Application no. 53461/15
Amanda KÓSA
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 21 November 2017 as a Chamber composed of:
Vincent A. De Gaetano, President,
András Sajó,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Motoc,
Marko Bošnjak, judges
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 22 October 2015,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by third party interveners,
Having deliberated on 28 February, 21 March and 21 November 2017, decides as follows:
1The applicant, Ms Amanda Kósa, is a Hungarian national who was born in 2004 and lives in Nyíregyháza. She was represented before the Court by Ms A. Kegye, a lawyer practising in Budapest.
2The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3The facts of the case, as submitted by the parties, may be summarised as follows.
4The applicant was born in 2004 and lives in a neighbourhood of Nyíregyháza, the so-called Huszár township, which is characterised by the unfavourable social circumstances and poverty of its inhabitants, the overwhelming majority of whom belong to the Roma minority. This township, situated approximately 2 km from the town centre, is rather isolated, the access roads and pedestrian walkways being intersected by the Nyíregyháza Railway Station complex and the railway tracks running to and from the station.
5Nyíregyháza is the administrative centre of Szabolcs-Szatmár-Bereg County, with a population of 118,000.
6The applicant stated that her father and stepfather both belonged to the Roma minority, whereas her mother did not. The applicant considers herself to be of Roma origin, as indicated on the application form submitted to the Court.
7In accordance with the relevant Hungarian legislation, each residential district has a designated State-funded primary school which is obliged to admit the children who reside in its catchment area (a school of compulsory admission). That admission obligation does not prejudice parents’ right to a free choice of school; they are free to request that their children be admitted to another public or private school of their choice.
8Between 1958 and 2007 the primary education of those living in the applicant’s township was provided by a school located in that neighbourhood. In 2007, relying on expert reports on the segregation of children with severe social handicaps, the Municipality of Nyíregyháza (hereafter “the Municipality”) – against which related public interest litigation was being conducted, but was eventually discontinued – decided to close the school, distribute the pupils among six other primary schools, and provide a free and supervised school bus service between the Roma neighbourhood and those schools.
9However, the desegregation process was classified by the domestic courts as “rigid”: it lacked sufficient preparation, and the special educational needs of the children who were transferred were not adequately addressed. As a result, they often complained of exclusion and an unfriendly atmosphere in their new schools.
10In April 2011 the applicant was admitted to the Arany János Primary School, which was the designated school for her neighbourhood. This school was located in another part of town approximately 5 km away.
11Upon medical advice, the applicant, who suffered from asthma, did not begin school in September 2011, but spent another year in kindergarten.
12In May 2011 the Greek Catholic Diocese, which had jurisdiction in the local area and which had maintained a school in central Nyíregyháza since 1998, expressed its willingness to open another primary school in the Huszár township, with a view to providing pastoral care to Roma pupils and their families. The Roma minority self-governing body of Nyíregyháza welcomed the initiative.
13In September 2011 a primary school maintained by the Greek Catholic Church was opened in the township, the Sója Miklós[1] Greek Catholic Kindergarten and Primary School (“the Sója Miklós School”). This school was not assigned to any residential district, and its establishment did not affect the existing scheme of catchment areas and schools of compulsory admission in Nyíregyháza. The school undertook not to refuse children with severe social handicaps who requested admission. It is located approximately 300 metres from the applicant’s home.
The school provides primary education in accordance with the official syllabus. Its funding is partly derived from the State budget, disbursed according to the number of pupils catered for.
14In November 2011 the Municipality discontinued the school bus service between the Huszár township and the schools in the town centre. At that time, seventy to eighty children used the service. Instead, the Municipality decided to provide subsidies by paying 30% of the price of public transport passes for pupils living in the township. The submissions of the applicant’s stepfather indicate that the subsidies also applied to people who accompanied children to school.
15In January 2012 the applicant’s mother and stepfather requested that the applicant be admitted to the Sója Miklós School. On the registration form they wrote that they had chosen the school because of its proximity, so as not to expose the applicant, who was asthmatic, to a lot of travelling. The registration form which they signed also contained a pre-printed statement by which parents who signed it requested their child’s Catholic education.
