APEH ÜLDÖZÖTTEINEK SZÖVETSEGE, IVANYI, ROTH AND SZERDAHELYI v. HUNGARY

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

application no. 32367/96

by APEH Üldözötteinek Szövetsége,
Péter IVÁNYI, Miklós RÓTH and
Szabolcs SZERDAHELYI

against Hungary

The European Court of Human Rights (Second Section) sitting on 31 August 1999 as a Chamber composed of

MrC. Rozakis, President,

MrB. Conforti,

MrG. Bonello

MrsV. Stráznická,

MrsM. Tsatsa-Nikolovska,

MrA.B. Baka,

MrE. Levits, Judges,

withMrE. Fribergh, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 April 1996 by APEH Üldözötteinek Szövetsége, Péter Iványi, Miklós Róth and Szabolcs Szerdahelyi against Hungary and registered on 22 July 1996 under file no. 32367/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 17 March 1997 and the observations in reply submitted by the applicants on 11 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

              The first applicant is an unregistered association with its seat in Budapest. Before the Court it is represented by the third applicant.

              The second applicant is a Hungarian citizen born in 1950, residing in Nyíregyháza, Hungary. He is a manager by profession and the vice-president of the applicant association.

              The third applicant is a Hungarian citizen born in 1943, residing in Budapest. He is a lawyer by profession, practising in Budapest, and the vice-president of the applicant association.

              The fourth applicant is a Hungarian citizen born in 1943, residing in Budapest. He is a free-lancer by profession and the president of the applicant association.

The facts of the case, as submitted by the parties, may be summarised as follows.

A.Particular circumstances of the case

              In May 1993 several private persons, inter alia, the second, the third and the fourth applicants founded the applicant association under the name of “APEH Üldözötteinek Szövetsége” (Alliance of APEH's Persecutees). APEH is the commonly used abbreviated name of the Hungarian Tax Authority (Adó- és Pénzügyi Ellenőrzési Hivatal). The applicant association’s foundation charter, dated 28 May 1993, states that the purpose of the association is, inter alia, to promote the Hungarian taxpayers’ general interests.

              On 3 June 1993 the President of APEH, having learnt about the foundation of the applicant association from the press, complained to the President of the Budapest Regional Court and the Head of the Budapest Public Prosecutor’s Office that the applicant association’s choice of name was defamatory for APEH. He also requested that the proceedings concerning the applicant association’s envisaged registration be under thorough control and his office have access to the documents relating to those proceedings.

              On 15 June 1993 the fourth applicant requested the Budapest Regional Court to register the applicant association.

              On 28 June 1993 the Budapest Regional Court returned the request for registration ordering that APEH’s approval for the use of its name be obtained, that the expression ‘persecutees’ in the association’s name be altered to a neutral term and that the foundation charter be completed by provisions regulating the method of voting by the association’s bodies.

              On 2 July 1993 the Budapest Public Prosecutor's Office intervened in the registration proceedings.

              In their submissions in response to the order of 28 June 1993, filed on 17 September 1993 with the Regional Court, the applicant association refused to obtain APEH’s approval for the use of its name and to alter the impugned expression, as required by the Regional Court. Moreover, they stated that the information on the method of voting by the association’s bodies was available from their original submissions requesting the registration.

              On 21 September 1993 the applicant association challenged the Budapest Regional Court and the judge in charge for bias on the ground that, inter alia, they had not been informed about the involvement of the Budapest Public Prosecutor’s Office in the registration proceedings.

              On 13 December 1993 the Supreme Court dismissed the applicant association’s motion to challenge the Regional Court for bias. The Supreme Court found that the Regional Court’s procedure had been in compliance with the relevant legal provisions and there was nothing to support the applicants’ allegations as to any bias on the part of the Regional Court.

              On 24 January 1994 the Budapest Public Prosecutor’s Office proposed to the Budapest Regional Court that it reject the applicant association’s request for registration as the association had not met the requirements raised by the Regional Court in its order of 28 June 1993.

              In their submissions in response, filed with the Regional Court on 8 February 1994, the applicant association confirmed that they had meanwhile adopted an amendment of the foundation charter, reflecting the Regional Court’s requirements as to the voting methods. Moreover, they argued that the requirement as to APEH’s approval for the use of its name was legally absurd.

