FOURTH SECTION
DECISION
Application no. 22172/14
György KARSAI
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 4 June 2019 as a Committee composed of:
Faris Vehabović, President,
Iulia Antoanella Motoc,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 13 March 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, Mr György Karsai, is a Hungarian national, who was born in 1953 and lives in Budapest. He was represented before the Court by Mr D.A. Karsai, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was a lecturer at Pécs University since 1995. Under a 2011 law, lecturers had to declare their affiliation to a particular university for the purposes of assessing the operational requirements of higher education institutions. One lecturer could declare one exclusive affiliation only.
5. On 23 September 2013 the applicant withdrew his declaration made in respect of Pécs University and made another one, in relation to another institution of higher education.
6. This state of affairs allowed Pécs University to dismiss him, which it did, on 18 November 2013.
7. In such a situation the employer was exempted from providing a severance payment to the dismissed lecturer – which in the applicant’s case otherwise would have been a significant amount of money corresponding to 18.5 years of service with Pécs University.
8. The applicant did not challenge these measures before the labour court; nor did he file a constitutional complaint.
B. Relevant domestic law
9. Article XIII of the Fundamental Law provides:
“(1) Everyone shall have the right to property and inheritance. Property shall entail social responsibility.
(2) Property may only be expropriated exceptionally, in the public interest and in those cases and ways provided for by an Act, subject to full, unconditional and immediate compensation.”
10. Article XXVIII of the Fundamental Law provides:
“(7) Everyone shall have the right to seek legal remedy against any court, authority or other administrative decision which violates his or her rights or legitimate interests.”
COMPLAINTS
11. The applicant complained under Article 1 of Protocol No. 1 read alone and in conjunction with Article 13 of the Convention about the loss of the legitimate expectation of severance payment and the absence of an effective remedy.
THE LAW
12. The applicant complained about the loss of the legitimate expectation of severance payment and the absence of an effective remedy. He relied on Article 1 of Protocol No. 1 read alone and in conjunction with Article 13 of the Convention.
Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
13. The Government submitted that the applicant should have brought a labour-law action, and that in case of unfavourable outcome he should have complained to the Constitutional Court under section 26(1) of the Constitutional Court Act. The applicant disagreed, arguing that the constitutional complaint, preceded by a burdensome labour litigation, would not have been an effective remedy.
14. 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 (see Szalontay v. Hungary (dec.), no. 71327/13, 12 March 2019).
15. The present case concerns the applicant’s deprivation of severance payment, that is to say, an alleged breach of his right to peaceful enjoyment of possessions, which is enshrined in Article 1 of Protocol No. 1 to the Convention and Article XIII of the Fundamental Law (see paragraph 8 above). It follows that a constitutional complaint – enabled by preceding labour-law litigation – would have been an effective remedy to exhaust in the circumstances.
16. Since the applicant did not avail himself of this legal avenue, the complaint under Article 1 of Protocol No. 1 must be rejected for non‑exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.
17. Moreover, there was an effective remedy available to the applicant, namely a labour litigation followed, in case of unfavourable outcome, by a constitutional complaint. It follows that the complaint under Article 13 of the Convention must be rejected as manifestly ill-founded, according to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 June 2019.
Andrea TamiettiFaris Vehabović
Deputy RegistrarPresident
Full & Egal Universal Law Academy