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| NATIONAL AND ETHNIC MINORITY RIGHTS PARLIAMENTARY COMMISSIONER'S REPORT 1995 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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NATIONAL AND ETHNIC MINORITY RIGHTS PARLIAMENTARY COMMISSIONER'S REPORT 1995 (extract)
1. Introductory Remarks
1. Article 20, Paragraph 1 of the NEM Rights Law states under specific legal regulation the right of minorities to parliamentary representation. 2. Articles 25-30 of the NEM Rights Law define the tasks and authority of minority settlement and local minority self-governments. 3. Articles 35-39 of the NEM Rights Law define the tasks and authority of national self-governments. 4. Article 38, Paragraph 1/a of the NEM Rights Law empowers national self-governments to opinion proposed legislation in this area with respect to its impact on the minorities they represent. 5. According to Article 63, Paragraphs 4-6 of the NEM Rights Law, national minority self-governments are recipients to a one-time asset acquisition in order to assure operating expenses. 6. According to Article 62, Paragraph 3 of the NEM Rights Law, Government must review the status of minorities living on the territory of the Republic of Hungary at least once every two years and report its findings to Parliament.
1. Inconsistencies in the application of the law in light of individual petitions 2. Characteristics of cases examined based on their nature of rights violation 2.1 Petitions requesting an examination of judicial decisions 2.2 Petitions regarding handling of welfare cases by settlement self-governments 2.3 Petitions complaining about the discriminatory nature of police investigative actions 2.4 Petitions as a result of problems in connection with interpretation and application of the NEM Rights Law and other legal regulations about minorities. 2.5. Other Cases of Discrimination IV. Some conclusions
1. Introductory Remarks According to the 1993 (no. LIX) legislation on the duties of the Ombudsman (Parliamentary Commissioner) for Civil Rights, her/his duties are divided into two categories from a legal standpoint: supervising the creation, and the enforcement of law. This delineation of duties is particularly specific to the Parliamentary Ombudsman on National and Ethnic Minority Rights (henceforth, Ombudsman). The current body of legislation with respect to this area of law is new and under-developed in contemporary practice, unfamiliar to legislators themselves, an aggregate of legislation that requires further development on several conceptual points. For example, the 1993 (no. LXXVII) Law on National and Ethnic Minority Rights (henceforth, NEM Rights) articulates the constitutional law that recognizes minorities as a state-constituent nationality, a factor in the creation of law, with decision-making rights in its enforcement (enactment), and administration (execution). These rights are exercised by means of a network of minority self-governments into which minority groups have been organized; and to the extent that minority self-governments have adapted into the national government system. These rights however, impinge on the decision-making autonomy of national self-government organizations; furthermore, because of the distribution of decision- making powers within areas of law, minority groups play a role in the process of enactment of law. It is necessary therefore, that there be legal provisions, which contain financial and procedural regulations, to govern decision-making proceedings. In addition, it is also necessary that the organization responsible for supervising constitutionality be also vested with authority over decision-making organizations. The above reasons indicate the appropriateness of the Office of the Ombudsman having been established with special attention to these issues. This report is structured to reflect the determining impact of these circumstances.
2. Supervision of the creation of law; inconsistencies within and/or as a direct consequence of the law An analysis of the constitutional provision under which minorities are interpreted as a constituent nationality--that is, the particular articulation of the regulation under the NEM Rights Law which defines natural persons belonging to a minority; their legal position and that of their organizations; the tasks, and authority of these--can lead to the conclusion that the Ombudsman can fulfill his duty--that of supervising individual and collective rights of minorities--only under the condition that he is also mandated to enforce the law and supervise the constitutionality of minority rights legislation under consideration. Mindful of the above concerns, the Ombudsman established the Department of Codification and Coordination, whose task is to supervise issues of constitutionality. Beyond this area, the Ombudsman considers the expressed supervision of the enactment and enforcement of certain legislation necessary. For this reason, he authorized a thematic investigation of specific areas such as, minority media, education, as well as the relationship between Romas and the police. In the following, we shall call attention to certain problematic enfranchisements of the NEM Rights Law that based on our experience, have been troublesome. 1. Article 20, Paragraph 1 of the NEM Rights Law states under specific legal regulation the right of minorities to parliamentary representation. The Ombudsman holds that institutional requirements in response to the constituent nationality factor are met in part through the self-government style of representation. However, since beyond this right the NEM Rights Law also guarantees the right of parliamentary representation for minorities, law-makers must also fulfill their obligations in light of this requirement. This responsibility is further reinforced by a Constitutional Court order. The Ombudsman held negotiating discussions on these subjects with representatives of the various parties in Parliament that concluded for the time being with the understanding that in the present course of constitutional development this problem would be solved as well. 2. Articles 25-30 of the NEM Rights Law define the tasks and authority of minority settlement and local minority self-governments. The legal background to this Article is not made satisfactorily clear. When modification of the NEM Rights Law comes into view, it would be well advised to ponder how the constitutional legal position of local minority self-governments and their concomitant functions can be effectuated. For example, in handling a minority issue as a local problem at the local level by a minority self-government, it would be necessary for such to be authorized to act in areas that have heretofore been under the jurisdiction of settlement self-governments; such action would also require the development of the legal status of minority self-governments--which would be of course, to the detriment of settlement self-governments. It would be a worthy solution to the aforementioned problem if the constitutional status of minority self-governments, and within this framework the demarcation of their tasks and authority vis-à-vis settlement self-governments, were first clarified and articulated conceptually, and subsequently modified through legal provisions. 