SECOND SECTION
DECISION
Application no. 50367/08
László TOROCZKAI
against Hungary
The European Court of Human Rights (Second Section), sitting on 8 October 2013 as a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 15 October 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr László Toroczkai, is a Hungarian national, who was born in 1978 and lives in Szeged. He was represented before the Court by Mr T. Gaudi-Nagy, a lawyer practising in Budapest.
The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the founder of the Hunnia “egy eredeti Magyarországért” Alapítvány (Hunnia Foundation “for an original Hungary”). He established the foundation on 10 September 2007. In its deed of foundation its objective was defined as, amongst others, aiming at:
“the reinforcement of the cultural identity of Hungarians living in Hungary and in the surrounding countries through keeping traditions, ... organising conferences and discussions ... in the whole Carpathian Basin”.
Furthermore, its declared objectives were, inter alia:
“the protection of the environment, flora and fauna, the support of alternative, environment-friendly energy resources, bio-agriculture in the Carpathian Basin ..., the support of publications, printed and electronic media, addressing the Hungarian population and the Carpathian Basin ..., the support of access to information in the mother tongue for the Hungarian population in the Carpathian basin...”
The applicant submitted to the Pest County Regional Court a petition requesting the registration of the foundation.
On 23 November 2007 the court rejected the registration in application of sections 74/A (2) and 77 (3) of the Civil Code. The court stated that the foundation did not fulfil the legal conditions, firstly, with respect to the naming of legal persons and, secondly, with respect to the aims of foundations. The relevant reasons for that decision read as follows:
“... According to the name of the foundation, its objectives are activities in support of an ‘original Hungary’, thus declaring the value judgment that current Hungary is a ‘sham’ Hungary, [which constitutes] a violation of the rights and legal interests of others. The real ... aims of the foundation ... shall be interpreted in the light of the public appearances of its founder and its president of trustees.”
On 10 December 2007 the applicant lodged an appeal with the Budapest Court of Appeal, requesting that the first-instance decision be quashed and the foundation be registered.
On 27 March 2008 that court upheld the first-instance decision, holding that the naming of the foundation did not meet the statutory criteria, and that the foundation did not have the prerogatives to carry out its declared aims and activities. The reasons for that decision included the following passage:
“... the foundation’s naming and aims could be attributed a political message and an ambiguous meaning in violation of the laws on the sovereignty of neighbouring states, could impair the rights of Hungarian national minorities, and could be detrimental to the prohibition of discrimination based on nationality.”
COMPLAINTS
The applicant complained that the Hungarian courts had unlawfully refused to register his foundation, and alleged a breach of Article 11 of the Convention. In his submissions, the national courts’ refusal to register the foundation was based on a value judgment and on a mere presumption about the true aims of the founders, derived from the name of the foundation.
THE LAW
The applicant complained that the Hungarian authorities had unjustifiedly refused to register the association he intended to create. He relied on Article 11 of the Convention.
The Government submitted that the applicant had failed to exhaust domestic remedies, namely, he had not pursued a petition for review before the Supreme Court (Kúria) as provided under sections 270 to 275 of the Civil Code. They moreover argued that the application was incompatible ratione materiae with the provisions of the Convention in that the establishment of a foundation is indeed an association of assets, rather than that of persons, only the latter falling within the ambit of Article 11.
The applicant contested these views, arguing in particular that a petition for review is an extraordinary remedy, available only theoretically. Moreover, he asserted that the purpose of a foundation was to enable a wide range of activities, associating several participants pursuing ideas similar to that of the foundation’s organising principle.
The Court considers that it is not necessary to examine the parties’ submissions concerning the compatibility of the application with the provisions of the Convention, since it is in any event inadmissible for the following reason.
The Court has already held that a petition for review is, for the purposes of Article 35 § 1 of the Convention, an ordinary remedy to be exhausted in civil matters (see, mutatis mutandis, Béla Szabó v. Hungary, no. 37470/06, § 16, 9 December 2008). However, the applicant has not availed himself of this legal avenue.
It follows that the application must be declared inadmissible for non-exhaustion of domestic remedies, within the meaning of Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy