ANNUAL REPORT

                                                                  OF THE PARLIAMENTARY COMMISSIONER

                                                              FOR NATIONAL AND ETHNIC MINORITY RIGHTS

                                                                                                 1997.

                                                                                             /EXTRACT/

  INTRODUCTION

  I. Discrimination in the practice of some authorities

  1.) Complaints filed against resolutions of municipality boards and mayors

  1.1 General features of complaints related to housing matters
  1.2 Constitutional irregularities related to occupancy without legal title
  1.3 General features of complaints related to welfare benefits
  1.4 Anomalies related to the issuing of interim aid

  2. Complaints received in official matters within the scope of authority of the notary public

  2.1 General remarks
  2.2 A complaint filed against the notary public's planning permission resolution of the first instance
  2.3 A complaint related to the resolution of the registry authority under the notary public's supervision
  2.4 A complaint filed against the resolution of first instance adopted by the notary public for criminal offences
  2.5 A complaint related to the procedure of records of addresses of domicile kept by the notary public
  2.6 Summary

  3. Alleged discrimination in state education facilities

  4. Complaints filed against investigating authorities and authorities of justice

  4.1 Introductory remarks
  4.2 Features of complaints filed against the police

  5.  Infringement of personal rights or of human dignity

  5.1 General features and problems of legal appraisal
  5.2 Cases limiting the freedom of expression of opinion

  6. Complaints related to labour discrimination

  6.1 General description of the problem and the legal background
  6.2 The provision of public work and related problems
  6.3 Specific complaints

  II. The relationship between local governments and minority self-governments, and problems of cooperation
 
  1. Peculiarities and general features of the minority self-government system

  2. Special problems related to national minority self-governments

  3. Experiences with local minority self-governments

  3.1 Material conditions for the operation of minority self-governments
  3.2 Termination of minority self-governments

  III. Specific problems related to minority institutions with respect to the enforcement of rights providing minority cultural autonomy

  1. Characteristic problems of national and ethnic minority education

  1.1 General features
  1.2 Kindergarten
  1.3 School education
  1.4 Special curriculum for Roma pupils to assist them in catching up
  1.5 Funding
  1.6 Textbook supply
  1.7 Teacher training, continued training

  2. Problems related to minority cultural institutions

  2.1 General features
  2.2 Opportunities for the operation by minority self-governments of cultural educational and educational institutions, and related problems

  IV. Legislation and administration of law affecting minorities

  1. Brief presentation of legal regulations used as a basis for the investigative work of the parliamentary commissioner for minority rights

  1.1 Control of administration of law
  1.2 The relationship between the minority commissioner and legislation

  2. A brief survey of some major legal regulations affecting minority rights

  2.1 European Chart of Regional and Minority Languages
  2.2 Frame Convention on the Protection of National Minorities
  2.3 Government Decree No. 1093/97 (VII.29.) on the Package of Medium-Term Measures Regarding the Improvement of Living Conditions of the Roma Population

  3. Opportunities inherent in legislation, major trends of development

  Statistical processing of cases filed between 1 January 1997 and 31 December 1997
 

INTRODUCTION

1997 was a controversial year in terms of minorities issues.  First of all let us look at the major conclusions to be drawn from the statistical figures contained in the Annex:

a) The trend in overall figures remained similar to that of the previous year.  There were hardly any changes either in the number of complaints received or in their regional distribution.  Based on regional statistical figures, it is difficult to identify critical areas apart from counties with a significant proportion of ethnic minorities;  particularly counties with minorities disadvantaged in several respects stand out, e.g. those where the Roma population is higher than on average.

 As regards the number of plaintiffs from each minority it can be seen that, once again the majority of plaintiffs are Roma, although the number of Roma plaintiffs as a percentage of total plaintiffs slightly decreased (from 68% to 63%).

b) Looking at the number of complaints received by different authorities, at first sight it seems there has been no radical change.  However, on closer inspection, it appears that although the number of complaints concerning the police continues to be relatively large, there are signs that recent measures may result in a downward shift.

c) It is also striking that the large number of complaints with respect to the administration of justice persists despite the fact that this area is outside the scope of the ombudsman’s authority in Hungary. The initial explanation of such a significant level of dissatisfaction with the ombudsman system already manifest in its first year of operation was merely that the public was uninformed about how it worked. By now however it has become clear that dissatisfaction is rather permanent, which raises the question of how the ombudsman’s scope of authority should be regulated.

d) It is a commonly-held tenet in most European countries with deeply-rooted democratic traditions that the principal guarantor of the ombudsman and virtually the sole ”external guarantee” of his/her efficiency is public opinion transmitted (and influenced) by competently-functioning media (i.e. one which stands for constitutional order and social progress).  From this viewpoint as well, last year’s experience was ambivalent.  Several cases provoked fierce debate in the media, among journalists, commentators and others prominent in the public domain.  Not only civic spirit and consideration failed to receive support, but in some cases subjective opinions prevailed over facts, not making it possible for ordinary people, who are otherwise inclined to form unprejudiced opinions, to take a position.

e) However, despite all the debate, we believe our measures, recommendations, initiatives and mediation continue to be of value and highly appreciated.  This is demonstrated by the fact that the general public approves, requires and highly ranks the role of the ombudsman.  The need for it to exist has been also accepted by the authorities concerned and public administration in general has recognised its intrinsic advantages.

f) It is also useful to explore trends in the year in question from a minority law perspective, which we do in one of the later chapters.  In this section we point out in short that the task of appropriate harmonising and incorporating of minority legislation into the legal system remains incomplete.  Our report on the same issue last year has lost none of its relevance.  The most important development from a minority perspective was the amendment to the public education act, which we will discuss in detail later tied in with a comprehensive study.  Two major international conventions, the minority language charter and the minority framework agreement have all come into force.  In future, their effect on the development of domestic legislation and jurisdiction remains to be seen and shall be duly monitored.  There has been no progress in anti-discrimination legislation.  It is a matter of concern that the time period contained in the relevant section of the government decree on the medium-term policy package concerning measures aimed at improving living conditions of the Roma population has passed by without any tangible results.

g) Finally, the most obviously controversial problem area during 1997 was the minority self-government system.  At the time of writing, close to the end of the first electoral term, it seems that despite all the initial difficulties such as local hostility and inconsistencies in legal regulation the minority self-government system is on the way to consolidating its status and role.  Last year in a large-scale study, we focused on minority self-governments and reached a similar conclusion.

The study, which was carried out by the Regional Research Centre of the Hungarian Academy of Sciences in Pécs, was the first to rigorously examine the issue.  Objectives of the study and topics considered were the following:

•  It seemed necessary to rigorously define the public law and constitutional status of minority self-governments, explore potential alternatives and inconsistencies of regulation ”de lege ferenda”.  This led on to a look at foreign models, and a comparative analysis;
• A separate attempt was made to expose anomalies in the funding scheme;
• We attempted a nationwide sociological survey of the status, mode of operation and experiences of minority self-governments, including their self-image and network of contacts.
• The study also contained two case studies: the first looking at Baranya County (of particular interest from a minority perspective), the second at the county seat, Pécs.

We believe the commissioning of the study was justified on two grounds, one being that there had never been such a study before, and the other being that the regulation of the minority self-government system is currently being reviewed and such an empirical study can provide valuable assistance.  All the more so as many inconsistencies could certainly have been avoided had such a study been performed prior to 1993.  Perhaps it is still not too late.
Furthermore, the study is important as it provides fundamental information to minority self-governments about themselves.

 However, central to the successful functioning of the minority self-government system and the entire minority policy is the attitude of local governments.  Below are some background facts:

• The overwhelming majority of public affairs affecting citizens are local affairs and hence in the domain of and the responsibility of local governments.  The average person’s perception of public affairs (operational and political) is mostly determined by his/her opinion concerning local governments.
• Local governments operate the most important public service systems, the largest two being education and health care.  The importance of both, and particularly the former, for typically more-deprived minority groups is self-evident.
• Minority communities may be defined locally;  local tensions are typically in the background of minority affairs.
• The major partners (competitors?) of minority self-governments are local governments.
• Approximately one-third of the central budget, and hence by definition of taxpayers’ money is channelled through local governments.

Let us look at some figures.  It is now an established trend that almost half of all complaints are the result of alleged anomalies caused by municipalities.  Last year every single prominent case concerned the municipalities.  It would be too simple to claim that the municipality system is likely to be most inclined to commit legal offences.  Heavy work- and caseloads may be in large part responsible, and in that sense there is no significant difference between them and other authorities.  There are some conclusions, however, based on our experience, which lend greater significance to the statistics above.

In the current scheme, the minority self-government system grants great significance to the minority-friendly or anti-minority stance of local governments, the main reason being that minority self-governments are subject to the goodwill of the ”big brother” financially, professionally and in terms of local policy.  A great deal depends on the attitude of the mayor.  The significance, and at the same time the responsibility of the two partners in working out a good relationship is in direct proportion to the importance of their roles in local power.  While minority self-governments are always concerned by partners’ relations, this often cannot be reconciled with the ”power policy” of the local government.

Due to the above and some other factors, there has been a definite trend towards the significant politicisation of problems.

This is also true of minority affairs in general.  The bulk of complaints are not about confusion between municipalities but about their discriminative practice.  Simple irregularities in benefits, housing, education are at once charged with political content if the clients are from minorities, typically from the Roma minority.

A genuinely dangerous circumstance which gives reason for concern from the aspect of the rule of law is that some mayors and municipality boards, aware of the backing of (at least local) public opinion, consciously turn against lawful (constitutional) regulations or construe and apply them in their own particular way.  Failures of some of our recommendations last year all exemplify the above phenomenon.

 Obviously, the problem cannot be dismissed simply as a result of questionable policies or attitudes of a number of recalcitrant mayors.  The reasons are at least in part system-specific.  We do not intend to claim that the municipality system is the Achilles’ heel of our constitutional state system, but some of its components definitely need reforming.
A municipality system with a wide scope of responsibility, vested with wide-ranging autonomy and a related system of guarantees is inconceivable without an adequate control mechanism.  It is a long-standing problem that the legal control of municipality operations lacks financial resources, and hence its efficiency has been extremely limited.  And as far as financial control is concerned, it remains without doubt far from adequate.  This neither is nor can be substituted by any form of local democratic control relying on publicity.

A local, or more specifically, a small or not sufficiently organised community is vulnerable to rigid oligarchies due to the lack of or underdeveloped conditions for the division of local power.  The risk of a local ”one-party regime” developing should not be underestimated.  This scenario becomes more likely if the local government does not receive a sufficient amount of outside support, or if the national government delegates problem-solving to local communities disproportionately without at the same time providing required financial and professional conditions.

Only a properly operating control system can efficiently diminish the vulnerability of citizens, especially of those weaker groups in society less capable of defending their own interests.  The creation of such a control system is the constitutional duty of the state.

Dr. Jenõ Kaltenbach
 
 
 
 
 
 

I.

Discrimination in the practice of some authorities

1.) Complaints filed against resolutions of municipality boards and mayors

Among complaints filed against resolutions adopted by boards of representatives of local governments, municipality committees and mayors, those pertaining to municipality tenements and those filed in connection with obtaining a flat on welfare grounds merit special attention.
 
 

1.1 General features of complaints related to housing matters

Many people requested the ombudsman’s assistance in order to solve their housing problems.  These cases may be classified as follows:

• In several cases people find it unfair that they have been waiting for years to obtain a welfare flat and, although they are eligible, no favourable decision has been made in response to their housing applications;
• Those plaintiffs who purchased their municipality flat earlier among relatively preferential conditions, but are now unable to meet their obligations to pay costs of ownership and maintenance;
• Others who used the welfare flat-building aid, started building, but meanwhile, due to changed financial circumstances, ran out of funds and are now unable to complete the construction;
• Finally, those plaintiffs who apply for building aid but do not have other conditions required for construction (i.e. own funds).

Problems listed above are evidently not unique, and it is a widely known fact that they affect broad layers of Hungarian society.  The large number of housing matters arriving at the minority commissioner’s desk can be explained by the assumption of our clients that their problems are at least in part due to their ethnic affiliations and that municipalities discriminate against them on such grounds.

In the case of the majority of plaintiffs it is an undeniable fact that they live in large families with many children, often in temporary lodgings or in meagre conditions.  Thus they would be eligible for welfare or municipality housing but most municipalities do not have sufficient funds required to meet the demand.

In the course of the appraisal of each complaint, we found that local governments always acknowledged that plaintiffs were eligible, and they informed the clients of this and of conditions of application for welfare housing as regulated in municipality decrees.  There was no case in which it could be confirmed that any of the plaintiffs appealing to the minority commissioner were neglected at the adjudication of applications or at the flat allocation because of their ethnic backgrounds.
 
 

1.2 Constitutional irregularities related to occupancy without legal title

The number of individuals and families occupying flats without legal title in Budapest and several large towns throughout the country has, unfortunately, increased.  In such cases, there is no doubt about the lack of bona fide usage, yet plaintiffs, overwhelmingly of Roma descent, are appealing to the commissioner for national and ethnic minority rights with increasing frequency.  People filing complaints usually do not deny the fact of their illegal occupancy, but they challenge the legitimacy of measures taken against them and object to the harshness of their implementation.

The situation is aggravated and its complexity increased by the fact that often large families with many children are involved where parents are unemployed, live on welfare benefits, have literally nowhere to move, and failing alternative measures to obtain a flat, there is a real risk of the family becoming homeless.

A further feature of the situation which has thus emerged is that fundamental constitutional rights, primarily the right to property and the right to social security, are being compromised in the course of the authority procedures instituted against illegal occupants.

Undoubtedly, individuals moving into a flat without legal title violate the rights of the flat owner, typically the municipality, as they restrict the proprietor’s license of ownership and disposal.  On the other hand, the Constitution broadly declares the right to security of existence, and in this respect particularly provides in Section (1), Article 70/E that citizens of the Republic of Hungary are entitled to social security;  in case of old age, disability, widowhood, orphanage, and unemployment through no fault of theirs, Hungarian citizens are entitled to receive provision required for their sustenance.

However, the question is whether the right to residence constitutes a part of the fundamental constitutional right to social security, and how far this right extends.

Several arguments may be brought up in favour of a wide-ranging interpretation.  Section (1), Article 8 of the Act on Local governments refers the duty of providing for housing development, housing administration and welfare provision to local governments, but in general, those are unable to satisfactorily perform these duties primarily due to financial reasons.

It is essential to mention certain provisions of the Act on Children’s Rights and Guardianship Administration, which have recently become effective, and which raise further difficulties of statutory interpretation with respect to providing for accommodation.  Section (1), Article 7 of the Act sets forth that ”children may be separated from their parents or other relatives only in their own interest, on a case basis and in the way specified by law.  Children shall not be separated from their families for being threatened only in a financial respect”.

The same legal regulation requires parents to provide for their children’s housing, while Section (1), Article 77 provides that ”the public guardianship authority shall take the child into temporary care (...) if (...) their proper care cannot be provided for within their family.  Concurrently with taking the child into temporary care, the guardianship authority shall place the child with foster-parents or, if that is not possible, in a children’s home, or any other boarding institution”.

Perfectly lawful evictions may have such direct and automatic legal consequences as the children’s separation from their parents, as it is typical that in such cases parents are not able to lawfully comply with their obligation to provide residence for their children as required by law.

To sum up the above observations, we must conclude that the eviction of families with several children from a property they occupy without any title in any case infringes interests protected by law or fundamental rights declared by law, while the preservation of the unlawful status violates municipality proprietary rights guaranteed in the Constitution.

The adjudication of complaints appealing eviction and received by the minority commissioner is governed by the rule contained in Section (3), Article 20 of the Act on the Rights of National and Ethnic Minorities (”ARNEM”), under which it is explored whether the contested measure was taken because of ethnic affiliation or by applying discrimination.  We believe that real discrimination is very difficult to prove in cases where plaintiffs are illegal occupants, and it is hence hard to argue against their perceived mala fide.

We do not underestimate the complexity of the problem and try to handle it accordingly.  For this reason, the minority commissioner, along with the parliamentary commissioner for civil rights, asked the Constitutional Court to provide a legal definition of the extent of the right to social security contained in Article 70/E of the Constitution, with particular respect to whether the state may be found responsible for ensuring the enforcement of the right to housing.  The ombudsmen concurrently made sure that the Constitutional Court establish the existence or otherwise of anti-constitutionality manifest in the failure in question because the state failed to create the regulatory and institutional systems suitable to ensure the right to housing implied by the fundamental right to social security.
 
 

1.3 General features of complaints related to welfare benefits

People applying for extraordinary benefits for various reasons and complaining about municipality procedures find it unfair that they do not receive any welfare benefit, and therefore, live at below-subsistence level, and are unable to provide clothing and education for their children.

In general, investigations discovered that municipalities do provide assistance to the socially needy, as far as their financial possibilities allow, although undoubtedly not always to the extent applicants expect.

Municipalities provide subsidised school catering for children and grant families benefits for school books and school equipment at the beginning of the school year.  In addition, families may expect to receive special cash benefits several times a year.

However, municipalities are unable to assume all the costs of subsistence and the welfare benefits system cannot be expected to permanently make up for the lack of any revenue.

The situation was somewhat changed by the Act on the Protection of Children and Guardianship Administration, which entered into force on 1 November, 1997.  On a social level, relative to previous conditions, the main alterations were the introduction of the child-welfare benefit system incorporating obligatory and regular payments. Prior to this, although the needy could receive regular educational benefits, the majority of municipalities claiming budgetary reasons did not adopt any relevant resolutions.

The new legal regulation prevented municipalities from adopting and exploiting a discretionary or case-based approach..  All children are now entitled as a civil right to receive a subsidy the amount of which is specified at 20% of the old age pension, if legal conditions of payment otherwise exist.

Evidently, there were complaints about how the law is enforced.  Some municipalities were not prepared to issue the aid and, claiming financial reasons, paid only partial amounts to eligible applicants.

In other cases, objections were raised against the decision of municipalities to pay the child-welfare benefit to some families in kind.

The president of the Roma minority self-government in one provincial municipality area found it unfair that the local government issued food vouchers to needy families under the umbrella of child-welfare benefit which could only be exchanged in a shop supported by and within the scope of financial interest of the municipality.  Also the plaintiff objected in general to receiving food vouchers instead of cash.

In the course of investigating the complaint, we sought and obtained the official position of the Ministry of Welfare from which the conclusion to be drawn was clear, i.e. the child-welfare benefit may be provided in kind in accordance with provisions of the law but always with the interests of the child taken into account.  A decision to that effect must be made by municipalities involved, and in agreement with the minority self-governments concerned.  The enquiry, instigated by the public prosecutor’s office, is pending on whether the shop is actually within the financial scope of interest of the municipality, whether the offer may be regarded as preferential compared to other food retail outlets (considering price margin, etc.) or whether the outlined scheme allows abuse.

At this stage of the inquiry, we can already confirm that in general families accept receiving food vouchers instead of cash, but not that the vouchers must be used in specific shops which potentially operate with large price margins.

We found irregularities also in cases when the children’s school catering subsidy was paid at the expense of the child-welfare benefit, but parents were not allowed to have access to the exact accounting nor to receive monthly in cash the margin between the amount actually given and the amount of child-welfare benefit.

Despite the fact that the new Act on the Protection of Children is currently being tested in practice - first live-observations are expected to appear only during 1998 - this form of assistance is likely to raise further problems and there will probably be cases where the parliamentary commissioner will have to intervene.
 
 

1.4 Anomalies related to the issuing of interim aid

The president of the Roma minority self-government of a provincial town filed a complaint with the parliamentary commissioner for minority rights finding it injurious that the interim aid (special welfare benefit) was provided by the local government only to such applicants who held a certificate of having spent an amount of time specified by the town administration, i.e. five or ten days, doing public work.  The work provided by the town administration was typically seasonal or public domain jobs (lawn mowing, ditch cleaning, etc.) which are generally provided for by municipalities by employing public workers.  In the complaint, the plaintiff stressed that prior to the performance of work, the municipality had the workers sign a declaration to the effect that the work they performed was voluntary social work whereas in fact they argue that they were constrained to do so in return for the aid.

Based on the enquiry ordered we established that the municipality concerned in the complaint had developed an unlawful practice by stipulating, in addition to social need specified in law, the performance of ”voluntary social work” by applicants for aid as a condition of providing interim aid.

It was clearly established that neither the social act, nor the municipality resolution issued for local enforcement purposes set any other conditions in addition to social need for the distribution of interim aid.  However, the mayor admitted in a declaration made in public that the idea was his and his opinion in general about the matter was that only such people should queue up for aid who have done something for the town.

We contacted the mayor and intimated that the unlawful practice be discontinued and the municipality pay workers a compensation for any work performed clearly under pressure.  The move was rejected by the mayor with the reasoning that the unemployed who had received welfare benefit had performed voluntary social work.

Meanwhile, the Roma minority self-government obtained and gave us the personal declaration of 177 local residents who unanimously claimed that they were required to take part in voluntary social work in the hope of obtaining interim aid.  On the other hand, it could be clearly established on the basis of declarations that the town administration applied a particular rate system, i.e. five days had to be worked in order to receive interim aid or a food voucher of HUF 2,000, while applicants for fuel vouchers had to work for 10 days.