              On 10 February 1994 the Budapest Regional Court rejected the applicant association’s request for registration. The Regional Court observed that the applicants had not obtained APEH’s approval for the use of its name. In this respect, the Regional Court relied on Section 7 (1) of Act no. 2 of 1989 on Freedom of Association (“the 1989 Associations Act”), according to which the name of an association should not give the impression that the association in question carried out its activities in a manner linked to those of another legal person, unless approved by the latter. Moreover, the Regional Court held that the expression ‘persecutees’ was defamatory for APEH as a State organ and was contrary to the standards of naming an association, as laid down by the Supreme Court in its Administrative Collegium’s Legal Opinion no. 1. Finally, the Regional Court found that the association had only partly met the requirements as to the method of voting by the association bodies.

              On 7 July 1994 the Attorney General’s Office, upon the applicant association’s appeal, intervened in the appeal proceedings and proposed that the Supreme Court uphold the refusal of the request for registration.

              On 2 October 1995 the Supreme Court dismissed the applicant association’s appeal. The Supreme Court, in addition to the reasons given by the Budapest Regional Court, held that the name of the association did not correspond to the objectives of the association, namely, to reform the Hungarian taxation system and the association could, therefore, not be registered under the name in question.

              On 14 May 1996 the Supreme Court, in review proceedings, upheld the second instance decision. This decision was served upon the applicants on 20 June 1996. The Supreme Court held that the association’s intended name was contrary to S. 77 (1) of the Hungarian Civil Code, guaranteeing the right to bear a name. The Supreme Court found this provision to imply that a legal person’s name should not give the false impression that its activity was linked to that of another legal person, i.e. to that of APEH in the instant case. Moreover, the Supreme Court found that the unauthorised use of APEH’s name contravened S. 77 (4) of the Civil Code, according to which it was a breach of the right to bear a name, if anyone used, without authorisation, a name identical with or similar to another person’s name. Finally, the Supreme Court considered that the expression ‘persecutees’, used in connection with APEH's name and regarded as defamatory, was contrary to S. 78 (1) of the Civil Code protecting one’s good reputation.

Furthermore, the Supreme Court held that any procedural shortcomings committed by the lower courts, in particular those concerning the handling of the submissions of APEH and of the Prosecutor’s Office, had not influenced the courts’ decisions on the merits of the case. The Supreme Court also stated that the applicants had been, throughout the proceedings, in a position properly to exercise their rights and, in the course of the second instance and the review proceedings, they could have made any comments, which they had not been able to advance previously.

B.Relevant domestic law

1.Section 1 of the 1989 Associations Act provides that freedom of association is a fundamental freedom open to everyone, which the Republic of Hungary acknowledges and the undisturbed exercise of which it guarantees. On the basis of this freedom everyone shall have the right to form, together with other persons, organisations and communities or to participate in the activities of such associations.

Section 2 (2) provides that the exercise of the right to freedom of association may not entail violation of the rights and freedoms of others.

According to Section 4 (1), subsequent to the formation of an association, its court registration shall be requested. Registration shall not be denied unless the founders have failed to comply with the conditions specified in this Act. Associations come into existence by registration.

Section 7 (1) provides that the name and the objectives of an association shall not create the impression that the activity it carries out is linked to the activity of another legal person, unless consent thereto is given by that legal person.

According to Section 15 (3), the court shall decide on requests for registration in non-contentious proceedings; such requests shall be given priority. The court’s decision shall also be served on the public prosecutor’s office.

2.Section 13 (3) of Government Decree no. 105/1952 (XII. 28.) provides that in non-contentious procedures the provisions of the Code of Civil Procedure shall be applied as appropriate, unless the legal provisions governing certain non-contentious procedures provide otherwise or the non-contentious nature of the proceedings excludes that.

3.Section 77 (1) and (4) of Act no. 4 of 1959 on the Civil Code provides that everyone shall have the right to bear a name; it shall be a violation of this right if anyone unlawfully uses a name identical with or similar to the name of another person.

According to Section 78 (1) and (2), the protection of the personality rights shall include the protection of the right to good reputation; the assertion or dissemination of false or defamatory allegations on other persons or portraying real facts in a false aspect shall be deemed as a violation of the right to good reputation.

