Information Note on the Court’s case-law 23

October 2000

APEH Üldözötteinek Szövetsége and Others v. Hungary - 32367/96

Judgment 5.10.2000 [Section II]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Non-contentious proceedings concerning registration of an association: Article 6 applicable

Facts – The first applicant is an unregistered association whose title means “Alliance of Persecutees o f APEH”, APEH being the tax authority;  the other applicants are respectively vice-presidents and president of the association. They and other individuals founded the association in 1993 with the aim of promoting the interests of tax-payers. Their applicat ion for registration was returned by the Regional Court, which ordered them to obtain APEH’s approval for the use of its name and to change the word “persecutees” to something more neutral. APEH received a copy of this order before it was served on the app licants. The applicants refused to comply with the order and complained that the Regional Court was biased, referring to the fact that they had not been informed that the public prosecutor had intervened in the proceedings. This complaint was rejected by t he Supreme Court. The public prosecutor proposed that the application for registration should be refused by the Regional Court and the court duly refused the application on the grounds that the applicants had not obtained the approval of APEH and that the term “persecutees” was defamatory. The applicants appealed to the Supreme Court, which dismissed the appeal after receiving the submissions of the Attorney General. These had not been disclosed to the applicants. A petition for review was also rejected by the Supreme Court.

Law – Article 6 § 1: The “right” in dispute was the right to register an association, a right recognised under the relevant legislation. The proceedings thus undisputedly concerned a genuine and serious dispute as to the existence and ex ercise of that right. As to whether the right was “civil”, while under domestic law the right of association belongs primarily to the field of public law, the dispute essentially arose over the application of rules contained in the Civil Code. In any event , these considerations alone are not decisive for the applicability of Article 6. Under the relevant legislation, associations acquire legal existence only through court registration and it follows that an unregistered association constitutes only a group of individuals whose position is very different from that of a legal entity. It was therefore the association’s very capacity to become a subject of civil rights and obligations under Hungarian law that was at stake in the registration proceedings. In thes e circumstances, the proceedings concerned the association’s civil rights and Article 6 was thus applicable.

Article 6 § 1 guarantees in principle the opportunity for the parties to court proceedings to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision. Since the public prosecutor and the Attorney General intervened in the proceedings, Article 6 § 1 should have been respect ed, notwithstanding the non-contentious nature of the procedure. It cannot be said that the intervention by the public prosecutor, of which the Regional Court failed to notify the applicants, did not have any repercussions on the conduct of the judge in ch arge of the case;  furthermore, the fact that a copy of the court’s order was in APEH’s possession before being served on the applicants casts doubt on the fairness of the proceedings. As to the failure to notify the applicants of the Attorney General’s su bmissions to the Supreme Court, the principle of equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality: it is for the parties to assess whether a submission deserves a reaction and it is not acceptable fo r one party to make submissions to a court without the other knowing of them and having an opportunity to comment. It was therefore unfair that the applicants were not notified of the Attorney General’s submissions, whether or not they had a bearing on the case.

Conclusion : violation (unanimously).

Article 41: The Court considered that the finding of a violation constituted sufficient just satisfaction.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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