Based on factual evidence including documents obtained in connection with the case and in addition to the unlawful practice with respect to the provision of welfare benefits, the suspicion of malpractice in office was raised, which led to the ombudsman notifying the town prosecutor’s office of the violation of law and requesting that the local prosecutor’s office fully review the municipality’s practice in providing welfare benefits. Depending on the outcome of the enquiry, the ombudsman may initiate proceedings against malpractice in office, misuse of authority - a criminal offence - which conflicts with Article 225 of the Penal Code.  (At the time of writing, the prosecutor’s enquiry has not been completed, and hence we are unable to report on the outcome in this report.)
 

2. Complaints received in official matters within the scope of authority of the notary public
 
 

2.1 General remarks

According to the law, the notary public acts as authority of the first instance in official procedures in the competence of the mayor’s office.

Below some issues and topics are given as examples. All were part of complaints received by the parliamentary commissioner for minorities.

The task of the parliamentary commissioner for minorities was to find out whether minority rights were violated or could be violated in the course of the administration of official matters within the notary public’s scope of authority, i.e. whether any sign of discrimination could be found in official decision-making in respect of people belonging to ethnic minorities (indirect discrimination).
 
 

2.2 A complaint filed against the notary public’s planning permission resolution of the first instance

A plaintiff of Roma descent and living in a provincial municipality area complained that the local notary public refused to grant planning permission for the construction which the plaintiff had proposed and planned, presumably due to plaintiff’s origin.

In the course of the inquiry we found that the plaintiff had started the construction without any permission and this violation was discovered by the construction authority of the first instance.

The notary public in charge of planning permission warned the applicant that he should apply for planning permission for the building in its initial phase, or if he continues building, he may be fined a construction penalty.  We established that the warning from the notary public was lawful and there was no question of any refusal of the application on grounds of his ethnic background.
 
 

2.3 A complaint related to the resolution of the registry authority under the notary public’s supervision

The Greek Municipal Government addressed a letter to the parliamentary commissioner for minorities requesting assistance in the registration in Hungary of a Greek national’s marriage which took place in Greece.  This was deemed necessary as the individual involved received information from the Budapest Mayor’s Office which led him/her to assume that there was some legal hindrance in Hungary to the registration of his/her Greek first name.

We contacted both the Registration Department of the Budapest Mayor’s Office and the Citizenship Department of the Ministry of the Interior and stated our position that according to the Act on the Rights of National and Ethnic Minorities ”a person belonging to a minority has the right to freely choose his/her first name and the first name of his/her child, to have his/her first and last name registered under conventions governing the orthography of his/her mother tongue, and to indicate his/her name in official documents as long as this complies with applicable provisions”.

In the course of the inquiry, we managed to clarify that the competent registrar had not acted unlawfully when refusing the registration as the surname and the husband’s first name was misspelled in the translation prepared by the National Agency for Translation and Translation Certification, and the registrar requested the misspelling to be corrected ex officio.  Immediate registration was prevented in fact because registration could take place only after the aforementioned mistake, which appears formal but is in fact essential.

It could be established that the domestic registration of the marriage which had taken place abroad was conducted according to the plaintiff’s request, in compliance with provisions of the law.  The reason for the minor delay in registration was a faulty translation.  Regardless of the fact that minority rights were not infringed in this case, the position of officials of the Ministry of Interior with respect to this case was that in the course of the redrawing of the registration act, special efforts would be made so that the new legal regulation eliminates contradictions between the ARNEM and currently effective legal regulations on registration.
 
 

2.4 A complaint filed against the resolution of first instance adopted by the notary public for criminal offences

The president of the Roma minority self-government of a provincial municipality area objected to the notary public of the area notice requiring him/her to pay a penalty of HUF 2,000 for a breach of the peace. The plaintiff found it particularly unfair that the resolution issued by the notary public contained a stipulation in case of default of the imposed fine to be commuted to a sentence of ten days of imprisonment.  The plaintiff was convinced that the perceived injustice was related to his/her Roma descent.

In the course of the enquiry ordered by the parliamentary commissioner for minority rights, we clearly established that the case of offence was factually well-founded and the reference to commutation of the fine to imprisonment is a formal requisite of resolutions of offence in accordance with the Act on Offences.  Consequently, this stipulation of the operative clause is not discriminative either in this specific case or in general.

The inquiry established that the notary public acted in accordance with the law, and the resolution was held to be well-founded and therefore confirmed by the state administrative authority of the second instance.
 
 

2.5 A complaint related to the procedure of records of addresses of domicile kept by the notary public

The plaintiff appealing to the commissioner for minorities tried to register property with the mayor’s office in which the plaintiff had lived for over ten years.  The plaintiff claimed to have purchased the building on land in municipality ownership, but could not register it with the mayor’s office as his/her permanent domicile. The plaintiff assumed that the reason for the repeated negative decision of the mayor’s office was due to plaintiff’s Roma ethnicity.

In the course of exploring the complaint, we found that the plaintiff had indeed purchased the real property in which he/she resided, therefore the plaintiff was entitled to request his/her registration in the property.  Under the law any change of domicile must be reported to the notary public of the local government within three working days, and the notary public may reject the registration application only in specific cases.  Such cases include, as indicated in the legal regulation, a false registered address of domicile, and the registration form being signed not by the proprietor or the landlord/landlady.

We found that the rejection of the registration of address of domicile was not well-founded.

During the fact-finding phase of the inquiry, it was also established that the clerk of the mayor’s office and the notary public responsible for the clerk’s activities committed multiple violations of provisions of the Act on the General Rules of State Administrative Procedures.

Such violations occurred when the plaintiff’s registration applications were repeatedly rejected orally, i.e. the public administrative authority did not adopt any formal resolution.  Under provisions of the law minutes must be taken of oral applications, and this rule may be disregarded only in case when the public administrative authority fulfils the application immediately.  As this did not take place in the case outlined in the complaint, and the public administrative authority did not communicate its decision to the client in writing after the oral rejection, the client was also deprived of the opportunity for legal remedy.

The procedure of the mayor’s office also disregarded the administrative deadline.

In accordance with the findings outlined above, the parliamentary commissioner for minority rights directed the notary public to discontinue the unlawful practice and the infringement of the client’s lawful rights.
 
 

2.6 Summary

Experiences of enquiries concerning complaints received with respect to official cases involving municipalities, either in the scope of authority or under the supervision of the notary public, may be summarised from the perspective of constitutionality and minority protection as follows:

• No direct or even indirect conclusion can be reached about minority rights being infringed or about discrimination in official cases;
• Within the caseload of the parliamentary commissioner for minority rights, the number of complaints against decisions made in official cases to be classified here is small;
• In the course of the investigation of specific cases, it was evident that clients unfamiliar with the law are not properly informed by employees of mayor’s offices of their rights and legal statuses;
• Mayor’s offices do not always observe general rules of state administrative procedure, consequently in several cases formal and content related requisites of resolutions and notices are missing;
• Although it is not directly implied in complaints received by our office, based on oral complaints and other indicators it may be generally concluded that if a client belongs to a minority and presents his/her petition in his/her mother tongue, the readiness for reception by employees in mayor’s offices is inadequate, thus the right to the use of mother tongue is infringed during procedures.

In the course of the enquiry, a demand seems to be emerging that in the future, perhaps through regular informative lectures or via training, in each municipality notaries public should be prepared for the solution of problems affecting minority rights arising in the course of official duties as well as for the special handling of specific groups of cases.
 

3. Alleged discrimination in state education facilities

We believe that discrimination in state education facilities is a phenomenon which requires urgent attention.  With the intention of identifying any shortcomings in the area of minority education, we conducted a comprehensive nationwide survey the observations of which shall be presented later in detail.

Undoubtedly, the most notable case concerning discrimination in education was the separate graduates’ passing-out ceremony for Roma pupils in Tiszavasvári. [There is a tradition in primary and secondary schools in Hungary to organise at the end of the academic year a ceremonial farewell for graduating students in the course of which they walk along the school corridors singing traditional graduation songs.  (Translator’s note)]

The leaders of three Roma community organisations appealed to the President of the Republic requesting him to take measures concerning the case of a primary school in Tiszavasvári which decided to organise a separate graduates’ passing-out ceremony for Roma pupils.  According to information published in the local press, Roma pupils were not allowed to use either the school gymnasium or the school shop.  The ombudsman ordered the case to be investigated ex officio, the President of the Republic however also began an inquiry.

One of the housing estates in Tiszavasvári is significantly populated by Vlach (Romanian) Roma people whose children study at Ferenc Pethe Primary School.  The school has a tradition stretching back forty years. Pupils from the estate have always attended this school.  Teaching takes place in three school buildings all within a short distance from one another.  No differences in the material conditions of teaching (i.e. building, equipment) are discernible between the three school buildings, certainly nothing which could be regarded as a basis to allege discrimination.

The main building is the most recently constructed and is hence unsurprisingly in the best condition.  The school has one gymnasium which is located in the main building, consequently its use is easier for pupils studying in that building, which in itself cannot be regarded as discrimination against other pupils.  There is no significant difference in the number of pupils in classes placed in the different buildings.

On 23 April, 1997, the school’s faculty decided on the basis of a resolution adopted by the majority of faculty members to separately organise the graduates’ ceremony of Roma pupils.  The reason for the decision, it transpired, was that at that time a high percentage of children were infected with various contagious conditions ranging from lice to skin conditions and the faculty meant to protect parents and guests attending the ceremony from the risk of infection.  The use of the gym was denied to Roma pupils for the same reason, although no formal decision was made on the issue.  Parents were informed of the separate graduates’ ceremonies at the parents’ meeting and during individual discussions.

Additionally, the local government carried out a rationalisation or streamlining of its resources in 1995 as a result of which staff numbers were reduced.  The health officer, who was responsible for ensuring regular bathing and medical check-ups for pupils and carrying out appropriate treatments, was removed. After 1995, the infection of the school’s Roma pupils rapidly increased.

The following discriminative features were noted with respect to usage of the gymnasium.

According to available information, no formal decision was made on the matter.  The operator of the school (the local government) did not object to the practice adopted by the school board;
Given that there was not always a connection between the infection and the usage of the gym, prohibition affected also those who were not infected.

The case of the separate graduates’ ceremony is similar.  The reason given by teachers to defend their decision was the pupils’ infection. The reason given is placed under question by the fact that there was never any such measure taken earlier although there was a similar rate of infection.  Due to the collective nature of the decision, the result affected the infected and the uninfected alike.  Although discriminative intention as a motive for the faculty’s decision cannot be proven, the incidents, including the lack of preparation and the method of administering the ceremony, clearly appears to have led to discrimination.

