JOINT PARTLY DISSENTING OPINION OF JUDGES KJØLBRO, RANZONI AND SCHUKKING

1. While we agree with the finding of no violation of Article 1 of Protocol No. 12 of the Convention and the corresponding reasoning, in our view the applications should have been declared inadmissible, either for non ‑ exhaustion of domestic remedies or for non-observance of the six ‑ month rule.

2. As far as the exhaustion of domestic remedies is concerned, the Government argued that the applicants, first, could have lodged an administrative complaint under the Administrative Proceedings Act against the ministerial orders setting the timetable for the baccalaureate exams. Secondly, the applicants had at their disposal a complaint with the National Council for Combating Discrimination (“the NCCD”).

3. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights (see, among other authorities, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014). If a complaint raised before the Court has not been put, either explicitly or in substance, to the national courts, when it could have been raised in the exercise of a remedy available to the applicant, the national legal system has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is meant to give it (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 90, 23 June 2015).

4. It should be emphasised at the outset that the applicants did not lodge any complaint at the national level and did not use any remedy at all. They rather directly lodged their applications with the Strasbourg Court.

5. As regards the administrative complaint, the most relevant parts of the Administrative Proceedings Act are set out in paragraph 14 of the judgment as follows:

Article 1: Who can apply to court

“(1) Anyone who considers that their rights or legitimate interests were breached by a public authority by an administrative act or failure to respond to a request within the statutory time-limit, may apply to court for annulment of that act, acknowledgement of the right or legitimate interest at stake and compensation for the damage sustained. The legitimate interest may be either private or public.”

Article 2: Meaning of terms

“1. In accordance with the present law, the following words and phrases have the meaning set out below: ...

(c) administrative act: unilateral act, either individual or normative, issued by a public authority, in the exercise of its public power, with a view to organising the application of a law or concrete application of a law, and which gives rise to, modifies or extinguishes legal relations; ...”

6. The Ministry of Education sets the timetable for the baccalaureate at the beginning of each school year (see paragraph 6). It seems to us that the fact of a Ministry setting such a timetable is an administrative act within the meaning of Article 2 of the Administrative Proceedings Act, against which an administrative complaint can be lodged. This is a very common administrative law procedure, available in most, if not all, member States, which should in principle be exhausted. In a legal system in which fundamental rights are protected by the Constitution and the law, it is incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to apply those rights and, where appropriate, develop them in exercising their power of interpretation (see, mutatis mutandis , A, B and C v. Ireland [GC], no. 25579/05, § 142, ECHR 2010, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 101, 9 July 2015).

7. We are not convinced by the majority’s argument that the Government should have provided domestic decisions concerning actions brought against other ministerial orders, issued in other fields (see paragraph 49). We fail to see which inferences could be drawn from such decisions, which are not at all germane to the present issue.

8. Insofar as the applicants argued (see paragraph 40) that the structure and sequence of the final exams was strictly regulated by the National Education Act (“the NEA”), we observe that, in particular, the sequence of the exams was not regulated by that act. On the contrary, according to Article 77 (5) of the NEA the content of the exam curriculum as well as the timetable, methodology and organisation of the baccalaureate exam were set by the Ministry of Education and publicly announced for each year group at the beginning of the last year of secondary school (see paragraph 11).

9. Accordingly, we do not see any convincing argument why the applicants should have been exempted from lodging an administrative complaint against the ministerial order.

10. As far as the second remedy referred to by the Government is concerned, that is to say the complaint with the NCCD, the majority held that the applicants’ situation was identical to that already examined by the NCCD in a similar action against another ministerial order, and therefore the prospects of success were so low as to render the remedy futile (see paragraph 50).

11. In this respect, we would confine ourselves to noting that the applicant in that other case did suggest that the solution for eliminating discrimination would be to have pupils sit exams in only one of the two languages, namely their mother tongue (see paragraph 21), which means that his arguments were not identical to those of the applicants in the present case. Moreover, the High Court of Cassation and Justice declared his appeal null and void because he had not stated the reasons for his appeal (see paragraph 24). In other words, he had failed to exhaust all the available remedies. Consequently, we cannot support the majority’s conclusion that the prospects of success for the applicants in the present case were so low as to render that remedy futile.

12. Even if both of those remedies were to be considered ineffective and therefore did not need to be exhausted, the question arises whether the applicants lodged their complaints within the six-month time-limit pursuant to Article 35 § 1 of the Convention. The Government argued that the applicants should have lodged their applications with the Court within six months of the date the Ministry of Education had adopted the relevant order setting the timetable for the relevant school year’s baccalaureate exams (see paragraph 53).

13. We are in agreement with the Government’s point of view. In order to complain about the discriminatory manner in which the baccalaureate is organised, an applicant should do so at the time the timetable has become available and the possible consequence, the alleged discrimination, is foreseeable, and not a year later, when he or she has actually failed the exam. To argue otherwise would mean that the State only acts in a discriminatory manner against a section of all Hungarian students, namely those who failed their exams but not against those who passed them.

14. The majority did not engage at all with such arguments, but rather, without giving specific reasons, took as the starting point the date when the applicants received the results of their most recent baccalaureate (see paragraph 58). In particular, they did not explain why the applicants did not realise the effect of the impugned measure until after their failure in the most recent exams, even though that effect had been perfectly foreseeable from the outset. It is neither clear nor comprehensible why the date the prejudice actually occurred should be decisive, if such consequences had been foreseeable and, therefore, the applicants had already become aware of the alleged violation of their Convention rights at an earlier stage. In this context, we would like to point out that the applicants’ discrimination complaint concerns not the fact that they failed their exams but the alleged additional burden they had to endure as students having chosen to study in their mother tongue.

15. The majority simply referred to “the case-law quoted in paragraph 57” which makes reference to one single judgment, namely Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009. However, in the said paragraph the Court had only made the following general statement concerning the issue in question: “Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant.” No explanation whatsoever was given by the majority as to why, in the circumstances of the present case, they applied the last criterion, the only one in favour of the applicants. Moreover, our view that the six-month period ran from the moment the applicant became aware of the possible consequences of the ministerial order for them, that is to say the date of the publication of the respective order itself, seems to be supported by the decision referred to in paragraph 157 of the Varnava judgment, namely Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002.

16. For all these reasons, whether we rely on the non-exhaustion principle or the six-month rule, the present applications should in any event have been rejected as inadmissible.

STATEMENT OF DISSENT BY JUDGES MOTOC AND PACZOLAY

We are unable to follow the finding of the majority.