Acquisition of Legal Personality and Registration

Apeh Uldozotteinek Szovetsege, Ivanyi, Roth and Szerdahelyi v Hungary, 5 October 2000 [ECtHR]

Case no 32367/96

32. The Court reiterates that for Article 6 § 1, in its “civil” limb, to be applicable there must be a dispute (contestation) over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question (see Frydlender v. France [GC], no. 30979/96, § 27, ECHR 2000-VII).

33. In the present case, the “right” in dispute was the right to register an association for the purposes of section 4(1) of the Associations Act 1989. The Court observes that this right as such was recognised under Hungarian law, namely under section 1 of the same Act. The proceedings undoubtedly concerned a genuine and serious dispute as to the existence and exercise of that right.

34. As to whether this right is a “civil” one, the Court reiterates that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State's domestic law. Article 6 § 1 applies irrespective of the status of the parties, the nature of the legislation which governs the manner in which the dispute is to be determined and the character of the authority which has jurisdiction in the matter; it is enough that the outcome of the proceedings should be decisive for private rights and obligations (see, among many other authorities, the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A  no. 301-B, p. 78, § 39).

35. The Court notes that, for the purposes of domestic legislation, the matter of the right of association itself primarily belongs to the field of public law. On the other hand, the dispute in the present case essentially arose over the application of rules which are contained in Article 77 and 78 of the Civil Code. In any event, these considerations alone are not decisive for the applicability of Article 6 of the Convention in the instant case.

36. The Court observes that, according to section 4(1) of the Associations Act 1989, associations obtain their legal existence only by virtue of their court registration. It follows from this rule that an unregistered association constitutes only a group of individuals whose position in any civil-law dealings with third parties is very different from that of a legal entity. For the applicants, it was consequently the applicant 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 these circumstances, the Court finds that the proceedings complained of concerned the applicant association's civil rights and that Article 6 was thus applicable in the instant case.

B. Compliance with Article 6 § 1

37. The applicants submitted that their case had involved a genuine dispute with the public prosecutor's office and, indirectly, with the Tax Authority. In such a dispute the domestic courts should have observed the principle of equality of arms. Since, however, the Regional Court had not informed them either of the letter written by the President of APEH or of the submissions filed by the public prosecutor's office at first and second instance and, moreover, had sent a copy of its order of 28 June 1993 to APEH before it had been served on them, the proceedings fell short of the basic requirements of Article 6 § 1 of the Convention. In that connection, they pointed out that the impugned procedure had enabled APEH's spokesman to present the court order in a television programme and, furthermore, that they had never received a copy of the important submissions of 24 January 1994 by the public prosecutor's office. The fact that their complaint about the Supreme Court's dismissal of their challenge for bias had remained unexamined aggravated the unfair nature of the proceedings.

38. The Government asserted that the letter by the President of APEH had reached the Regional Court prior to the introduction of the applicant association's request for registration and had not, therefore, constituted part of the case file.
Furthermore, the Government pointed out that the submissions by the public prosecutor's office dated 24 January 1994 – in fact its only reasoned submission with any bearing on the substance of the case – had been available to the applicants for comment. As regards submissions by the prosecution at second instance and during the review proceedings, the Government explained that these had only reiterated the prosecution's earlier position and that the failure to notify the applicants thereof had been of little importance.
In sum, the Government argued that neither the prosecution's intervention itself nor the courts' handling of their submissions had been such as to render the proceedings unfair as a whole.

39. The Court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33). In this context, importance is attached to appearances (see, mutatis mutandis, the Borgers v. Belgium judgment of 30 October 1991, Series A no. 214-B, p. 31, § 24, and the authorities cited therein).
Article 6 § 1 guarantees in principle the opportunity for the parties to a criminal or civil trial 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 (see, among other authorities and mutatis mutandis, the following judgments: McMichael v. the United Kingdom, 24 February 1995, Series A no. 307-B, pp. 53-54, § 80; Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 16, § 42; and Lobo Machado v. Portugal, 20 February 1996, Reports of Judgments and Decisions 1996-I, pp. 206-07, § 31). 

40. The Court notes that the public prosecutor's office and the Attorney-General's Office intervened in the proceedings under Article 2/A of the Code of Civil Procedure. That being so, the Court finds that, notwithstanding the non-contentious nature of the proceedings, the rights in Article 6 § 1 should have been respected.

41. While the Court finds it improbable that the letter from the President of APEH to the President of the Regional Court which arrived well before the introduction of the registration request had any repercussion on the conduct of the judge in charge of the case, the same is not true of the intervention by the public prosecutor's office, of which the Regional Court failed to notify the applicants. Furthermore, the fact that a copy of the order of 28 June 1993 was in APEH's possession before its service on the applicants – enabling APEH's spokesman to present it in a television programme – casts doubt on the fairness of the proceedings.

42. As regards the failure to notify the applicants of the submissions by the Attorney-General's Office at second instance, the Court notes the Government's assertion that these submissions had no bearing on the merits of the case. However, it is to be recalled that the principle of equality of arms does not depend on further, quantifiable unfairness flowing from a procedural inequality. It is a matter for the parties to assess whether a submission deserves a reaction and it is inadmissible for one party to make submissions to a court without the knowledge of the other and on which the latter has no opportunity to comment. It was therefore unfair that the applicants were not notified of the submissions made to the Supreme Court by the Attorney-General's Office (see, mutatis mutandis, the Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, pp. 359-60, § 49 in fine).

43. In view of the above, the Court concludes that the principle of equality of arms has not been respected. It does not find it necessary to examine also the question whether or not the applicants were notified of the submissions of the public prosecutor's office dated 24 January 1994 or whether the Hungarian courts were under a further obligation to examine the applicants' complaint about the Supreme Court's dismissal of their challenge for bias.

44. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

Submit Information



Enter Keyword

Select one or several topic(s)



Registration Founding meeting Documentation Premises Grounds for refusal Processing applications Fair decision-making Renewal requirements Need for precision in any requirements Name or description Length of existence Delay Opportunity to amend application Judicial control