Although the separate graduates’ ceremony for Roma pupils prevented others at the ceremony becoming infected, the fundamental problem, i.e. the infection of most Roma pupils, remained unresolved.

In one sense the events described above could be regarded as the consequence of grave social and sanitary conditions which cannot be dealt with in isolation, without also addressing the root causes of the problem.  As long as there is no change in the living conditions within the estate, sanitary risk may be used as the reason or grounds for discriminative educational measures.

The problem can be solved only if people living on the estate, both Roma and non-Roma, the mayor and the board of representatives of the local government, the mayor’s office, teachers, community organisations, various institutions and authorities all jointly find the best solution.  In Tiszavasvári, we found that there did exist a desire for such cooperation.  The board of representatives of the local government also urged coordinated, permanent cooperation and mutual assistance between the institutions and organisations concerned.

Teachers agreed to take part in a training-course in which they sought to widen their knowledge of Roma culture.  At the reconciliation meeting, the town administration gave us a copy of the package of measures to be used to improve the living conditions of the estate’s Roma population, as far as the municipality’s resources allow. It is to be hoped that as a result of these measures and continued cooperation the issue of the segregation of the Roma minority in the community life of the estate can be over time resolved.

The parliamentary commissioner for minority rights significantly contributed to the final outcome and solution of the issue by making a recommendation to both the municipality and senior officials of chief authorities responsible for the identifying and solving of constitutional anomalies.

The board of representatives of the local government accepted provisions from the recommendation and on that basis quickly elaborated a detailed package of measures put together in the form of a resolution.  Both the Minister of Culture and Education and the Minister of Welfare welcomed the ombudsman’s proposals and specifically pledged to implement them in practice.
 
 

4. Complaints filed against investigating authorities and authorities of justice
 
 

4.1 Introductory remarks

By comparing statistical figures of the activity of the parliamentary commissioner for national and ethnic minority rights between 1 July, 1995, and 31 December, 1996, with the number of registered complaints in 1997, it can be seen that the number of cases handled by the police, public attorney’s offices, courts and penitentiary facilities has not significantly improved.

A common feature of complaints concerning these institutions is that they all somehow object to the practice of justice administration, to its factual and legal grounds, or find the work of authorities acting in criminal cases discriminative.

However, before coming to concrete conclusions from these statistics, we should look first at the substance of complaints.  In general we can say that the relatively large number of complaints filed against procedures of courts or penitentiary facilities were drafted subsequently, after the event, and hence question whether the police procedure preceding the phase of sentencing was justified.

Not infrequently, a criminal procedure is already in the judiciary phase or the plaintiff is already serving his/her prison sentence after the procedure is completed with a final and enforceable sentence when the plaintiff makes his/her appeal to the parliamentary commissioner for minority rights, or objects to the discriminative nature of the investigation ordered by the police, and claims that he/she was summoned to court without any reason or was sentenced without being guilty.
 
 

4.2 Features of complaints filed against the police

Complaints related to the activity of police authorities refer to infringements which conflict with provisions of the Penal Code.  There is a significant number of complaints purporting to the criminal act of misuse of office, which conflicts with Article 225 of the Penal Code, and for the offence of ill-treatment in office conflicting with Article 226 of the Penal Code.

In cases where the complaint alleging police misconduct is submitted in writing or orally, the parliamentary commissioner has no other choice but to file charges with respect to a criminal act committed to plaintiff’s grievance in the commissioner’s own name.  Public attorney’s investigating offices operating within the Budapest metropolitan area and county public attorney’s offices have the authority to order an investigation for criminal acts in office committed by policemen, and take other measures according to the Code of Criminal Procedure.  As far as these investigating offices are concerned, we can state unambiguously that they always ordered an investigation at our request without an exception, and provided information on the outcome of the criminal procedure within the set term.

The law does not contain any further provision in connection with the ”obligation to file charges”, thus the task appears simple.  However, in reality the parliamentary commissioner encounters cases very frequently indeed where the suspicion of a criminal act arises, or where there is significant disagreement between various authorities regarding their respective penal qualifications.  The following specific case is included here to demonstrate the point:

A complaint was received by the central police station of a town because a man was refused service in a restaurant on the grounds that ”no Roma can shop there”.  When the man objected to the discriminative treatment, he was threatened that if he does not leave, he would be driven out.

The plaintiff submitted his complaint to both the police and the minority commissioner.  We filed charges in the case and, as the police did not find reasonable cause to suspect a criminal act, we requested the District Attorney’s Office to take a stand in the case.  According to the position of the District Attorney’s Office, no criminal act as defined by the Penal Code was carried out by the incidents described in the complaint, therefore the District Attorney’s Office agreed with the police procedure in the course of which the complaint was handled not as a charge but as a report.

We could not accept this position because in our opinion the facts of the case presented by the plaintiff are sufficient to establish reasonable cause to suspect a criminal act of discrimination against members of a national, ethnic, racial or religious group, which conflicts with Section (1), Article 174/B of the Penal Code.  The new facts of the case were incorporated by legislation in the system of the Penal Code in 1996 precisely to allow a sufficiently serious penalty to be imposed for the conduct of any individual who assaults someone else by reason of the latter’s supposed or real affiliation with any minority group, or forces such individual by violence or threat to do something, not to do something, or to endure something.

As we held the view that the facts of the case in question contained grounds for filing charges, we filed charges at the public attorney’s office in the county where the case occurred for reasonable suspicion of criminal act, and put forward our position in detail.

The county public attorney’s office ordered an investigation on the grounds of reasonable suspicion of criminal act as we indicated, despite the former stand of the Attorney General’s Office, and instructed the county central police station to carry out the investigation.

Previous to this, various organisational units of the police had readily implemented measures upon the request of the parliamentary commissioner in cases where the procedure was based on some action infringing the rights of a minority or individuals of a minority.  During 1997, there were effective measures taken in several such cases.

The following case should serve as an example of the above:  the chairperson of one of the Roma community associations advised the parliamentary commissioner of a group of skinheads assaulting minor members of a Roma secondary school club in a village in the environs of Budapest.

On the day that the report was made, the parliamentary commissioner requested the head of the criminal department of the competent town police station to take immediate police measures and information on the case to be provided.  In his letter dated the next day, the parliamentary commissioner requested the head of the supervising police headquarters to provide information of the outcome of the investigation as it progressed.

The head of the police headquarters reported in his letter that an official investigation had been ordered on grounds of reasonable suspicion of the criminal act of violence against members of a national, ethnic, racial or religious group, committed in group.  In the course of the investigation, it was established that the perpetrators assaulted a young man because of his Roma descent who as a result suffered injuries from which eight days were needed to recover.  The two girls in the company of the injured party managed to escape.

As a result of the immediate police action witnesses were soon identified.  Based on evidence provided by the witnesses, four individuals were detained.  The act transpired as set out above, the individuals concerned admitting they assaulted the injured party purely because he was Roma.

In addition to cases entered in the records of the Office of Parliamentary Commissioners, the number of complaints communicated to us by telephone is also significant.  In such cases, for practical reasons, we advise callers that a competent authority exists which has a procedure to deal with their case and where they can file charges and complaints.  Afterwards, we log the details of the outcome of the procedure, or in the case of rights being infringed in the procedure (i.e. when the plaintiff contacts us repeatedly) we reserve the right to become actively involved in the case.
 
 

5.  Infringement of personal rights or of human dignity
 

5.1 General features and problems of legal appraisal

Complaints filed with the parliamentary commissioner for minority rights in which citizens, particularly of the Roma minority, object to discrimination employed against them, sometimes for blatantly racial reasons, merit special mention.

It is difficult to create a set classification for various forms of discriminative behaviour in this group, however, we should highlight a few typical cases:

For example, one of our clients living in a large provincial town found it injurious that his son as well as friends of his were not allowed to enter a club because of their Roma descent, as opposed to other friends of theirs of the same age who are not of Roma ethnicity.  The phenomenon unfortunately  cannot be regarded as unique when someone is restricted in their freedom due to their descent, which is sometimes only assumed, by not allowing them to enter a restaurant, or club, or public open-air pool which is otherwise open to the general public.

Needless to say, such discrimination is humiliating and infringes human dignity, but unfortunately, in the overwhelming majority of cases, it is extremely difficult to prove that discrimination actually took place and that it was based on racial prejudice.  Considering that in the case of most complaints only the plaintiff’s evidence supports the violation of the general anti-discriminatory provision contained in Article 70/A of the Constitution, we do not have the means to establish the fact or otherwise of a specific constitutional irregularity, and initiate appropriate measures.

The assessment of these complaints is rendered particularly difficult by the fact that such legal violations are generally committed by private individuals, business organisations, and not authorities, therefore we can use our right of requesting data and information only indirectly through the notary public or consumer protection organisation responsible for the area.

Although the Constitution decrees that discrimination of people on the basis of race, colour, gender, language, creed, (...) national or social affiliations, etc. is severely punishable by law, our experience is that in some cases, failing any special provisions of law, the prohibitive provision of the Constitution is of no significant weight, hardly more than lip-service, a cosmetic declaration.

Obviously, it is a different case if the action amounts to a graver legal violation in addition to discrimination.  This taken into account, associates of the parliamentary commissioner for minority rights deem it necessary to provide detailed information to the aggrieved plaintiff about the lawful conditions of establishing the nature of the offence, conflicting with Article 179 of the Penal Code, in connection with a similar, or a potential future event.  Plaintiffs are also advised of the authority and form where and in which they may initiate legal proceedings.

The legal case where the plaintiff claims not to have been served in the supermarket due to his alleged shoplifting, may be equally classified in this group.  According to the plaintiff, the shop keepers’ behaviour which caused offence was based solely on prejudice, not on any real suspicion of shoplifting and was motivated only by ”racial hatred”, i.e. that the plaintiff belonged to the Roma minority.

In this case, unfounded allegations of shoplifting could amount to the offence of libel, which conflicts with Section (1), Article 179 of the Penal Code and which is qualified under Section (2) of the same, as the law orders any individual to be penalised who asserts or divulges before any third party any fact suitable to impair the honour of someone, or uses any expression directly referring to such a fact.  In this case, we could not initiate a criminal procedure based on the facts of the case described in the complaint, because a criminal procedure for the offence of libel may be ordered only on the basis of a request of prosecution by the injured party.

We advised the plaintiff of both the conditions of conducting a criminal procedure and the legal nature and term of a request of prosecution, and provided additional information about the fact that the offence of libel is to be penalised more severely if libel is committed for base motive or purpose, e.g. discrediting of someone expressly for his/her descent, in public, or by causing considerable infringement of interests.
 
