FOURTH SECTION
 
 
 
 
 
 
 
CASE OF SCHESZTÁK v. HUNGARY
 
(Application no. 5769/11)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
21 November 2017
 
 
 
FINAL
 
21/02/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Scheszták v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ganna Yudkivska, President,
 Vincent A. De Gaetano,
 Faris Vehabović,
 Egidijus Kūris,
 Carlo Ranzoni,
 Georges Ravarani,
 Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 11 July, 3 and 10 October 2017,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 5769/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Sándor Zsigmond Scheszták (“the applicant”), on 18 January 2011. 2. The applicant was represented by Ms M. Palásti, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3. The applicant alleged, in particular, that the labour law proceedings to which he had been a party had been unfair, in breach of Article 6 § 1 of the Convention, because the Supreme Court had given judgment without awaiting his pleadings. 4. On 14 March 2016 this complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1953 and lives in Ercsi. 6. On 28 February 2007 the applicant filed an action with the Székesfehérvár Labour Court against his former employer, claiming unlawful dismissal. On 6 June 2008 the court found in his favour and obliged the respondent to the action to pay him a severance payment, outstanding wages, a lump sum in compensation, and default interest. 7. On appeal, on 25 February 2009 the Fejér County Regional Court changed the judgment in part. In June 2009 the respondent filed a petition for review. 8. In an order of 2 June 2010 the Supreme Court forwarded the respondent’s petition to the applicant and informed him that, within eight days of receiving the order, he could file comments on the respondent’s petition and/or request an oral hearing. 9. On 7 June 2010 the applicant received the order, and on 14 June 2010 he dispatched his comments on the petition for review. The document was received by the Supreme Court on 17 June 2010. 10. Meanwhile, on 16 June 2010 the Supreme Court, sitting as a review court, had given a judgment in which it had reversed the previous decisions and dismissed the applicant’s action. The court stated that the applicant had not filed any comments on the petition for review. 11. The applicant complained and addressed his complaint of 6 December 2010 to the President of the Supreme Court. The Head of the Civil Division informed him that his comments on the petition for review had been belated. II. RELEVANT DOMESTIC LAW
12. As in force in the relevant period, section 339(1) of Act no. IV of 1959 on the Civil Code provided as follows:
“Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. He shall be exculpated if he proves that he proceeded in such a manner as could generally be expected in the given situation.”
13. Moreover, section 349 of the same Act provided as follows:
“(1) Liability for damage caused by the State administration shall only be established if the damage could not be prevented by means of ordinary legal remedies, or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage.
... (3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.”
14. The Government submitted three court decisions illustrating the domestic practice on official liability actions under section 349. In case no. BDT2008.1817 (in which the official liability action was dismissed) it was emphasised that only an extremely grave mistake in the application or interpretation of law can be conducive to establishing the responsibility of the judicial body applying the law; and that the judicial body will be exculpated if the facts of the case are capable of prompting various different interpretations of the law. In case no. 1.Pf.20.799/2015/7/II. the plaintiff was awarded a substantial amount of compensation for non-pecuniary damage sustained on account of the respondent court’s repeated mishandling of the underlying child access dispute. In case no. 9.Pf.21.115/2014/6/I. the plaintiff was awarded a substantial amount of compensation for pecuniary damage sustained on account of the respondent Hungarian court’s failure properly to transmit a previous final and binding judgment to the Slovakian authorities, as a result of which that judgment, although entitling the plaintiff to a large sum of money, could not be executed. In a decision postdating the facts of the present application, the Constitutional Court elucidated the nature of official liability actions in the following terms (§ 14 of decision no. 3007/2015. (I. 12.) AB):
“In pursuit of a judicial liability action ... the decisions adopted in the principal litigation cannot be revised or reversed. However ... the eventual unlawfulness of the final and binding decision can be examined as a matter underlying any tort liability...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15. The applicant complained that the procedure before the Supreme Court had infringed his right to a fair hearing, because the judgment had been delivered without taking into account his submissions, which had been filed on time. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
