STRASBOURG: THE OPTION OF SUBMITTING A CONSTITUTIONAL COMPLAINT HAS TO BE EXHAUSTED BEFORE THE PROCEDURE OF THE EUROPEAN COURT OF HUMAN RIGHTS14 May 2019
The European Court of Human Rights of Strasbourg gave an affirmative answer to the question whether a constitutional complaint that may be filed to the Constitutional Court qualifies as an effective legal remedy. Therefore, when the constitutional complaint is a suitable tool for remedying the injury of right in the given case, the preliminary procedure by the Constitutional Court is a precondition of making the petitioner eligible to turn to the European Court of Human Rights.
In the particular case, the ex-owner of a place of amusement of Budapest filed a petition to the European Court of Human Rights of Strasbourg (ECHR) claiming that the Hungarian authorities violated his right to fair trial. The ECHR held that the petition was not admissible for examination on the merits of it, as the petitioner had not filed a constitutional complaint in the case to the Constitutional Court before turning to the Strasbourg body.
The ECHR of Strasbourg may only proceed with the case after the applicant has exhausted in his or her own country all of the so called potential effective legal remedies. According to the decision now published, in the case concerned, the constitutional complaint types under Section 26 (1) and Section 27 of the Act on the Constitutional Court, i.e. also the constitutional complaint challenging a judicial decision for being contrary to the Fundamental Law, could have been regarded as an effective legal remedy from the ECHR’s point of view, therefore it should have been exhausted.
It means that when, in a given case, the constitutional complaint is a suitable tool for remedying the injury of a right, the preliminary procedure by the Constitutional Court shall be regarded as a precondition of a petitioner’s turning to the ECHR.
The summary by the European Court of Human Rights is available here.