16The applicant spent slightly more than two school years in the Sója Miklós School, that is from September 2012 to December 2014. In October 2014 her mother and stepfather decided to transfer her to a school in the town centre, the Bem József Primary School. The Chance for Children Foundation (Esélyt a Hátrányos Helyzetű Gyerekeknek Alapítvány, hereafter “the CFCF”) assisted them in that process. In December 2014 the applicant was admitted to the school assigned to her neighbourhood, and she has been attending that school ever since.
17The applicant uses public transport for her daily commute to the new school, and she is accompanied by her stepfather. The distance between their home and the Bem József School appears to be approximately 3 km, and the journey requires a commute of some forty minutes.
18In 2014 the monthly income per capita in the applicant’s family was 21,400 Hungarian forints (HUF – approximately 70 euros (EUR)). The subsidised price of the public transport pass was HUF 1,750 (EUR 6) per month for the applicant and HUF 7,500 (EUR 25) for her stepfather.
19On 3 January 2012 the CFCF lodged a public interest action (see paragraph 29 below) with the Nyíregyháza High Court, under Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the Equal Treatment Act”). In essence, it invited the court to find that the opening of the Sója Miklós School and the discontinuance of the school bus service had resulted in unlawful segregation on the basis of ethnic origin, and to prohibit the school from operating.
20Initially, the CFCF lodged the action against the Municipality. Subsequently, it extended the claim to include the Greek Catholic Church and its two schools in Nyíregyháza.
After the establishment of the Klebelsberg Institution Management Centre (Klebelsberg Intézményfenntartó Központ, hereafter “the KLIK”), a State authority responsible for managing public education and maintaining public schools as of 1 January 2013, the CFCF extended the claim to include that authority. The CFCF requested that the KLIK, as a successor to the municipalities in the field of public education, be ordered to reinstate the original desegregation programme in place prior to May 2011 and resume the school bus service.
21On 28 February 2014 the Nyíregyháza High Court found in favour of the CFCF as regards the main issue of the public interest litigation: in essence, it held that the first four respondents (the Municipality, the Greek Catholic Church and its two schools) had created unlawful segregation by maintaining the Sója Miklós School in the township and discontinuing the school bus service.
22As regards the claim against the KLIK, the Nyíregyháza High Court explained that section 76(7) of Act no. CXC of 2011 on National Public Education (“the Public Education Act”) was to be interpreted as obliging the KLIK to ensure students’ transport to the school to which had been officially designated for them according to their address, even if the school was located within the municipality in which they resided. However, the Nyíregyháza High Court rejected the CFCF’s claim against the KLIK, considering that the manner in which the CFCF intended to have the desegregation programme restored was too general, and that such a compulsory reinstatement could infringe parents’ right to a free choice of school.
The CFCF did not appeal against the dismissal of the claim concerning the KLIK; nor did the KLIK appeal against the judgment. Accordingly, that part of the judgment became final at first instance.
23On 6 November 2014 the Debrecen Court of Appeal upheld the judgment.
24On 22 April 2015 the Kúria (the Supreme Court) reversed the final judgment in review proceedings and dismissed the CFCF’s action in full (see paragraph 31 below).
25On 26 May 2016 the European Commission issued a letter of formal notice, requesting that Hungary ensure that Roma children enjoy access to quality education on the same terms as all other children, and urging the Government to bring national laws on equal treatment, education and the practical implementation of their educational policies into line with the Racial Equality Directive (Council Directive 2000/43/EC).
26On 4 October 2016 the Government submitted a bill to Parliament, with a view to amending section 28 of the Equal Treatment Act (see paragraph 29 below) and inserting a new provision into the Public Education Act.
The amendment, adopted on 13 June 2017 and effective as of 1 July 2017, prohibited, in principle, education organised on the grounds of religious or other convictions from resulting in unlawful segregation based on race, colour or ethnicity. However, it is still possible to provide minority ethnic education if the following two conditions are satisfied: the national curriculum being taught at at least the level generally provided in non-ethnic schools, and the minority ethnic education meeting the criteria laid down in the Act on the Rights of Nationalities.
27The infringement procedure opened by the European Commission is still ongoing.
28The relevant parts of the Public Education Act, as in force at the material time, provided:
Section 72
“(2) Parents may freely choose ... a school ..., taking into account their child’s abilities, skills and interests, as well as their own religious and ideological convictions and nationality.”
