Information Note on the Court’s case-law 213

December 2017

Kósa v. Hungary (dec.) - 53461/15

Decision 21.11.2017 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to bring individual action following dismissal of public interest action based on different factual situation: inadmissible

Facts – In the Convention proceedings the applicant, who was of Roma origin, complained under Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 that the discontinuance of a school bus service between her home and her chosen primary school meant that, for over two years, her only option had been to attend a local Greek Cathol ic school which essentially catered for Roma children and provided inadequate education.

Since the applicant had not brought domestic proceedings to contest the lawfulness of the authorities’ action on her personally, the Government objected that she had failed to exhaust domestic remedies. The applicant contended, however, that a public interest action had been launched by a non-governmental organisation (the Chance for Children Foundation – CFCF), but had ultimately been dismissed by the Supreme Court ( K úria ). It would therefore have been futile and unreasonable for her to bring an individual action.

Law – Article 35 § 1: Since the domestic legislation explicitly allowed certain civil society organisations, such as the CFCF, to bring legal proceedings in defence of a larger group of people affected by a violation, or risk of a violation, of the requirements of equal treatment, in principle, it would be conceivable to accept the public interest litigation as a form of exhausting domestic remedies for the pu rposes of Article 35 § 1. Such a proposition would be especially justified in relation to alleged discrimination against a vulnerable group requiring special protection, such as Roma children. Access to justice for members of such groups should be facilita ted so as to provide effective protection of rights. The legislation in question was a laudable example of that facilitative and protective approach.

However, although the judgment rendered in the public interest case concerned a subject matter which was c losely related to the grievances the applicant had brought before the Court in the Convention proceedings, it did not correspond exactly to her individual situation. The domestic court’s finding that there had been no segregation was based on the premise t hat the Greek Catholic school was the voluntary and informed choice of the pupils’ parents and that the pupils had not been prejudiced with regard to the quality of education provided. However, the applicant had firmly contested the fulfilment of those pre conditions in relation to her particular situation. Her application was thus based on facts which were different from those established by the domestic authorities.

Accordingly, the CFCF’s public interest litigation had not provided the national courts wi th the opportunity to address and thereby prevent or put right the particular Convention violation alleged and had not provided the Court with the views of the national courts concerning the applicant’s grievances. The applicant had thus failed to exhaust domestic remedies.

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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