European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF N.K.M. v. HUNGARY

 

(Application no. 73743/11)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

26 November 2013

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of N.K.M. v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

     Peer Lorenzen, President,
     András Sajó,
     Nebojša Vučinić, judges,
and Seçkin Erel, Acting Deputy Section Registrar,

Having deliberated in private on 5 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 73743/11) 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 N.K.M. (“the applicant”), on 25 November 2011. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).

2.  The applicant was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3.  On 6 February 2013 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 19.. and lives in Budapest.

5.  The applicant was a civil servant, working at the Ministry of Foreign Affairs.

6.  On 28 May 2011 she was dismissed from service. Relying on section 8(1) of Act no. LVIII of 2010, the employer refrained from providing reasons for this dismissal.

THE LAW

7.  The applicant complained that by not having been given reasons for her dismissal her right of access to a court was effectively frustrated in breach of Article 6 § 1 of the Convention.

8.  The Government have not contested that argument.

9.  The Court notes that this 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.

10.  Furthermore, the Court recalls that an identical complaint has already given rise to the finding of a violation of Article 6 § 1 (see K.M.C. v. Hungary, no. 19554/11, §§ 31 to 35, 10 July 2012) and finds that the same considerations apply in the present case.

It follows that there has been a violation of Article 6 § 1 of the Convention.

11.  Relying on Article 41 of the Convention, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and 156 million Hungarian forints in respect of pecuniary damage, plus accrued interests.

12.  The Government contested these claims.

13.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage and awards her EUR 6,300 in respect of non-pecuniary damage.

14.  The applicant also claimed EUR 18,288 for the costs and expenses incurred before the Court. This sum corresponds to 72 hours of legal work billable by her lawyer at an hourly rate of EUR 200 plus VAT.

15.  The Government contested this claim.

16.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

17.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

18.  The applicant also complained that the loss of future income which resulted from her dismissal amounted to a violation of Article 1 of Protocol No. 1.

19.  The Court notes that there is no right under the Convention to continue to be paid a salary of a particular amount (see, mutatis mutandis, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX). It is not sufficient for an applicant to rely on the existence of a “genuine dispute” or an “arguable claim” (ibidem, §§ 37-38). A claim may only be regarded as an “asset” for the purposes of Article 1 of Protocol No. 1 where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia [GC], 28 September 2004, §§ 45-52, ECHR 2004-IX).

20.  In the present case the Court considers that the applicant’s mere hope that, without the impugned dismissal, she would have remained employed and her salary paid for an indefinite period of time cannot establish the existence of an “asset” for the purposes of Article 1 of Protocol No. 1 (see, mutatis mutandis, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 94, ECHR 2007-II).

21.  In the absence of an interference with the applicant’s property rights, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint concerning Article 6 § 1 admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 6,300 (six thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one 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.

Done in English, and notified in writing on 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Seçkin Erel                                                                       Peer Lorenzen
Acting Deputy Registrar                                                            President