4.Section 2 (4) of Act no. 3 of 1952 on the Code of Civil Procedure provides that in case the public prosecutor intervenes in the proceedings, he shall enjoy all the procedural rights which the parties enjoy save the rights to secure settlements, to waivers or to the acknowledgement of rights.

5.An extract from Supreme Court (Administrative Collegium) Legal Opinion no. 1 reads as follows: “Before a decision is taken on the registration of an association, it must be examined whether the association’s choice of name meets the requirements of the exclusivity, genuineness and correctness of names”.

COMPLAINTS

1.              The applicants complain about the Hungarian courts’ refusal to register the applicant association.               They submit in particular that the refusal to register the applicant association under the name in question amounted to a breach of their right to freedom of expression, namely, to pronounce their opinion about the nature of the Hungarian taxation system by using the impugned name. They invoke Articles 10 and 11 of the Convention.

2.              Moreover, the applicants submit under Articles 6 § 1 that the non-contentious court proceedings with a view to the applicant association’s registration were unfair and lasted unreasonably long.

3.Lastly, the applicants complain under Article 13 of the Convention about the absence of an effective remedy in respect of their above complaints under Articles 10 and 11.

PROCEEDINGS

The application was lodged with the European Commission of Human Rights on 29 April 1996 and registered on 22 July 1996.

On 15 January 1997 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 § 2 (b) of its Rules of Procedure.

The Government’s written observations were submitted on 17 March 1997.

On 11 May 1997 the applicants submitted observations in reply to the respondent Government’s observations.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the European Court of Human Rights in accordance with the provisions of that Protocol.

THE LAW

1.              The applicants complain about the Hungarian courts’ refusal to register the applicant association.               They submit in particular that the refusal to register the applicant association under the name in question amounted to a breach of their right to freedom of expression, namely, to pronounce their opinion about the nature of the Hungarian taxation system by using the impugned name. They invoke Articles 10 and 11 of the Convention.

 The Court observes that in the present case the applicants’ right to freedom of expression including the right to hold an opinion about the Hungarian taxation system was exercised in a particular way, namely, by founding the applicant association and naming it in the impugned manner. In these circumstances the Court considers that the main aspect of the above complaints concerns in fact the Hungarian courts’ refusal to register the applicant association. The Court has therefore examined the complaint under Article 11 of the Convention (see the Sidiropoulos and Others v. Greece judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1619, § 52).

Article 11 of the Convention, so far as relevant, provides as follows:

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others … .

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. …”

The Court accepts, and this is not contested by the Government, that the refusal to register the association constituted an interference with the applicants’ right to freedom of association. Such an interference will contravene Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims under paragraph 2 and was “necessary in a democratic society” for achieving them.

The Government submit that the interference was “prescribed by law”, in particular, by S. 4 (1) of the 1989 Associations Act and S. 77 (4) of the Civil Code. Its aim was to protect “the rights and freedoms of others”, namely APEH’s right to good reputation. Since the name in issue contained the expression ‘APEH’s Persecutees’ which could be construed as defamatory for the Hungarian Tax Authority, it was necessary, in pursuance of S. 2 (2) of the 1989 Associations Act, to refuse the registration of the applicant association.

The applicants submit that their choice of name for the applicant association could not be reasonably regarded as entailing any serious consequences for APEH’s reputation. In any event, State agencies like APEH should tolerate criticism and their right to good reputation should not outweigh citizens’ right to freedom of association.

The Court finds that the interference was “prescribed by law”, namely by Sections 77 (1) and (4) and 78 (1) of the Civil Code. This has not been in dispute between the parties.

Moreover, as regards the aim of the interference, the Court recalls that the Supreme Court held, inter alia, that the name of a legal person should not give the false impression that its activity was linked to that of another legal person and that the use of the word “persecutees” together with APEH’s name was defamatory. The interest which was pursued was, therefore, to avoid confusion and not to allow a defamatory name. These interests fall under “the prevention of disorder” and “the protection of the rights of others”. The Court notes in that context that the defamatory nature of the proposed name is not so much a question of the defamation of APEH as such but rather that of its personnel.

It remains to be ascertained whether the interference was “necessary in a democratic society”.

The Court recalls that “States have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions.               Consequently, the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.               When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts” (see the above-mentioned Sidiropoulos and Others judgment, pp. 1614-1615, § 40).