 

5.2 Cases limiting the freedom of expression of opinion

The minority commissioner was notified by printed and electronic media that on 13 April, 1997, in the radio programme called ”Sunday Newspaper” songs were broadcast containing lyrics and expressions which could reasonably cause offence to the German minority in Hungary, as well as incite a community which conflicts with Article 269 of the Penal Code.

The inquiry of the minority commissioner subsequently proved to be justified as several complaints were filed with us afterwards in connection with the case.  Our procedure, in the absence of any other legal avenue, consisted primarily in monitoring the course of the criminal procedure as well as keeping abreast of the legal position of the National Police Headquarters and the Budapest District Attorney’s Office.

We established as a result of the inquiry that in this specific case there was no criminal act which conflicted with Article 269 of the Penal Code, so we acknowledged the police authority’s resolution to discontinue the investigation.

Evaluating the case, we consider that the principal positive outcome was that we were able to demarcate the freedom of expression of opinion, as a fundamental constitutional right, and the concept of incitement as defined by the Penal Code.

Considering the relatively large number of similar cases and the likelihood of such incidents recurring in the future, it is valuable to clarify in the parliamentary report that the freedom of expression of opinion clause is an inherent part of a democratic society even if it entails the publication of information, principles and views which are insulting, startling or raise concern.

The legal concept contained in Article 269 of the Penal Code ”incitement to hatred or any other act suitable to provoke hatred” refers to the case when an individual encourages, excites, or incites hostile behaviour against or activity causing damage to any individual, group, or organisation.  Thus the offence of ”incitement” is directed at provoking active hatred and ultimately violent action.
 
 

6. Complaints related to labour discrimination
 

6.1 General description of the problem and the legal background

Section (1), Article 70/B of the Constitution of the Republic of Hungary states that in Hungary it is a fundamental right that everyone is entitled to work and has freedom of choice concerning work and employment.  Article 70/E further states that the Republic of Hungary provides entitlement to all of its citizens to social security, and to at least a subsistence standard of living.

According to Section (1), Article 70/A, the Republic of Hungary provides human and civic rights without any discrimination as regards race, colour, gender, language, creed, political or other opinion, national or social origin, property, birth or other condition.

In Article 9, the Constitution declares that the economy of Hungary is a market economy which recognises and supports the right to entrepreneurship as well as the freedom of economic competition.

An essential feature of a market economy is that everything is available against a price, actors in business life, primarily business associations but also individuals, can only succeed if they offer such goods to the social market in the broadest possible sense of the term, for which there is real demand.

Nowadays this is increasingly true of the labour market as well, which has substantially changed in the past decades, but especially after the change of regime.

Changes affected some regions of Hungary particularly adversely where the proportion of underprivileged people, Roma included, within the population is significant.

According to the experience of enquiries conducted by the parliamentary commissioner, it may be established that the Roma unemployed are not aware, or are hardly aware, of their rights, opportunities and obligations.  There are few exemplary, successful employment programmes available as a precedent, and it is mostly those more isolated regions which do not hear of such projects and examples to be followed.
 
 

6.2 The provision of public work and related problems

The Act on the Promotion of Employment and Provisions for the Unemployed defined the concept and specified the rules of public employment.  Under the Act, public work is used in practice primarily to develop and maintain local infrastructure, as well as provide community duties performed in the service sector.  The principle of public employment is that unemployed people who are otherwise fit for work should be supported by providing them with adequate employment and according income instead of benefits.

The Act referred the authorisation of public employment to the authority of labour centres answerable to the Ministry of Labour, and allowed employers which employ unemployed individuals in the course of providing public work in areas meeting the general needs of the population or the locality, to request the refund of maximum 70% of their direct costs arising in connection with such employment.

Due to the fact that public work is mostly performed for the population and the locality, it offers an opportunity and a responsibility mostly to local governments.  In addition to meeting the needs of the population and of local governments, public work may be used
 

• to add to the number of jobs (workplaces) offered by labour centres, and thus to help reduce unemployment;
• as an indicator of the willingness of the unemployed to actually undertake work;
• to provide income to those whose entitlement to unemployment benefits has terminated;
• to allow participants to obtain work experience and assist them in securing further or other employment.
• Regarding the Roma minority, the following special features are seen, based on practical rather than empirical experience:
• There are more entry-level unemployed among the Roma due to demographic reasons;
• Based on practical experience, it may be considered a general phenomenon that the professional qualifications of the Roma are lower than those of other layers of the society. Consequently, the structural transformation of the labour market which resulted in large lay-offs of unqualified labour disproportionately hit the Roma community;
• Traditional Roma professions and occupations (e.g. basketry, adobe-making, trough-carving, etc.) are on the verge of extinction due to a decreased market demand;
• Lack of information and self-esteem are widespread among the Roma community.

6.3 Specific complaints

In some of the complaints we receive, plaintiffs object to municipalities not providing them public work without any apparent reason. On the other hand, when public work is provided, plaintiffs often criticise the distribution of work opportunities, claiming that it is arbitrary, unjust and unjustifiably biased.

Typically, many Roma unemployed believe the obvious reason why they do not find work is racial prejudice.

A resident of Budapest visited the parliamentary commissioner. He explained in connection with his earlier written complaint that he had been unemployed for a long time, nearly two years, and although he had applied for several job offers published in advertisements, nowhere was he offered  the job, presumably for his Roma origin.

He also argued that he had no written or other material proof of not having been employed for his Roma descent, but he did say that while he was encouraged and promised things on the phone, after the first personal meeting, he was always turned down.  When he asked for reasons why he was turned down, he was never told that he was not sufficiently qualified, but rather that the position had already been filled.

In such cases one of the fundamental problems is that plaintiffs have difficulty understanding that the parliamentary commissioner for national and ethnic minority rights does not have the authority to order employers, either legal or natural persons, to conclude labour contracts.

A further problem is that the majority of plaintiffs, although requesting the assistance of the parliamentary commissioner, would not like to be in conflict with employers which do not employ them, so they refuse to cooperate in proving the case of employment discrimination which may have taken place.

In connection with this group of cases, it is useful to note that in the majority of cases, as a first priority, we tend to try to provide assistance to those who contact us rather than investigate details, so as we can better help clients to obtain a job corresponding to their qualifications and state of health, and hence receive a regular income as soon as possible.  Practically, this involves contacting the responsible official of the nearest labour centre to where the plaintiff lives or where he/she is registered, and subsequently provide information to our client about appropriate work opportunities.
 
 

II.

The relationship between local governments and minority self-governments, and problems of cooperation

1. Peculiarities and general features of the minority self-government system

In 1994 the ARNEM created the system of minority self-governments in order to provide minorities with cultural autonomy through a legal framework.  People thereafter had the opportunity to elect minority representatives.  On the basis of the approximately three-year term of minority self-governments thus established, strengths and weaknesses of this peculiar self-government system are by now apparent.

Complaints received by the parliamentary commissioner for minority rights clearly indicate that in the majority of cases complaints were filed because in the local government to local minority self-government relationship and central public administrative authorities to national minority self-government relationship the former did not always apply provisions of legal regulations properly.

The experience of our case-processing work leads us to conclude that the system has inherent flaws which cannot be eliminated in the course of administration of law.  One of the sources of problems is that minority self-governments do not independently exercise regulatory and administrative powers in the traditional sense, instead they carry out their duties specified by law while integrated in an existing public law system.

The act on legislation makes it the legislator’s duty to permanently review the effectiveness of, and, if necessary, to amend legal regulations in order to eliminate anomalies identified during the course of administration of law.

We do not dispute the government’s responsibility for legislation, but the parliamentary commissioner for minority rights regards it as one of his essential duties to monitor the effectiveness of legal regulations affecting minority rights.  Similarly, the parliamentary commissioner cannot be indifferent to major trends in the modification of fundamental legal regulations used as the basis of administration of law.

In 1997, we paid particular attention to the identification of deficiencies of the minority self-government system, and we reached the conclusion that the ARNEM should be amended.  It is expedient to perform the relevant legislative work considering the fact that there will be minority self-government elections in autumn 1998, and it would be highly desirable for the minority self-governments which are elected to be able to start their operation with a reformed and updated legal regulation system.  In our opinion, the general anti-discriminatory provision set out in Article 70/A of the Constitution also formulates the obligation for the state to provide equality of rights for individuals belonging to various minorities.  In practice, this means that the state must protect minority communities, provide for their collective participation in public life, as well as for the protection of their culture, use of mother tongue, education in the mother tongue and the right to use names in the mother tongue.

The ARNEM, pursuant to the provision contained in the Constitution, established licences for positive discrimination for minority communities and citizens of minorities, and it also provides a theoretical opportunity for the parliamentary representation of minorities.
 

2. Special problems related to national minority self-governments

In the period since their formation, national minority self-governments have been integrated into the legal system to a greater or lesser extent although irregularities are detectable in how they are run, in some cases due to an erroneous administration of law or flaws in the provisions of legal regulations.  Generally speaking, the conclusions of last year’s report of the parliamentary commissioner for minority rights are valid for the current period as well, with the difference that both municipalities and authorities they cooperate with have learned to exercise the methods of making decisions jointly, which effectively represents the essence of cultural autonomy.  Thus, we can say, there has been a positive change in this respect.

The operation of national minority self-governments may be basically divided into two parts:  making decisions within the framework of their autonomy and taking part in general sectoral management.

In the case of exercising powers or putting into practice the outcomes of joint decisions and expressing opinions, there are occasional anomalies as some officials of public administration are not familiar with the nature of right of agreement, which is the sine qua non of cultural autonomy.  On the other hand, by setting tight or virtually impossible deadlines, such public officials thwart the right of expressing opinion by minorities with respect to some issues.

The chairperson of the National Armenian Minority self-government filed a complaint with the parliamentary commissioner for minority rights, stating his dissatisfaction that although the Ministry of the Interior had sent their organisation the draft government proposal on their powers and duties and the powers of local governments, as well as the Ministry of Finance had sent them sections of the bill on the amendment to the Act on the 1996 Budget of the Republic of Hungary applicable to minorities and had requested a formal response, according to the chairperson both Ministries had set such a short deadline that the National Armenian Government was unable to formulate a position on the merits in connection with either draft.

During the investigation of the case, it became clear that drafts were submitted late to all national minority self-governments. We put the case to the Minister of the Interior and the Minister of Finance who admitted their responsibility for the above, and stated that there would be no such anomaly in future.

The chairperson of the National Serbian Municipality approached us to express his/her disapproval of the fact that they had received the draft bill on the protection of cultural possessions and had been asked for an official response when subsequently they discovered the government had already decided about the final bill and the National Assembly had started the general debate of the proposal.

