30 September 2019
Róbert Spano, who has Icelandic and Italian ascendants, has already participated in several decisions related to Hungary. The first Hungarian case in which Mr. Spano contributed as the judge of the Strasbourg-court was the decision-making on the admissibility of the Beverly v. Hungary case. In this case a lady from Australia turned to the ECHR in her case of a claim for damages against the real estate registry in Hungary, but as her application for remedy had been received after the time limit, the ECHR rejected the examination of the merits of the case.
The latest Hungarian judgement in the adjudication of which he participated as an ad hoc – appointed – judge (to replace Péter Paczolay who was affected due to his Hungarian nationality) was the Repcevirág v. Hungary case on 30 April 2019. The applicant of the case, Repcevirág Cooperative with a registered office in Aranyosgadány had purchased valuable agricultural machinery subsequently transferred for free to its own cooperative members (typically companies) for operation. In accordance with the regulations in force, the cooperative held that it might benefit from the right to deduct the VAT charged in advance, to decrease its tax payment obligation. First an administrative decision was delivered in the case in which the National Tax and Customs Administration found that the tax evasion had been unlawful, and it imposed a tax fine and obliged the applicant to pay default interest. Baranya County Court rejected the cooperative’s appeal for remedy against the fine. After several stages, the case had been taken to the Curia, which also delivered a decision on rejection. The cooperative then submitted a petition to the Constitutional Court to review the decision of he Curia and at the same to turn to the Court of Justice of the European Union by initiating preliminary rulings. The Constitutional Court stated in its decision that initiating preliminary rulings is in the competence of the ordinary court proceeding with the case. Repcevirág Cooperative then submitted another application for remedy to the European Court of Human Rights. In the decision delivered in the particular case, the ECHR did not challenge the position taken by the Hungarian Constitutional Court, as Section 27 of the Act on the Constitutional Court does not allow the petitioner to request the Constitutional Court to initiate such a preliminary ruling procedure.
At a meeting held in the Constitutional Court with the participation of Robert Spano, Tamás Sulyok and Péter Paczolay, the Strasbourg court decision delivered in the Szalontay v. Hungary case was one of the topics discussed, as an important milestone of the past year in the life of the Constitutional Court of Hungary and at the same time a significant cornerstone of the cooperation between the CC and the ECHR. In the particular case, the ex-owner of a place of amusement of Budapest filed a petition to the Strasbourg court claiming that the Hungarian authorities had 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. Therefore, in March this year, the Strasbourg court stated: the ECHR 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. In the Szalontay v. Hungary case, 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 contrary to the Fundamental Law, could have been regarded as an effective legal remedy from the ECHR’s point of view, therefore, the applicant should have exhausted it as well. 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 turning to the European Court of Human Rights.