The exhaustion of domestic remedies, if they are effective, is a necessary condition for an individual appeal before the Court. Control by the ECtHR of the effectiveness of the non-appealed remedy
JUDGMENT
Szalontay v. Hungary 04.04.2019 (no. 71327/13)
SUMMARY
Exhaustion of domestic remedies and effective remedies. Three people were crushed to death and died at a musical event. The applicant was convicted of murder by negligence of the deceased from the criminal courts. Although the applicant could file a constitutional complaint before the Constitutional Court, he did not appeal before it as he considered it an ineffective remedy. He then appealed to the ECtHR complaining of a lack of fair trial.
The European Court of Human Rights dismissed the action as inadmissible because the internal remedies were not exhausted, after having checked the effectiveness of the constitutional complaint (no appeal by the applicant), the legislation and the case-law of the Constitutional Court.
PROVISIONS
Article 6
Article 35
PRINCIPAL FACTS
The applicant, Győző Szalontay, is a Hungarian national who was born in 1974 and lives in
Kecskemét.
In January 2011 Mr Szalontay’s company agreed to sub-lease premises for a musical event to
another company. A stampede broke out during the event and three people were crushed to death.
Mr Szalontay was prosecuted and found guilty in June 2012 in a trial that attracted wide media
coverage of causing death by negligence. Among other things, the court found that he and other
organisers of the event had not carried out an assessment of how safely to evacuate people from
the venue.
Making the event safe had been a contractual obligation for the applicant and he had had to comply
with all the necessary regulations, including notifying the authorities of the event. The court
imposed a prison sentence of two years and eight months on the applicant.
On appeal, the Budapest High Court increased Mr Szalontay’s prison sentence to three years and
four months, suspending half of it for two years.
The appeal court dismissed defence arguments about procedural shortcomings during the trial,
including as regards defence questioning of witnesses and experts. The applicant did not challenge
any of the judges for bias during the proceedings or lodge a constitutional complaint.
THE DECISION OF THE COURT
The Government argued that Mr Szalontay had not complied with the rule of exhausting domestic
remedies before applying to Strasbourg as he had not made a constitutional complaint. He had also
failed to challenge the judges for lacking impartiality. Mr Szalontay submitted in particular that the
Government had not referred to any Constitutional Court decisions showing the effectiveness of the
suggested remedy. He also referred to the 2017 case of Király and Dömötör v. Hungary.
The Court noted that it had discussed the effectiveness of constitutional complaints in Hungary in
the 2018 decision Mendrei v. Hungary. In that case, it observed that up to 2011 it had several times
found that a constitutional complaint was not an effective remedy, but that the legal landscape had
changed after the 2012 enactment of the Fundamental Law and the new Constitutional Court Act.
In Mr Mendrei’s case it assessed the effectiveness of a complaint under section 26(2) of the
Constitutional Court Act to challenge the constitutionality of a domestic law and found that a
successful constitutional action would have settled his grievance. It thus rejected his application as
inadmissible.
In Mr Szalontay’s case the Government had suggested a remedy under section 26(1) and section 27
of the Constitutional Court Act – the former provision allowed a constitutional challenge to the
application in court proceedings of legislation which was contrary to the Fundamental Law, while the
latter could be used to complain about a court ruling which had allegedly breached the Fundamental
Law.
The Court observed that Mr Szalontay’s complaint could be covered by either provision as he had
complained about the application of the Code of Criminal Procedure, which had allegedly prevented
him from submitting a challenge for bias in an effective manner, of a lack of impartiality, and a
failure to observe the principle of equality of arms.
The Court noted that the right to a fair trial was enshrined in the Fundamental Law, meaning a
relevant constitutional right existed. That was a circumstance which made the case different from
the one referred to by the applicant, Király and Dömötör, which had concerned the intervention of
the police for the protection of private life, where no constitutional right had been found.
Sections 41 and 43 of the Constitutional Court Act stated that any law or court decision which
breached the Fundamental Law could be either struck down or quashed. A lack of provision for
compensation in the Fundamental Law was not an issue as a successful constitutional challenge
would result in new court proceedings, where the question of damages could be raised.
The Court was therefore satisfied that a successful action under section 26(1) and section 27
together, or under section 27 alone, could have resolved Mr Szalontay’s grievance as it could have
led to his criminal case being reviewed without the alleged procedural irregularities. There were no
reasons to exempt him from attempting those remedies, although the Court was ready to change its
stance if domestic practice showed they were ineffective.
The Court thus found that Mr Szalontay had not exhausted the necessary and effective domestic
remedies available to him and his complaint had to be rejected as inadmissible(echrcaselaw.com editing).