16. The Government argued that the applicant should have brought an official liability action under section 349 of Act no. IV of 1959 on the Civil Code (see paragraph 13 above), which was an effective remedy in the circumstances. Submitting examples of similar and successful claims yielding compensation awards, they explained that there was established case-law in this field, in accordance with which the courts’ tort liability was considered well-founded whenever a procedural mistake had a bearing on the merits of a case, that is, when it was consequential. In the present application, the procedural mistake committed was clearly consequential, since the Supreme Court had found against the applicant without awaiting his pleadings although they had been submitted within the time-limit. This irregularity had amounted to a violation of the principle of equality of arms and had been aggravated by the fact that it had occurred before the highest judicial instance without any further remedies available. 17. The applicant contested this argument, asserting that at least two requisite elements of tort liability, namely a causal link and damage sustained, were difficult to prove in his case. 18. The Court reiterates that the obligation under Article 35 of the Convention requires only that an applicant should have normal recourse to remedies which are likely to be effective, adequate and accessible. In particular, the only remedies which the Convention requires to be exhausted are those which relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory, but also in practice, failing which they will lack the requisite accessibility and effectiveness. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies. Article 35 § 1 of the Convention also provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, §§ 45 and 46, ECHR 2006-II). 19. In the context of an official liability action being a potential remedy for a mistake made by the domestic courts, the Court has already held 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. In particular, a very similar situation was contemplated in the case of Leoni v. Italy ((dec.), no. 43269/98, 15 June 1999) where the Court rejected the Government’s objection based on the applicant’s failure to introduce a claim for compensation against the clerks of the Court of Appeal who had allegedly not forwarded to the Court of Cassation his appeal on points of law concerning a civil case. This case is noteworthy notably because in that application Mr Leoni possessed a certificate proving that he had deposited his appeal on points of law on time and it was admitted by the Court of Cassation that the Court of Appeal clerks had not forwarded – as they were obliged to do – the appeal. Despite these elements plausibly capable of producing a rather strong case for a compensation claim made by Mr Leoni, the Court considered that he was not required to have attempted an official liability action in order to exhaust domestic remedies. The Court is of the view that the same considerations apply in the present case where the domestic authorities denied any mishandling of the applicant’s case. 20. In particular, given that the applicant’s grievance in the present application lies in the fact that his action against his former employer for unlawful dismissal was finally adjudicated without his last-instance submissions being taken into account, the Court finds that, by way of an official liability action, he could not have obtained full redress for the damage resulting from the irregularity which allegedly occurred in the Supreme Court’s procedure. Such an action, even if successful, could not have led either to the calculation and awarding of the amounts sought by the applicant in his original claim before the Székesfehérvár Labour Court or to the case being examined afresh by the domestic courts in the light of his ignored submissions. The two examples of successful official liability actions (one concerning non-pecuniary damage and the other revolving around the frustration of the execution of an award already adjudicated in a final and binding judgment) submitted by the Government do not demonstrate how the applicant could have obtained the reopening of his case or the fully adversarial adjudication of his claims by the Supreme Court, let alone the awarding of those claims by a court hearing an eventual official liability action (see paragraph 14 above). Therefore, in the particular circumstances of the present case, the Court cannot follow the approach taken in Mihály Kőszegi v. Hungary ((dec.), no. 36830/97, 15 March 2001) where it held that an official liability action was a remedy to exhaust. 21. For the above reasons, the Court is satisfied that the applicant cannot be expected to have brought an official liability action and therefore the Government’s objection of non-exhaustion of domestic remedies should be dismissed. 22. Moreover, the Court notes that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
23. The applicant asserted that the fact that the Supreme Court had judged his case without waiting for his pleadings had fundamentally undermined the fairness, that is, the adversarial character, of the proceedings. 24. The Government offered no comments

Outcome for Article 6: violation