To investigate the case we contacted all national minority self-governments, whose representatives unanimously informed us that the Ministry of Culture and Education had indeed submitted the bill to them and sought responses after the final bill had been decided on.

A similar situation emerged in the case of the bill on non-profit organisations which was passed by Parliament. National minority self-governments learned through the media that the bill was already on the floor of Parliament.  According to the national minority self-governments, the act affects minorities in several ways, and hence minority interests should have been represented in it.  According to information received from the national minority self-governments, they did not receive the bill at all nor were asked at any time for their opinion on the issue.

We took the matter to the Minister of Culture and Education and asked him to come up with reasons for the omission.  In his response, the Minister of Culture and Education acknowledged the anomaly.  He named the government officials who are responsible for the omission and warned them that no such omissions should take place in future.  Furthermore, the Minister took steps in the form of a circular that all employees of the Ministry should provide in the course of their work for the future enforcement of rights of national and ethnic minorities as set forth in law.

We cannot take a position with respect to the legality of decisions of the national minority self-governments made in their own scope of authority.  This is due to one of the deficiencies of the legal regulation as it fails to provide for the legal supervision of national minority self-governments.  Thus we can say that currently these organisations are operating without legal control, or rather under the effect of regulations of control applicable to legal persons.

National minority self-governments receive a property subsidy from the central budget to cover their operating and maintenance costs.  Yet it appears that some governments are unable to fund their operating costs, therefore sooner or later it will be necessary to modify the funding system and make it more flexible.  In the long run, the system of funding organisations could potentially be replaced by a form of activity-funding.
 

3. Experiences with local minority self-governments

In the case of local minority self-governments, two organisations based on collective rights, local governments and minority self-governments are connected.
 
 

3.1 Material conditions for the operation of minority self-governments

The provision of conditions required for the operation of the board and office of local minority self-governments, as well as for the fulfilment of their duties is the obligation as stipulated in law of local governments.  Given that in general local minority self-governments exercise their scope of duties and powers as a division of a similar scope of duties and powers of local governments, or through participation in it, a relative independence from local governments must be provided. In practice, this independence is frequently inhibited by the need for cooperation, therefore many minority self-governments have also attempted to make their official operation independent.

After the elections the most important duty was to accommodate minority self-governments. Minorities were dependent on local governments in finding a solution to this problem.  Despite such assistance, we can establish that even today only a relatively small proportion of minority self-governments have their own office where they can have their meetings, consulting hours, and where they can perform their work continuously without being disturbed.

The overwhelming majority of minority self-governments are still located in the building of the mayor’s office of the local government.  Although at least their continuous operation is thus provided for, it creates problems. Schedules for usage must be harmonised with the municipality, in short the meetings and consulting hours of these minority self-governments are subject to there being any vacant room for such purposes.

Unfortunately even the above minority self-governments remain far better off than those which operate in the private room of a restaurant or in the village library.

Evidently, the mayor’s offices of areas with a small number of residents and poor local infrastructure had extreme difficulties in accommodating minority self-governments, as in some cases the minority self-government had to be accommodated in areas where there was no other public institution outside the mayor’s office, or the infrastructure consisted of a single operating emergency telephone.

The provision of office equipment and furniture of minority offices (e.g., typewriters, telephones, faxes, etc.) was also the responsibility of local governments.  Hence, the standard of technical infrastructure greatly varied depending on the financial possibilities of the mayor’s office in question.  This difference in facilities was not aided by the fact that local governments could subsequently claim a refund of these expenses from the central budget.
 
 

3.2 Termination of minority self-governments

After the elections of 1994 and 1995, altogether 69 minority self-governments were wound up, of which 63 were Roma governments.  The termination of minority self-governments was usually brought about by the resignation of representatives, which resulted in the governments no longer being operative.  There were also cases when the board dissolved itself.

Studying the reasons for the termination of minority self-governments, we find that in all cases there was some kind of personal conflict in the background. The root of this seemed to be a lack of trust which developed on one hand between government members and those represented by them, and on the other hand between the head official and other representatives.
 
 
 
 
 
 

III.

Specific problems related to minority institutions with respect to the enforcement of rights providing minority cultural autonomy

1. Characteristic problems of national and ethnic minority education
 
 

1.1 General features

It is clear from the experience of the past two years that the content and quality of minority education is of crucial importance to members of national and ethnic minorities in Hungary.  This is supported by complaints received by the parliamentary commissioner for national and ethnic minority rights, in which teachers, parents and minority self-government representatives gave evidence of anomalies inherent in minority education, and requested that solutions to these flaws be sought.  Most complaints find injurious the omission or legal violation of local minorities, but we were also warned on many occasions of the weakness or absence of legal regulations.

The Hungarian public education system is undergoing basic reform.  Act LXXIX of 1993 on Public Education (hereinafter: ”PE Act”) became effective as from 1 September, 1996, and the National Standard Curriculum will be phased in as of 1 September, 1998.  Minority education constitutes an integral part of the Hungarian education system, therefore it is of considerable importance to members of national and ethnic minorities what this education system will be like as it will determine the education of their children for decades to come. We consider the educational system reform timely and necessary, and agree with its objectives.  However, in this initial phase of reform, deficiencies of legislation and administration of law have emerged which we hope can still be remedied.  For this purpose, ex officio, we conducted a nationwide comprehensive inquiry in order to identify irregularities in legislation and the administration of law in the field of minority education.  We will present typical problems in minority education as reflected by the following few complaints.
 
 

1.2 Kindergarten

Numerous surveys have shown that a high percentage of children of the Roma minority do not take part in kindergarten education; 11% of Roma children do not go to kindergarten even after the age of five.  This must have a bearing upon the school failure of Roma pupils.  In our view, surveys should be conducted to expose the reason why Roma parents do not send their children to kindergarten, and based on such surveys, educational administration must elaborate incentives and communication strategies to change the current situation.
 
 

1.3 School education

In the field of national and ethnic minority education, we have found irregularities both in legislation and of administration of law.
The headmaster of one of the minority education institutions in Budapest addressed a complaint to the minority commissioner, complaining about the draft of guidelines on the school education of national and ethnic minorities.  According to the draft guidelines, the minority language teaching programme indicates Hungarian as the language of teaching and the minority language is to be taught from the first year as a school subject, as a modern foreign language.  The headmaster was concerned that because of this provision minority pupils and their parents must choose whether they want to learn the mother tongue or some language spoken worldwide.  Social expectations oblige them to opt for any of the languages spoken worldwide rather than the minority language.  However, in the long run this may lead to the total loss of minority languages, in other words this measure indirectly advances the assimilation of minorities.

The headmaster also criticised the fact that the draft guidelines included a provision saying that ”if at least eight pupils of the same year take part in the minority pedagogical programme, it must be organised in the framework of the educational lesson schedule and in classes.”

In our opinion the draft guidelines interpreted in a narrower sense the provision of the ARNEM which states that in case the parents or legal representatives of eight pupils of the same minority so request, a minority class or pupils’ group must be launched, and its operation is compulsory.  The ARNEM does not stipulate that pupils must be of the same year.

According to the Act on Public Education, the Minister of Culture and Education issues the guidelines for the school education of national and ethnic minorities.  According to the Act on Legislation, a lesser legal regulation cannot conflict with a higher ranking legal regulation.  In our view, the issuance of the guidelines in their present form violates the Act on Legislation, infringes self-administration rights of national and ethnic minorities, as well as provisions of the Act on Public Education.  Given the above, we requested the Minister of Culture and Education to become involved in the case.

As we found that the irregularity relating to minority rights caused by the conflict between the higher and lesser legal regulations, may be terminated within the Minister of Culture and Education’s scope of authority, the minority commissioner recommended that the Minister make arrangements to remedy the anomaly.

In his response, the Minister advised the minority commissioner that the Ministry had rejected the draft guidelines as they were found inappropriate both from a legal and an educational aspect, and hence our concerns had been taken into account.

The headmaster of a primary school in Pécs filed a complaint with the minority commissioner, claiming that the Pécs municipality intended to close the school with legal succession within the framework of its school rationalisation programme.  In the school, mostly mentally disabled Roma pupils study through an eight-year term.

According to the proposal, the municipality intended to authorise the operation of primary school classes of 1-4 years only, which would threaten the teaching of mentally disabled children as the school building had been specifically designed for them.  There was so little time left until the meeting of the board of representatives that we deemed it necessary to directly contact the Mayor of Pécs by telephone.  The meeting of the board of representatives was scheduled for the same evening.  We requested the Mayor to intercede on behalf of the school, and succeed at least in securing the operation of classes 1 through 8, even if the independence of the school could not be preserved.  The Mayor presented our proposal to the general meeting, which decided accordingly so that the school continues to operate in eight years.
 
 

1.4 Special curriculum for Roma pupils to assist them in catching up

With respect to the special curriculum for Roma pupils, we deem it of utmost importance that Roma parents should be much more involved in educational decisions affecting their children.  All the more so as no Roma special curriculum can be organised without the parents’ knowledge and consent.  The practice so far has been ambivalent. We have received complaints which implied that Roma pupils had been involved in a special Roma curriculum without the parents being aware of it, and that the local government had applied for supplementary national and ethnic subsidies using data detailing pupils’ origins.

The chairperson of the Roma minority self-government of a provincial town complained that the contents of data sheets employed for the special curriculum had been used by the local government for the covert registration of individuals of the Roma minority residing in the town.

We contacted the commissioner for data protection to find out his opinion regarding the filling out of data sheets employed for the special Roma curriculum.  According to the position taken by the commissioner for data protection, the data sheet including a question regarding the pupil’s origin may only be used if the programme promotes the decrease of handicaps of the Roma minority and is in compliance with provisions of guidelines of national and ethnic minority education.  According to the ARNEM, it is the exclusive and inalienable right of the individual to admit and declare belonging to a national or ethnic group or minority.  No individual may be forced to make a declaration with respect to the issue of belonging to a minority group.  Considering the aforementioned provision, data sheets may be completed only on a voluntary basis.

According to the Act on the Protection of Personal Data and the Publicity of Data of Public Interest, data regarding national or ethnic affiliations qualify as special data.  The person concerned or her legal representative must be informed of the voluntary nature, purpose and method of handling of the data.  Therefore, the special Roma curriculum must be prepared in full compliance with the above provisions of legal regulations.  In our opinion, this essentially requires complete dialogue and cooperation between parents and teachers.