Section 76
“(7) The municipality [in which the child resides] reimburses the costs of travelling to the kindergarten of compulsory admission, and provides the child with an accompanying person if necessary, provided that the kindergarten is located outside the municipality in question and transport to the kindergarten is not ensured by the municipality. Transport to a school of compulsory admission is ensured by [whoever maintains] the school.”
29The relevant parts of the Equal Treatment Act provide:
Section 1
“On the basis of the requirement of equal treatment, in the territory of Hungary, persons or groups of persons, legal persons, and organisations without legal personality must be treated with equal respect and circumspection, as required by the present Act, with equal due respect for their individual circumstances.”
Section 20
Public interest litigation
“(1) A personality right or labour law action may be initiated before a court on account of a violation of the equal treatment requirements by ...
c) civil society organisations and organisations set up to represent [certain specific] interests; if the violation of the requirements of equal treatment, or the imminent risk of such a violation, was based on a characteristic which is an essential feature of the individuals, and the violation or its imminent risk affects a larger group of persons which cannot be determined accurately.”
Section 28
“(2) The requirement of equal treatment is not violated if
a) in a public educational institution, upon the initiative of parents and in accordance with their voluntary choice [or]
b) in a higher educational institution, upon the voluntary participation of students an education based on a religious conviction or ethnic education is organised [in such a manner that its] purpose or curriculum necessitates the formation of segregated classes or groups; provided that the [students] do not suffer any prejudice as a consequence, and that the education complies with the requirements approved, prescribed or supported by the State.”
30Section 29 of the Constitutional Court Act (Act no. CLI of 2011) provides:
“The Constitutional Court shall admit constitutional complaints if a conflict with the Fundamental Law significantly affects a judicial decision, or the case raises constitutional law issues of fundamental importance.”
31The judgment of the Kúria, issued on 22 April 2015, was published as a guiding resolution (elvi bírósági határozat, see Baka v. Hungary [GC], no. 20261/12, § 50, ECHR 2016) under no. EH 2015.07.P6, with the following summary:
“Unlawful separation (segregation) cannot be established on account of the maintenance or operation of a [faith school] in which the overwhelming majority of students are of [Roma] origin, provided that the choice of the school is based on parents’ voluntary and informed decisions, and that the students are not prejudiced as regards the quality of the education given to them.”
32The established case-law of the Kúria concerning the scope of a final judgment’s res judicata was summarised in leading case no. BH2002.235 as follows:
“The subject of the res judicata comprises both the decision about the right sought to be enforced and the relevant facts and legal arguments underlying that decision; it thus covers the classification of the legal relationship between the parties, which cannot be called into question subsequently – not even a court hearing a subsequent action may depart from it.”
33With respect to the effects of a judgment adopted in public interest litigation, the Kúria also held the following in its judgment no. Pfv.IV.20.510/2010/3:
“The finding of a violation of a personality right (személyhez fűződő jog), without an actual and evidenced disadvantage, does not in itself constitute grounds for an award of damages. ... [However, the notion of] ‘disadvantageous treatment’ [or, in other words, the violation of the right to equal treatment, which constitutes a violation of a personality right] includes the notion of ‘disadvantage’ as an inherent element ... Therefore, after [such an] infringement has been found, it is not necessary to consider further evidence of [the disadvantage]. If ... the final judgment adopted in the preliminary [public interest litigation] ... has established an infringement consisting of ... disadvantageous treatment, ... [this] allows for a ‘disadvantage’ to be found without any further consideration of evidence, and a resulting award of non-pecuniary damages.”
34In its decision no. 3148/2016. (VII. 22.) AB of 5 July 2016, the Constitutional Court rejected a constitutional complaint directed against a final judgment concerning the allegedly segregated education in a primary school.
As regards the facts of that case, the petitioner’s child had been enrolled at the school of compulsory admission assigned to their area of residence. Considering that school to be a segregated one, the petitioner had requested the transfer of the child to another primary school. The request had been dismissed and, in the ensuing judicial proceedings, the administrative decision had been found to be lawful.
The Constitutional Court found that the constitutional complaint essentially challenged the domestic courts’ assessment of evidence, and did not contain any meaningful argument raising constitutionality issues of fundamental importance. It declared the complaint inadmissible with reference to section 29 of the Constitutional Court Act (see paragraph 30 above).
