect of success, the Government had not provided any examples of cases where the Constitutional Court had dealt with issues similar to the ones ari sing in the present application. However, aware of its supervisory role subject to the principle of subsidiarity, the Court considered that it could not substitute its own view of the issues at hand for that of the Constitutional Court, which, for its part , had not been afforded the possibility to examine the novel issues arising in the applicant’s case.

The applicant’s arguments on the length of the Constitutional Court’s procedure and the success rate of complainants were largely of speculative and empir ical nature and not capable as such of proving that the remedy in question would not be effective in practice in the circumstances of the applicant’s case. As to the allegedly discretionary features of the remedy suggested, the wording of section 26(2) of the Constitutional Court Act contemplated that the procedure described could be initiated “exceptionally”, however, the Court was not convinced that that term restricted in any manner a complainant’s right to approach the Constitutional Court. It was moreo ver true that a threshold requirement for the admissibility of a constitutional complaint was the presence of a question of fundamental constitutional importance, an element verified by the Constitutional Court within its competence. The issue at stake in the present case did not appear to be devoid of aspects of fundamental importance. In any event, the Constitutional Court’s verification bore similarity to the procedure of many national courts of the highest level, aimed at rationalising their workload an d ensuring that non-meritorious applications did not congest those legal avenues. The existence of such a filtering system could not be taken as being akin to a purely discretionary system that would remove the efficiency of the remedy offered by the highe st national jurisdiction.

In sum, in the particular circumstances of the applicant’s case a constitutional complaint 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 saw no circumstances exempting the applicant from having lodged such a complaint in the present case.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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