The form of segregation of Roma pupils within the educational system by channelling them to special schools or classes organised for mildly mentally disabled children is a way also practised in other countries of Central Europe.  Estimates are that half the children studying in such institutions are of Roma origin, in other words a level of 6-7 times that of non-Roma children in the whole of the public educational system.  Despite the fact that rules of redirecting to special institutions have been several times tightened, these schools continue to operate as mass ”depots” of Roma pupils.  The enormous number of Roma pupils in these types of institution which offer no opportunity for further studies or jobs is not a sign of the intellectual inaptitude of Roma pupils, but rather of discrimination employed against them and teachers’ failure in ordinary institutions of public education.  In 1998, we intend to conduct a nationwide comprehensive survey to highlight the discrimination of Roma pupils in special schools.
 
 

1.5 Funding

The most significant change in the funding of minority education is that the amendment of 1996 to the Act on Public Education defined the supplementary standard subsidy for national minorities as ”not to be used for any other purpose”.  This provision had to be employed by local governments when calculating their 1997 budget.

As early as in the first quarter of 1997, we already received complaints concerning some local governments which voted for minority institutions to receive an amount reduced by the supplementary standard subsidy, claiming that the planned objective could be performed even without the subsidy.  Another problem is that the amount of supplementary subsidy for national minorities is not indicated separately in the budget of minority institutions, so the directors of institutions cannot know exactly how much money they can spend on minority education.  This happened in the case of a minority school in Baranya County.

The minority commissioner chaired talks between the school board and representatives of the local government, which were also attended by the chairperson of the minority self-government.  The affected parties accepted the position of the minority ombudsman and they also emphasised that an effective solution to the situation can be achieved by making legal regulations unambiguous.
 
 

1.6 Textbook supply

Poor supply of textbooks is a common problem in minority education.  National minority education can be integrated into a reformed public education system only if textbooks and educational equipment which meet the standards and objectives of the National Standard Curriculum, pedagogical programmes of national minorities and national minority education become available.

There was a national minority school which did not receive any minority textbooks at the start of the academic year 1997-98.  At professional forums representatives of publishers and teachers called the current system of textbook supply and support intolerable.  In many schools the teachers translate textbooks on behest of the school, elsewhere teachers are obliged to use imported textbooks which are not compatible with the National Standard Curriculum or which are out of date.  Teachers’ programmes and local curricula cannot be effectively completed or implemented without adequate textbooks and educational equipment.

The problem is even worse in the case of national minority education.  In order to remedy this, the Ministry of Culture and Education must act urgently.  We have drafted our relevant initiative.
 
 

1.7 Teacher training, continued training

The future of national minority education is closely connected with the improvement of national minority teacher training.  National minority education will be able to meet new challenges and increasing demand if there is a sufficient number of national minority teachers available holding adequate qualifications.  The system of continued training of national minority teachers is also undergoing reform.  In 1998, our wide-ranging survey will be continued by investigating the status of national minority higher education and the system of continued training.  The standard of national minority education may be guaranteed in the long run only if higher education is prepared to fulfil this task.

We would like to focus on a few important considerations to do with minority education.  Our experience is that most complaints are made because the actors in minority education, i.e. teachers, pupils, parents, representatives of local governments and minority self-governments, have very little information on the way in which local education should be organised in future and of their own role within this.

We are convinced that a ”change of regime” within public education can prove successful only if those involved are fully aware of their rights, obligations and opportunities.  This, however, requires more than a knowledge of the mass of legal regulations concerning public education.  As it is commonly known, minority educational institutions are operated by the joint management of local governments and local minority self-governments.  They can reasonably and legitimately expect to receive assistance in doing their work.  According to the Act on Public Education, the nationwide organisation of pedagogical and professional services to support minority education must be provided as a matter of urgency.  Such an institutional system has not yet been set up, and as a consequence, teachers and local representatives feel that they have been abandoned.  Although it seems that the Ministry of Culture and Education is unable to cope with the task to transmit the information required for the enforcement of the law on its own, it cannot be allowed to shift its responsibility to any other organisation.

In stable democratic systems, it is required by the rule of law for the legislation of major legal regulations that sufficient time be allowed to prepare for the administration of the new legislation prior to its effective date.  In the transitional period, we are resigned to the fact that the time allowed for preparation for administrators of law is in many cases too short.  We can only accept this situation if during this short period of time there is a swift and effective flow of information, training programmes are organised, and government agencies use a wide range of communication channels to provide administrators of law with adequate factual information.

Our recommendations which were put together in order to tackle perceived anomalies and shortcomings in minority education have been accepted by the government agencies concerned which have promised to formulate and implement such programmes.
 
 

2. Problems related to minority cultural institutions
 
 

2.1 General features

One of the most important legal entitlements of minorities in Hungary is cultural and educational self-administration as regulated in the ARNEM, in other words the implementation and operation of cultural autonomy.

Sections (1) and (2) of Article 49 of the Act provides that ”minority organisations may perform cultural and educational activities, set up institutions for this purpose, within the framework of legal regulations, and these institutions may maintain international relations.  The national minority self-government is entitled to establish and maintain a minority theatre, exhibition space in museums, public art collections that draw on a national lore, libraries, publishers, national cultural, art as well as scientific institutions.  To carry out these activities, it may apply for state subsidies.”  According to the Minority Act, local minority self-governments may establish and maintain institutions within their own scope of authority, within the limits of available resources, particularly in the fields of local education, printed and electronic media, cultural education and fostering of traditions in general.
 
 

2.2 Opportunities for the operation by minority self-governments of cultural educational and educational institutions, and related problems

There is no information available to us as to whether national minority self-governments or local minority self-governments have founded libraries or cultural educational institutions, but we know that they intend to take over the operation of libraries and other cultural educational institutions maintained by local or counties municipalities.

This is supported for example by the joint petition of the Chairperson of the General Meeting of Tolna County Municipality and the Chairperson of the National Government of Germans in Hungary, filed with the parliamentary commissioner for minority rights.  In the petition, they requested that the ombudsman take a position and make proposals regarding legal methods which would allow the national German minority self-government to take over the maintenance of the theatre from the county municipality.  As it is clear from the petition, the general meeting and the minority self-government had made an agreement regarding the take-over, but the transfer of rights of operation of the institution raises several legal and funding problems.  It is important to settle the issue, because there are plans to take over several national minority educational institutions, in addition to the theatre.

The above-mentioned provision of the ARNEM allows all minority self-governments to found and maintain an institution, but the task of funding is then passed onto these minority self-governments.  Apart from the above, the ARNEM does not contain any special rule for the transfer and take-over of already existing, operational institutions.

An obvious solution would seem to be that the state subsidy provided for the operation of the theatre, as well as any other educational or cultural educational institutions, should be granted to the organisation actually maintaining that institution.  This could be defined as a basic rule in the act on the annual budget adopted by Parliament.

Considering the fact that an amendment to the Budget Act is rather onerous and time-consuming, an alternative to this solution has been offered, notably the setting up of a public foundation.  Tolna County Municipality could set up a public foundation to the debit of the budgetary allowance to be used to maintain the theatre, so that the public foundation would indicate the National Government of Germans in Hungary as the managing organisation.

A further alternative is the setting up of an institution-managing partnership.  In this case, the general meeting of the county and the national minority self-government could conclude a deed of partnership for the operation and maintenance of the German Theatre.

With respect to the above theoretical opportunities, it cannot be disregarded that employees of the German Theatre in Szekszárd are currently public servants, and if the county municipality transfers rights of maintenance of the theatre to any party other than a local government or government agency, the employment of public servants will have to be terminated.  Naturally, employees of the theatre would continue to perform the same work, but under an employment of labour law which could be evidently disadvantageous for them.

To summarise the above, our position is that the cultural autonomy of national and ethnic minorities in Hungary may be achieved if legitimate organisations of minorities themselves maintain cultural institutions, and decide themselves on issues within the domain of minority culture.  Being familiar with the financial status of minority self-governments, few would want to use the right of founding institutions, take-over would be a much more realistic solution.  Minority self-governments may use their entitlements provided for in legal regulations only if the status of institutions thus taken over does not become worse by the budgetary and labour law implications of such a take-over.

Therefore, prior to the legislation of legal regulations applicable to cultural education, the opinion of national minority self-governments must be sought.
 
 
 
 

IV.

Legislation and administration of law affecting minorities

1. Brief presentation of legal regulations used as a basis for the investigative work of the parliamentary commissioner for minority rights
 
 

1.1 Control of administration of law

At the time the institution of ombudsman was set up in Hungary, the most commonly-heard objection was that positions taken by parliamentary commissioners, which are not legally binding, would not be able to have an accountable or ultimately positive effect on the operation of public administration.  Today, this objection can be clearly rejected, as it has been proven that a flawed system of law and order may be reformed and the principle of equity may be enforced even under domestic conditions through mere persuasion, transmission of values and related legal arguments.  What is more, efforts made to achieve justice which does not necessarily coincide with lawfulness may be more efficiently applied by using such tools than by legal obligation.  Although our initiatives and recommendations formulated in response to decisions of authorities which infringed rights or interests, or which carried the risk of such infringement, cannot be legally forced, in the overwhelming majority of cases, authorities concerned do not refuse to take measures we propose.
 
 

1.2 The relationship between the minority commissioner and legislation

The primary duty of parliamentary commissioners is to control agencies of the executive power, and it includes the examination of individual decisions.  In addition to this basic role, the Act on Parliamentary Commissioners allows us in case of individual irregularity to probe legal regulations used as the basis of a procedure.  Thus we have access to a wide range of legal remedies.  Apart from monitoring the process of the administration of law, we can also act in the interest of protecting people’s rights even if the anomaly may be attributed to the unnecessary and unclear provision of a legal regulation (or any other tool of state control), or basic deficiencies of legal regulation.  In order to prevent the anomaly in future, we can propose to the agency authorised for legislation or for the issuance of any other legal tool of state control the amendment, repeal or issuance of the legal regulation (or any other tool of state control).

Influencing legislation is the strongest and most controversial entitlement of parliamentary commissioners.  The control of administration of law is clearly attached to the executive power, whereas the latter affects the scope of authority of legislation.  This special situation raises a few problems which must be mentioned here.

Legislative organs are responsible not only professionally but also politically for issued legal regulations.  Their view is necessarily more complex as they have to take into account not only the regulation of a specific issue but also other areas affected by it.  Accordingly, we can get involved in the legislative process only if we observe the following two principles.  On one hand, as an institution independent from all political forces, we cannot take over the legislator’s scope of authority, and we cannot take part in the legislator’s responsibility.  On the other hand, our activities aiming at legal improvement may be connected to the remedy of a situation inducing a constitutional anomaly exposed in the course of our procedure.