35In accordance with the case-law of the Constitutional Court, associations, trade unions and other civil society organisations may only bring a constitutional complaint concerning their own rights and freedoms, but cannot act on behalf of the people whose interests they represent. Such complaints are rejected by the Constitutional Court for want of victim status (see, for example, decisions 3091/2012. (VII. 26.) AB, point 3; 3092/2012. (VII. 26.) AB, point 3; 3238/2012. (IX. 28.) AB, point 3; 3027/2013. (II. 12.) AB, point 19; 3030/2013. (II. 12.) AB, point 10; and 3033/2014. (III. 3.) AB, point 20).
36The applicant complained that she had been discriminated against in the enjoyment of her right to education on account of her ethnic origin, since, following the discontinuance of the school bus service, she had spent more than two school years in a segregated school, in breach of Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1.
37As a separate grievance, she further complained of the discontinuance of the school bus service connecting her neighbourhood with the city centre. Allegedly, the discontinuance of that service, combined with the opening of the segregating faith school in her neighbourhood, as approved by the Municipality, had prevented her from having access to integrated education. In this respect, she relied on Article 2 of Protocol No. 1 alone.
38The Court views this case as raising primarily a discrimination issue, namely the alleged segregation of Roma pupils and whether this was condoned by the authorities. Therefore, it considers that the issues pertinent to this case are to be analysed from the standpoint of Article 14 of the Convention, read in conjunction with Article 2 of Protocol No. 1 (see, mutatis mutandis, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 143‑145, ECHR 2010).
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 2 of Protocol No. 1 reads as follows:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
1The Government
39The Government raised an objection of non-exhaustion of domestic remedies. They argued that the public interest action brought by the CFCF (see paragraphs 19 to 24 above) had not exempted the applicant from the obligation to bring an action concerning her own specific circumstances, because the subject matter of the public interest litigation was different from that of an individual claim. In their view, the res judicata in the Kúria’s judgment did not cover the applicant, as she had not been party to the proceedings. Nor had the judgment prevented her from bringing a separate action in which her individual circumstances could have been examined, which could have led to a different outcome if the conditions laid down by the Kúria regarding the free and informed choice of parents and the adequate quality of education had not been met.
40With a view to emphasising the insufficiency of the public interest litigation as an individual remedy, the Government pointed out that, even if the Kúria had established the existence of unlawful segregation in relation to the CFCF’s claim, the applicant should have brought a separate, individual action in order to draw conclusions from that general finding and obtain damages for the violation of her rights. The Government stressed that the only effect of a judgment finding a violation of equal treatment rights in public interest litigation was that the victim of the discrimination was not required to provide further evidence as regards the disadvantage – that is, the established segregation – he or she had been subjected to (see paragraph 33 above), because the court hearing the follow-up case could rely on the former judgment’s findings if the underlying facts were similar. Apart from that aspect, public interest litigation did not make individual actions redundant.
41The Government further argued that the applicant’s failure to pursue an individual action in damages also meant that she had been prevented from submitting a constitutional complaint (available against a final judgment), a remedy which could have been effective in the circumstances.
42As regards the discontinuance of the school bus service, the Government were of the view that neither the applicant nor the CFCF had exhausted the available domestic remedies. The claim against the KLIK had only been dealt with in the context of first-instance proceedings in the framework of public interest litigation, and no adequate claim had been put forward as a basis to enforce the State’s obligation as acknowledged in an obiter dictum (see paragraph 22 above).
2The applicant
43The applicant argued that her parents’ choice to enrol her at the Sója Miklós School had not been made freely, but had resulted from the pressure of the circumstances – notably her state of health, the discontinuance of the school bus service, and the well-known hostility in other schools towards pupils from the Huszár township. She further claimed that the education provided by the Sója Miklós School had been of substandard quality. She maintained that the CFCF had provided the Kúria with sufficient evidence as to parents’ lack of commitment towards, and interest in, religious education.
However, in the applicant’s view, the Kúria had failed to adequately balance the evidence presented in the public interest case, and on the strength of the judgment it had issued she had been precluded from obtaining a different conclusion in any kind of subsequent litigation.
