The employer filed a review procedure in front of the Curia (Supreme Court of Hungary), seeking the rejection of the employee’s claim. The Curia sent the employer’s request for review to the employee, so that the latter can make observations within 8 days.

The employee received the letter of the Curia on the 7^th June 2010, and through his lawyer, made his observation within the 8 days’ deadline, on 14^th June 2010. The same day the employee’s lawyer posted the letter to the Curia, who received the observations on 17^th June 2010.

The only problem is that a day before, on the 16^th June 2010, the Curia delivered its judgment and by overturning the second instance court judgment, dismissed the claim of the employee.

The Judgment of the European Court of Human Rights

The employee, who lost his case in front of the Curia started proceedings against Hungary, for infringement his right to fair trial, because the Curia closed the case without hearing him and waiting for his observations to the counterparty’s request for review.

As a formal defense, the Hungarian government invoked the lack of exhaustion of domestic remedies, because, in its view, the employee should have started a domestic litigation for damage caused by the judiciary in front of the Hungarian Courts.

The European Court of Human Rights emphasized that only those remedies must be exhausted, which are efficient, however a domestic litigation for damage caused by the judiciary is not as such, because in a new proceedings against the court causing the damage, the original labour litigation could not be reopened, and the observations of the employee, disregarded by the Curia, could not be heard again to have a fully adversarial adjudication.

Based on the above the European Court of Human Rights heard the case to the merits, and established that the employee’s right to fair trial was infringed, when the Curia delivered its judgment on the day following the expiry of the 8 days’ deadline, without waiting for the observations of employee, posted in due time.

Lesson learnt

By this decision the European Court of Human Rights shifted away from its earlier judgments, where it was of the opinion, that in case of illegal judicial or administrative decisions, at first the applicants have to start domestic litigation for damages, and they can turn to Strasbourg only after losing these domestic proceedings.

The forthcoming case law will decide if this is a new trend or  only an isolated decision made because of the individual circumstances of the case.