In the course of our procedures we intend to fully meet these requirements.  The regulation of the system of minority rights is a core part of the legal background of general human rights, therefore we frequently encounter cases where the irregular situation can be attributed to flaws of the legal system.  The special nature of this legal area is also manifest in that elements of a system of closely-related legal regulations may be modified only with great prudence. For the purposes of consistency and coherence, we make legislative proposals only if we deem endowing an existing or potentially obsolete practice of legal interpretation with new content (i.e. application of the existing legal regulation with a minority-friendly approach) to have proved ineffectual.

We have found that the solution to the problem outlined above is to accelerate the legislative process by exercising pressure from outside, and to be included in the governmental chain preparing legal regulations by giving our opinion on bills.  Although the Act on Parliamentary Commissioners does not specifically mention the right to provide opinion on bills, in our view it does authorise us, if only in an indirect manner.  An irregularity at the root of our procedure may be caused by the risk of infringing rights or interests, therefore we consider it much more justified to formulate our comments in connection with bills which may if implemented carry such risks rather than to criticise legal regulations which have already been implemented.
 
 

2. A brief survey of some major legal regulations affecting minority rights

Legal regulations described in this report have a particularly crucial importance from the aspect of the protection, and survival of minority identity.  They foster the protection of important guarantees for the survival of minority existence, preserving language and traditions.
 
 

2.1 European Chart of Regional and Minority Languages

It is a regrettable fact that the process of handing down minority languages in Hungary has broken perhaps as a result of the flawed minority policy of the past decades.  Entire generations have grown up learning only the language of the majority society.  In the past few years, the large-scale loss of language has slowed down, and there is increasing demand from younger generations to learn the mother tongue.

All this taken into account, this year, one of the most significant change in legal regulations, the European Charter for Regional and Minority Languages becomes effective as of 1 March, 1998.  Although the document deals with only one component of minority rights, notably the right to language use, it may fundamentally bolster the development trend in minority protection.

Hungary signed the Charter on 5 September, 1992, together with ten other states, but the convention was ratified by the National Assembly only in 1995.  By joining the Charter, Hungary agreed to comply with the obligation undertaken through domestic norms of legal execution.  Legislative organs are also obliged to follow suit through provisions of the Constitution.  For it is a constitutional principle that domestic law must be harmonised with international conventions.

The Charter was created after it was recognised that most regional and minority languages in Europe had become threatened as a result of assimilatory efforts or indifference of the state, as well as the standardising pressure exercised by modern civilisation.  The governing idea of the convention is to protect such languages in the spirit of multilingualism and multiculturalism.

In Hungary, pursuant to the ARNEM, minority languages are the following:  Bulgarian, Roma (Romani and Bayásilor), Greek, Croatian, Polish, German, Armenian, Romanian, Ruthenian, Serbian, Slovak, Slovenian and Ukrainian.  Hungary agreed to take specific measures of institutional nature with respect to the Croatian, German, Romanian, Serbian, Slovak, and Slovenian languages.  This limitation does not conflict with the spirit of the convention, as the bulk of provisions of Chapter III. originally only apply to areas inhabited by a number of individuals using a minority language which justifies such measures to be taken.

The Charter itself does not contain any obligation, rather it stipulates that all signatory states must undertake to apply at least 35 sections or subsections of provisions of Part III. of the convention.  Each of these should include three in the scope of education and culture, and one in the administration of justice, public administrative authorities and mass media, as well as in the domain of economy and social life.

Hungary has complied with provisions in both the number and nature of undertaking.  The catalogue thus created is in accordance with provisions of the ARNEM, as well as other legal regulations about minority rights.

As the convention became effective at the time this report was written, it would be too early to evaluate its anticipated effect.  However, it certainly supports such objectives (particularly in the fields of education and language use in public administration) which may be fulfilled only with the state undertaking an increased role.
 
 

2.2 Frame Convention on the Protection of National Minorities

An efficient international institutional system providing for the protection of human rights has long been established.  The creation of an international mechanism for the protection of minorities is currently in progress.  The existence of such a mechanism would recognise that even if human rights are fully provided and free from discrimination, this does not necessarily mean a sufficient guarantee for minorities.  Close to the turn of the millennium, national and ethnic conflicts emerge in such a complex manner, that the creation of a separate minority control mechanism has become necessary, the primary duty of which is to provide minority rights.

The Framework Convention of the Council of Europe on the Protection of National Minorities was adopted on 10 November, 1994, and it took effect on 1 February, 1998.  Hungary’s representatives were among those who took part in the work of the intergovernmental expert committee which elaborated the document.

At the heart of the Framework Convention lies the idea that the protection of minorities cannot be restricted to the codification of some rights but it must rather be directed at the creation of the most complete legal catalogue possible.  Its significance lies in it being the first comprehensive EC document about minority protection which is legally binding;  its purpose is to define legal principles providing for the protection of national minorities.  Compared to the system of the ARNEM, the first substantial difference is that unlike the Hungarian regulation, it does not contain any definition of minorities.  In the course of the codification process, no concept could be defined which was unanimously acceptable to all the states, therefore, for practical reasons, the states omitted it in order to advocate admission in the widest possible range.  Another significant difference is in the nature of rights provided.  While Hungarian law recognises the existence of collective rights of minorities, the Framework Convention is based on the principle of individual rights.

The Framework Convention intends to provide minorities with a wide range of licences. The range of protected rights include, e.g. the right to self-identity, prohibition of discrimination, right to equality of opportunity, right to freedom of conscience and religion, right to electronic media, right to culture and education, right to minority language use, prohibition of intentional changes to population proportions, right to participation of minorities in public life.

Fundamentally, the Framework Convention meets objectives set at the time of its creation.  However, we consider it a deficiency that no control system monitoring efficiency is attached to it, as we believe this to be at least as important as the formulation of rights where minority protection is concerned.  The control mechanism of the Frame Convention merely consists of a periodical reporting obligation.  Signatory parties are required to inform the Ministers’ Committee of the Council of Europe through the Secretary General of important measures affecting the implementation of the Frame Convention.
 
 

2.3 Government Decree No. 1093/97 (VII.29.) on the Package of Medium-Term Measures Regarding the Improvement of Living Conditions of the Roma Population

Although the complex package of measures to improve the equality of opportunity is deemed to be no legal regulation in terms of source of law, we have to mention it in our report as it is unique in Hungarian legal practice.

In the past decade, the decline in the living conditions of most Hungarian Roma has been enormous.  As a result of a restructured labour market, huge numbers of the Roma population have lost their jobs.  Their loss was further exacerbated by the fact that those who became unemployed had in general low qualifications, and thus had little chance to find a new job without employment programmes.  In addition to difficulties arising from its welfare status, the Roma must also fight community prejudices.

The minority commissioner’s office as an independent institution reporting directly to the National Assembly cannot directly shape the government’s minority policy.  The commissioner’s constitutional scope of duties or brief does not include being involved in the elaboration of action plans apart from providing an opinion.  However, we welcome objectives set out in the package of measures, and fundamentally agree with them.  With the goal of implementing them in the most effective way possible, we support efforts to involve Roma organisations, including the national government in the preparation and implementation of programmes.  Naturally, we intend to monitor the practical execution of the package of measures in the course of our work.
 
 

3. Opportunities inherent in legislation, major trends of development

In last year’s parliamentary report, we analysed in detail the status of anti-discrimination law at that point in time and potential directions for development.  We established that effective legal regulations and existing tools for the protection of the Constitution in general did not always provide sufficient guarantee for precluding the discrimination of minorities.

Based on the analysis of legal regulations prohibiting discrimination in the field of employment, we found that legally realistic protection was not available to counter prejudice arising at the establishment of employment, therefore we recommended for consideration, within the framework of anti-discrimination legislation, the Act on the Code of Civil Procedures and the Labour Code to be amended, and the amount of penalty which may be imposed for ”anomalous employment” regulated in Government Decree No. 17/1968 (IV.14.) to be increased.

Among our recommendations this last one has been put in effect, as a new form of breach of rules entered into force on 20 March, 1997, which now penalises any employee discrimination as such.  (According to the new regulation, an employer which unlawfully refuses to employ or discriminates against an employee for reasons of gender, age, nationality, race, etc. or for any other circumstance not related to employment, may be fined a penalty of HUF 50,000.)

Evidently, discrimination against employees cannot be prevented merely by the penalty for breach of rules, yet we regard this provision as a step ahead since it clarifies for employers prohibited forms of conduct, and anticipates more powerful sanctions and graver penalties to be imposed in case of breach of rules, than formerly.

Nevertheless, the creation of a legal regulation designed to decrease the frequency of discriminative forms of conduct does not necessarily mean that it will be automatically enforced in practice.

The new provision will have an actual force only if authorised agencies monitor that it is observed, and consistently take steps against perpetrators.

In order to prevent this legal regulation from becoming a cosmetic declaration, controlling authorities must pay increased attention to infringement of rights, and evidently, also take preventive measures.

On the basis of specific complaints received by the parliamentary commissioner for minority rights, it is natural that we stress the importance of the issue of discrimination.  Following on from 1997, which we declared the year of anti-racism and anti-intolerance, in 1998 we intend to review the status of anti-discriminative legislation and examine the potential for updating legal regulations prohibiting discrimination and amending them in agreement with practical requirements.  That is the reason why we shall regard this year as the year of anti-discrimination.

In this respect, there are two fundamental directions for development of legislation.  First of all, we consider it necessary and feasible that proposals are put together in the course of the preparation of special legal regulations with respect to the different sectors, e.g. education, employment and certain authority matters, and recommendations are formulated and passed on to agencies responsible for legislation, and that all those concerned take part in workshops where legal regulations are prepared to create various guarantees for minority protection.

Simultaneously with the above, we shall also explore the opportunity of passing a separate, complex anti-discrimination law, and consider questions of form and anticipated contents.

It is our conviction that the general provision prohibiting all forms of negative discrimination, contained in Article 70/A of the Constitution may actually work only if there is an appropriate system of regulations available to explore negative discrimination in various fields of life, to control legal relationships carrying the potential of discrimination, to sanction and compensate for injuries which occurred, and last but not least, to prevent such injuries from taking place in future.
 
 
 
 
 

Statistical processing of cases filed

between 1 January 1997 and 31 December 1997

I.
 

 II. Minorities affected
 

 *One case may affect more than one minorities
 

 III. Regional distribution of complaints filed
 

 *One complaint filed may affect more than one counties.
 

 IV. Authorities affected by complaints or ex officio investigations
 

 One complaint filed may affect more than one offices.
 

 V. Recommendations and initiations in 1997
 

 VI. Bodies affected by recommendations and initiations *
 

 *One complaint filed may affect more than one bodies.
 

 VII. Infringements of minority rights according to the plaintiff
 

 VIII. Measures following inquiries
 

 * We inquired into the case but investigations did not reveal any infringement of minority rights.