44The applicant was of the view that, in accordance with the case-law of the domestic courts, judgments delivered in public interest claims had a quasi-res judicata effect, as they also applied to individuals who had not been party to the case. She was of the view that, if a finding of segregation in a public interest case was binding in a follow-up action for damages, then the contrary was obviously also true: whenever a public interest claim was dismissed by a final judgment, an individual claim based on the same facts could not be successful.
Therefore, her bringing an individual action following the Kúria’s unfavourable judgment, which had thoroughly – if mistakenly – assessed the situation of pupils living in the Huszár township, would have been futile and unreasonable in the circumstances.
45Relying on the Court’s assessment in the judgment of Karácsony and Others v. Hungary ([GC], no. 42461/13, §§ 75‑83, ECHR 2016 (extracts)), the applicant further contended that, in any event, a constitutional complaint could not be considered an effective remedy. She added that the Constitutional Court had already declined to examine the merits of a final judgment concerning segregated primary education (see paragraph 34 above).
46With respect to the complaint concerning the school bus service, the applicant stressed that the CFCF had challenged the discontinuance of the school bus service in the public interest action (see paragraph 19 above). That claim had been examined on the merits, and had had a favourable outcome both at first instance and on appeal, only being dismissed eventually by the Kúria. Since an effective remedy had duly been exhausted, she argued that, in such circumstances, it was immaterial that another claim by the CFCF against the KLIK had been rejected by a decision which had become final at first instance (see paragraph 22 above).
3The third-party interveners
(a) Open Society Justice Initiative
47The Open Society Justice Initiative argued that, in order not to render the Convention rights theoretical and illusory, the Court should develop its jurisprudence and accept that a victim of discrimination whose situation had been examined and whose interests had been represented in a domestic collective redress procedure had exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention.
48The Open Society Justice Initiative relied on cases in which the Court had accepted the victim status of individuals who had not been party to domestic proceedings in their own name, but through a legal entity acting as an intermediary which had been established for the purpose of defending its members’ interests. It invited the Court to extend this approach to situations where a victim of group discrimination relying on a collective mechanism was not a member of an organisation pursuing a claim before the domestic authorities.
(b) European Roma Rights Centre
49The European Roma Rights Centre (“the ERRC”) emphasised that Roma people in particular were less likely than other members of society to have the resources – including education, money and faith in the justice system – necessary to pursue claims in court. Relying on, inter alia, a report of the European Union Agency for Fundamental Rights, they pointed to the lack of awareness of the anti-discrimination legal framework among minorities, and to the lack of cases whereby such victims would pursue claims themselves.
50In the light of the specific difficulties which victims of discrimination face in bringing their cases before domestic courts, the ERRC submitted that it was crucial and in line with the purpose of the Convention to allow such victims to pursue their case before the Court after the matter had been examined in the framework of public interest litigation at domestic level.
51The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis, and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they have been applied to an applicant or have affected the applicant gives rise to a violation of the Convention (see, among many other authorities, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015). Therefore, the Court cannot examine the situation of the Roma students at the Huszár township, the allegedly segregated education provided by the Sója Miklós School, or the compatibility of the Kúria’s judgment with the requirements of the Convention in purely general terms or in the abstract. In relation to the individual application lodged by the applicant under Article 34 of the Convention, the Court’s competence is limited to the examination of her individual situation giving rise to the complaints outlined in paragraphs 36 and 37 above.
52The Court notes that the parties’ positions differ as to whether the litigation pursued by the CFCF exempted the applicant from bringing an individual court action so as to exhaust domestic remedies.
53The Court reiterates that the rationale behind the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Convention institutions. It is based on the assumption, reflected in Article 13, that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary nature of the Convention machinery (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V). Indeed, the Court has frequently held that, in accordance with the principle of subsidiarity, it is appropriate that the national courts should initially have the opportunity to determine questions of compatibility of the domestic law with the Convention, and that, if an application is nonetheless subsequently brought to Strasbourg, the Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the driving forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).
54At the same time, there is a need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13). The rule of exhaustion is neither absolute nor capable of being applied automatically; in monitoring compliance with this rule, it is essential to have regard to the circumstances of the individual case (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009).
55In the present case, the Court observes that the domestic legislation explicitly allowed certain civil society organisations, such as the CFCF, to bring legal proceedings in defence of a larger group of people affected by a violation, or risk of a violation, of the requirements of equal treatment (see section 20 of the Equal Treatment Act quoted in paragraph 29 above).
