Article 30 - Protection in the event of unjustified dismissal
Key facts of the case:
1) The case originated in an application (no. 19554/11) against the Republic of 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, Ms K.M.C. (“the applicant”), on 22 March 2011.
3) The applicant submitted under Article 6 of the Convention that her dismissal could not be effectively challenged in court for want of reasons given by the employer.
6) The applicant was a civil servant working in the service of an administrative inspectorate. Applying Act no. LVIII of 2010 on the Legal Status of Government Officials (see below), her employer dismissed her from service on 27 September 2010 without giving any reasons for that dismissal.
7) The applicant did not challenge this measure in court, considering that in the absence of reasons for her dismissal, she could not sue her former employer with any prospect of success. The statutory time-limit in this respect expired on 26 October 2010.
8) On 18 February 2011 the Constitutional Court annulled as unconstitutional the impugned section 8(1) of Act no. LVIII of 2010, as of 31 May 2011 (see paragraph 16 below).
9) On 6 May 2011 the Constitutional Court gave a decision (see paragraph 17 below) concerning the non-applicability of laws, declared unconstitutional, in cases still pending before an ordinary court.
Outcome of the case:
For these reasons, the Court unanimously
1) Declares the application admissible;
2) Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4) Dismisses the remainder of the applicant’s claim for just satisfaction.
Paragraphs referring to the EU Charter in the Court judgment:
34) In the particular case, the Court observes that the applicant as a former government official dismissed from service was in principle entitled to challenge that dismissal in court. However, since the employer was under no obligation to give any reasons for that dismissal, the Court takes the view that it is inconceivable for the applicant to have brought a meaningful action, for want of any known position of the respondent employer. For the Court, this legal constellation amounts to depriving the impugned right of action of all substance. The Court also notes that the Constitutional Court, whose approach was partly based on the Court’s relevant case-law, annulled the underlying domestic provision for, among others, similar considerations (see paragraph 16 above), largely in line with the spirit of the European Union Charter of Fundamental Rights (see paragraph 18 above) and the revised European Social Charter (see paragraph 19 above).
Paragraphs referring to the EU Charter in the concurring Opinion of Judge Pinto de Albuquerque:
Pursuant to Article 24 of the Revised European Social Charter, all workers have the right not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; the Parties undertake to ensure the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief and the right to appeal to an impartial body when they consider that their employment has been terminated without a valid reason. This provision has been accepted by 24 Member States of the Council of Europe, but not by Hungary. Article 30 of the Charter of Fundamental Rights of the European Union reinforced this consensus, by drawing on the above-mentioned provision, as the respective “Explanations” show.
Given that Article 24 of the Revised European Social Charter and Article 30 of the European Union Charter of Fundamental Rights are invoked by the Chamber to shed light on its interpretation of Article 6 of the Convention, and both those Articles are inspired by Article 4 of ILO Convention No. 158 on termination of employment, the question of the legitimacy of this interpretation may be raised, bearing in mind that Hungary is not a party to ILO Convention No. 158, nor has it accepted Article 24 of the Revised European Social Charter.
In view of the aforementioned European standard based on the principle of justification of termination of employment, the answer must be in the affirmative. This answer is strengthened by the circumstance that Hungary is bound by Article 30 of the EU Charter of Fundamental Rights, which enshrines the said principle, and Article 6 of the International Covenant on Economic, Social and Cultural Rights, which includes such a principle by virtue to General Comment No. 18 on the Right to Work. It is not acceptable for one and the same State to advocate a double standard on termination of employment in respect of different international organisations, claiming to be held to a lower standard vis-à-vis the Council of Europe when it is already subject to a more demanding standard vis-à-vis the United Nations and the European Union.