JOINT DISSENTING OPINION OF JUDGES KŪRIS, RANZONI AND RAVARANI

With all due respect to our colleagues, we cannot agree with their findings concerning the non-exhaustion of domestic remedies, more precisely that there was no effective remedy under Hungarian law. We are of course ignorant of Hungarian law and can only rely upon what is contained in the accessible file and the reasoning in the judgment, but from what was available to us, we have to conclude that there was an effective remedy under Hungarian law which the applicant omitted to exhaust.

The applicant explained that after a dismissal he considered to be unlawful, his subsequent claim was ultimately dismissed by the Supreme Court after having been allowed by the first-instance labour court and the court of appeal and that during the proceedings before the Supreme Court his written complaint had been erroneously overlooked. The Government argued that the applicant should have brought a liability action against the State as provided for by Section 349 of the Civil Code. [1]

The majority are of the opinion that while such an action may produce some pecuniary compensation, it is normally not capable of prompting either the reopening or reinstatement of the impugned procedure and consequently does not afford adequate redress for the alleged violation of Article 6 § 1. They explain, in particular, that the applicant could not have obtained against his former employer full redress for the damage alleged as, even if successful, such action could not have led either to the calculation and award of the amounts sought in the original claim before the labour court or to the case being examined afresh by the domestic courts.

Such an assertion disregards the very nature of a claim in liability.

As to the reopening of the proceedings, one should not lose sight of the fact that the present case is not a criminal case where a conviction obtained in violation of a Convention provision could not be made good by the award of a certain sum of money and where the reopening was the only efficient remedy. The applicant ’ s claim was civil by nature. Following the dismissal by his employer, he had claimed severance pay, outstanding wages, a lump sum in compensation and default interest. [2] Labour-law claims fall under the civil limb of Article 6. [3]

It is in the very nature of a claim in tort and common ground that if anything wrongful has happened and that if some liability is found, the consequent loss has to be repaired in kind, and if this is not possible, it is compensated by equivalent, i.e. the allocation of a sum of money. If the original claim was for money, things are even more straightforward as the pecuniary loss suffered is compensated by an equivalent sum of money. Even if the respective natures of the original claim (it might be, for example, a sum of money contractually stipulated) and the compensation allocated in the liability claim are necessarily different, as such compensation is always legally classified as damages, this does not change the principle of the equivalence of the compensation.

In the present case, the applicant ’ s claim was for money, and the compensation would have been monetary, too. The question remains if the compensation could have entirely made good the alleged losses.

The majority answer that question in the negative. We fail to see why. It is not true that the judge who is called on to assess the tort claim could not “redo” the initial proceedings by calculating the sum to which the applicant would have been entitled if the initial proceedings had been properly conducted. This is the normal task of a court in a liability claim: the judge, with hindsight, considers what ought to have to be done and, if it was done correctly, what loss would have been avoided. The amount of this loss he awards in the form of damages.

If the said system is not applicable in Hungary, the majority should have explained this. Quite to the contrary, it flows from the case-law cited in paragraph 14 of the judgment that under Hungarian law, substantial damages can be awarded to compensate for shortcomings in previous judicial proceedings. This was confirmed in Mihály Kőszegi v. Hungary [4] where the Court noted that the applicant could have, under Section 349 of the Hungarian Civil Code, sought compensation for any damage he might have suffered on account of the domestic courts ’ mismanagement of his claims, and that an official liability action was a remedy to be exhausted in similar circumstances .

The majority ’ s judgment attempts to distinguish the present case from Kőszegi by stating, as mentioned before, that the court dealing with the liability case could not calculate the amounts claimed in the original labour-law claim and that the labour-law proceedings could not be reopened. In Kőszegi the applicant had claimed, in addition to his original claim, the payment of certain amounts of lost profit, accrued interest and social security contributions, and had challenged a previous ruling that had allocated him a certain amount based on a technical expert ’ s findings. Before the Court, he claimed that the domestic courts had omitted to take into consideration his supplemental claims. Although a judge dealing with a subsequent tort claim would have had to proceed to assess those claims, involving a series of complicated calculations, the Court nevertheless found that the applicant should have exhausted this remedy before launching his application with the Court. We simply fail to see any difference with the said case, which is, moreover, also Hungarian.

The Court itself has validated the way of ex post calculation based on a probability assessment of what the applicant could have expected to obtain if the first proceedings had been conducted in a correct manner. In the judgment of Leoni v. Italy [5] , which predated the Kőszegi decision, the Court applied the mechanism of “lost opportunity” – perte d ’ une chance – “[w] hilst the Court cannot speculate as to the outcome of the proceedings concerned had there been no violation of the Convention, it considers that the applicant suffered a loss of real opportunity” [6] . Pursuant to the well-known mechanism, once liability is established, in order to assess the consistency of the damage, the judge performs a probability assessment, and if he deems that the probability of success was very high, he can allocate up to 100% of the missed profit in damages.

Things are obviously different if the domestic remedies are unable to compensate the loss. That was the situation in Iatridis v. Greece [7] , where the applicant had challenged the illegal dispossession of a cinema. The Court held that as monetary compensation was the only available remedy at the domestic level, whereas the claim was for restitution, the domestic remedy was not effective.

It is not difficult to find a criterion to distinguish between the two situations: one has to establish whether the envisaged remedy is able to fully compensate for the loss sustained: if the claim is for a sum of money and if the domestic remedy provides for monetary compensation, the remedy is effective. If the claim is for something that is not directly monetary and if the domestic remedy only offers monetary compensation, such remedy is not effective.

If one applies this principle to the present case, the conclusion is clear: the applicant had lodged a claim for money (severance payment, outstanding wages, a lump sum in compen sation and default interest). A claim in liability against the State could have provided him with the full monetary compensation which he had not obtained in the first round of proceedings.

For all these reasons we believe that, in the present case, the action in tort against the State was an effective remedy and that the application should have been declared inadmissible for failure to exhaust domestic remedies.

The solution adopted by the majority risks to ruin a very important and helpful legal instrument consisting in a tort action against the State in order to compensate losses triggered by the misbehaviour of official authorities, including courts. Moreover, the judgment undermines the subsidiary nature of the Convention system.

[1] . For the wording of the said provision, see § 13 of the judgment .

[2] . See § 6 of the judgment .

[3] . See, e.g., Sabeh El Leil v. France [GC], no. 34869/05 , 29 November 2011 ; Regner v. the Czech Republic [GC] , no. 35289/11, 19 September 2017 .

[4] . Mihály Kő szegi v. Hungary ( dec. ), no. 36830/97, 15 March 2001 .

[5] . See Leoni v. Italy , no. 43269/98, 26 October 2000 .

[6] . See § 32 of the judgment .

[7] . See Iatridis v. Greece , no. 31107/96, 25 March 1999 .