56Since the national law specifically envisaged that legal avenue as a means of defending interests at stake (see, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 38-39, ECHR 2004‑III), the Court considers that, in principle, it would be conceivable to accept the public interest litigation as a form of exhausting domestic remedies, for the purposes of Article 35 § 1 of the Convention.
57Such a proposition would be especially justified in relation to alleged discrimination against a vulnerable group requiring special protection, such as Roma children (see, mutatis mutandis, Oršuš and Others, cited above, §§ 147-148). Access to justice for members of such groups should be facilitated so as to provide effective protection of rights: the Convention is intended to guarantee rights which are “practical and effective” rather than theoretical and illusory (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 105, ECHR 2014). For the Court, the Hungarian legislation, notably section 20 of the Equal Treatment Act (see paragraph 29 above), is a laudable example of that facilitative and protective approach.
58That being so, the Court observes that an important element of the applicant’s submissions was that her mother and stepfather had not requested her enrolment at the Sója Miklós School as a deliberate expression of their freedom of conscience and religion; they submitted that they had been compelled to do so by the circumstances, including in particular the discontinuance of the school bus service and the applicant’s medical condition. The applicant also complained regarding the allegedly substandard quality of the education she had received in the Sója Miklós School (see paragraph 43 above).
59Therefore, although the Kúria’s judgment rendered in the public interest case concerned a subject matter which is closely related to the grievances brought before the Court in the present case, it did not correspond exactly to the applicant’s individual situation. Indeed, an essential element of the Kúria’s finding – that no segregation could be established on account of the operation of the Sója Miklós School – was the premise that the choice of the school had been based on parents’ voluntary and informed decisions, and that the students had not been prejudiced with regard to the quality of education given to them (see paragraph 31 above). The applicant firmly contested the fulfilment of these preconditions in relation to her particular situation.
60The Court cannot speculate as to the possible effects of the Kúria’s judgment on the applicant’s legal situation (see paragraphs 32 and 33 above), or the outcome of a potential action by the applicant with a view to having her individual situation assessed and distinguished from the findings of that guiding resolution (see paragraph 31 above). However, it cannot ignore that the present application is based on facts which are different from what has been established by the domestic authorities.
61The Court also notes that the Constitutional Court did not examine the issue raised by the present case in the framework of public interest litigation (see paragraph 41 above). The CFCF could not bring the case before the Constitutional Court because civil society organisations are not entitled to submit constitutional complaints on behalf of people whose interests they represent (see paragraph 35 above). Nor could the applicant pursue a constitutional complaint against the judgment of the Kúria, given that she had not been a party to the principal proceedings.
62The Court is of the view that the Constitutional Court’s decision of 5 July 2016 may not be construed as demonstrating a blanket reluctance to admit and hear school segregation cases in general on the basis that they lack constitutional issues of fundamental importance. Rather, the reason behind the rejection of that particular complaint appeared to be, at least partly, the non-development of the underlying arguments submitted by the complainant. The Court reiterates that, while it is not obliged to reject a complaint for failure to exhaust domestic remedies on account of the fact that appeals were still pending at the time when it was introduced (see Karaduman v. Turkey, no. 16278/90, Commission decision of 3 May 1993, Decisions and Reports (DR) 74, p. 106), the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which an application is lodged – although, as it has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 87, ECHR 2010). Since the Constitutional Court’s decision was adopted more than eight months after the date when the present application was lodged, the Court does not find the decision decisive for the purposes of assessing whether a constitutional complaint would have been potentially effective or futile in the applicant’s situation.
63In the light of the foregoing, the Court concludes that the CFCF’s public interest litigation did not provide the national courts with the opportunity which is, in principle, intended to be afforded to a Contracting State by virtue of Article 35 of the Convention, namely the opportunity to address and thereby prevent or put right the particular Convention violation alleged against it. Nor did the public interest litigation provide the Court with the views of the national courts concerning the applicant’s grievances. Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld.
64It follows that the application must be rejected as inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 14 December 2017.
Marialena Tsirli Vincent A. De Gaetano
Registrar President
[1]. Miklós Sója (1912-1996) was a Hungarian priest of the Greek Catholic Church, who is known for his 40-year-long activity in educating and extending pastoral care to the disadvantaged Roma community of Hodász, Hungary.
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