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Acquisition of Legal Personality and Registration

Apeh Uldozotteinek Szovetsege, Ivanyi, Roth and Szerdahelyi v Hungary (decision), 31 August 1999 [ECtHR]

Case no 32367/96

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.

This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

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