The Court notes that the applicant association’s request for registration was refused by the Hungarian courts essentially on the ground that the intended name contained that of the Hungarian Tax Authority without the latter’s authorisation and also the term ‘persecutees’, which was regarded as defamatory for the Tax Authority. The Court considers that there is nothing to suggest that the applicants could not have founded and registered an association for the purpose of promoting the taxpayers’ interests in Hungary, had they chosen a name which had not implied a risk of confusion and not been defamatory. Consequently, the dispute only arose over the actual name of the association. The Court considers therefore that the interference with the applicants’ freedom of association was not particularly severe.

The Court further considers that it was legitimate not to accept to register the proposed name of the association because it could lead to confusion giving the impression that the association had an official character or was linked to APEH. On the other hand, the proposed name could be seen as being defamatory. In the Court’s view, it would therefore not appear to be disproportionate to require that the applicants changed the proposed name. The interference was thus justified under Article 11 § 2.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

2.The applicants complain under Article 6 § 1 that the non-contentious court proceedings with a view to the applicant association’s registration were unfair and lasted unreasonably long.

Article 6 § 1 of the Convention, so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair … hearing within a reasonable time ... .”

a.As regards the fairness of the proceedings, the Government submit that Article 6 was not applicable to the proceedings since no civil right or criminal charge was at issue. In any event, they submit that the applicants’ procedural rights were not infringed.

              The applicants submit that Article 6 was applicable to the proceedings since the Hungarian courts, by admitting APEH’s claims as to the use of name, in fact decided the dispute as to APEH’s personality rights within the registration proceedings. The proceedings were unfair in that the Hungarian courts allowed, without having informed the applicants thereof, the Public Prosecutor’s Office and APEH to intervene into the proceedings and that the first-instance court admitted, in a prejudicial manner, APEH’s claims as to the alteration of the name. The applicants were, in the first-instance proceedings, not informed of APEH’s submissions and, in the second-instance proceedings, of the submissions of the Public Prosecutor's Office.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and of fact, the determination of which should depend on an examination of the merits. The Court finds, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

b.The applicants also submit that the registration proceedings lasted unreasonably long in breach of the Convention and Section 15 (3) of the 1989 Associations Act.

The Court considers it not necessary to determine, in the context of this complaint, the applicability of Article 6 to the registration proceedings, since this part of the application is in any event inadmissible for the following reasons.

The proceedings started on 15 June 1993 when the fourth applicant requested the Budapest Regional Court to register the applicant association and ended on 20 June 1996 when the Supreme Court’s decision, given in the review proceedings, was served upon the applicants. The proceedings in question thus lasted somewhat more than three years.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely complexity, the conduct of the applicants and the conduct of the judicial authorities. In this instance the circumstances call for an overall assessment (see e.g. the Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, § 17).

The Court considers that the proceedings were of no particular complexity. As regards the applicants’ conduct, the Court observes that their unsuccessful motion of September 1993 to challenge the Regional Court for bias did to some extent contribute to the length of the first-instance proceedings.

As to the conduct of the judicial authorities, it is true that a certain delay appears to have occurred in the course of the appeal proceedings before the Supreme Court.

However, the Court, having regard to the fact that the applicants’ case was dealt with by two court instances and thereafter in review proceedings before the Supreme Court, considers that the overall length of the proceedings is not such as to have exceeded an acceptable limit in the circumstances of the present case (cf., mutatis mutandis, the Cesarini v. Italy judgment of 12 October 1992, Series A no. 245, p. 26, § 20). The applicants’ complaint about the length of the proceedings does not, therefore, disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

3.Lastly, the applicants complain under Article 13 of the Convention about the absence of an effective remedy in respect of their above complaint concerning the refusal to register the applicant association.

Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

The Court observes that the Budapest Regional Court’s decision dated 10 February 1994 rejecting the applicant association’s request for registration was, upon appeal, reviewed by the Supreme Court. Moreover, the latter’s decision of 2 October 1995 dismissing the applicant association’s appeal was subject to review proceedings in pursuance of the applicants’ petition for review. In these circumstances, the Court finds that the applicants’ submissions do not disclose any appearance of a violation of their rights under Article 13 taken in conjunction with Article 11 of the Convention.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without pre-judging the merits, the applicants’ complaint about the fairness of the registration proceedings; and

DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Erik FriberghChristos Rozakis
   RegistrarPresident

Full & Egal Universal Law Academy