3. Articles 35-39 of the NEM Rights Law define the tasks and authority of national self-governments. Fundamentally, similar to local minority self-governments, the tasks and authority of national self-governments are not made sufficiently clear as to their constitutionally legal status. For example, they are not mandated autonomous power to generate decision-making on the national level. Outside their own organizations, they have no regulatory or administrative legal influence that would empower them with the possibility to formulate concrete legislation that affects their status. 4. Article 38, Paragraph 1/a of the NEM Rights Law empowers national self-governments to opinion proposed legislation in this area with respect to its impact on the minorities they represent. This Article of the NEM Rights Law, in conjunction with the provisions that govern the right to submit an opinion as stated in the law on creating legislation, unequivocally obligates the law-maker to involve national minority self-governments in the preparation of legal provisions. Since the Ombudsman's taking of office, Government, has singularly violated both provisions of law in three cases . 5. According to Article 63, Paragraphs 4-6 of the NEM Rights Law, national minority self-governments are recipients to a one-time asset acquisition in order to assure operating expenses. Despite the fact that discussions are in progress in this matter, as of the time of this report the national self-governments have not partaken of this one-time acquisition. Mindful of the fact that the operational prerequisites of national self-governments can be stated as entirely unresolved for lack of guarantees for their budgetary needs, and compounded by the value of assets held in securities having changed since the regulation went into effect, the Ombudsman considers the urgent transfer of assets in a satisfying manner for all concerned indispensable. 6. According to Article 62, Paragraph 3 of the NEM Rights Law, Government must review the status of minorities living on the territory of the Republic of Hungary at least once every two years and report its findings to Parliament. Based on the NEM Rights Law's provision to submit a report on this matter, Government, despite the fact that preparations are underway, has not fulfilled its obligation by the deadline set for the Parliamentary Ombudsman's report . In the context of the NEM Rights Law, the settlement self-government office, on request, assures the operational requirements of local minority self-government bodies and provides for the functions associated with this undertaking. Cogent among these tasks is the use of premises appropriate to the functions and operations of minority self-government bodies, providing for postal deliveries, typing and duplication needs, and including responsibility for the financing of such. Supporting the general operational expenses of local minority self-governments, despite the financial or in-kind support of settlement self-governments, does not however, provide sufficiently for the effective functioning of minority self-governments. The system of financing minority self-governments, on both the local and national level, is entirely unresolved. There is no sign of an outline for an adequate system of financing developing on the horizon. Meeting for the operational prerequisites of national self-governments essentially follows the old system of nationality based alliances. Direct, centrally funded support of local self-governments is in fact more symbolic; their local resources are absolutely happenstance, fluctuating between support of several million forints to complete lack of funding. The issue of honoraria is disputed. Due to unclear articulation of the provisions, it is impossible to determine unequivocally whether a minority self-government commits a violation of law if it does not determine and does not pay an honorarium to its president, or if it established and paid one. The issue of recalling the president of a minority self-government from office has come up on several occasions. Through use of the analogue for the law on local self-governments, an interpretation of law can evolve wherein officials of local minority self-governments cannot be recalled from office. It is the Ombudsman's judgment that legal regulation of this issue is also indispensable. In accordance with Article 29, Paragraph 2 of the NEM Rights Law, with respect to the right of consent on the appointment of directors to minority institutions, several proposals were received. Questions around the right of accord developed because within the context and application of the law, which institutions may be regarded as minority institutions was undefined. Included among the proposals submitted were educational institutions that provide minority language instruction, adhere to a minority rights curriculum using such textbooks. These institutions are not supported by minority self-governments and also provide other educational forms. With respect to these facts, the Town Clerks of settlement self-governments dispute minority self-governments' right of accord. 1. Inconsistencies in the application of the law in light of individual petitions General Indications One of the most important areas of the Ombudsman's activities is the examination of inconsistencies and violations of law in minority rights cases, based on individual petitions or through official procedures. Since the NEM Rights Law recognizes the rights of minorities on individual and collective levels, the Ombudsman takes action accordingly in these two areas. He examines complaints of violation of minority rights submitted to him from citizens, or received through official channels; in the case of collective rights violation, he takes appropriate corrective steps. In order to implement this function, the Ombudsman established the Supervisory and Operative Department. In the four short months that have elapsed since the Office was established in 1995, complaints submitted to the Ombudsman were in part from individuals, that is, traceable to national or ethnic rights violations, and in another part as a result of start-up difficulties in the minority self-government system based on interpretation or creation of the law. In order to successfully resolve these cases, the Department may select any number of investigative tools and methods based on the specific legal circumstance indicated, and guaranteed under the law governing the Parliamentary Commissioner. The goal is to find the most expedient, goal-oriented, bureaucratically devoid and favorable solution for the client. The Ombudsman is granted resolute investigative powers. He has the right to investigate any authority, request information, explanation, opinion or documents in connection with any investigation under his aegis in current progress, or because of its disregard. He may request a hearing from those concerned, ask for the investigation of an organization, or request that its director do so. In the event of a discriminatory finding he may make recommendations for correcting the violation of law, or determine possible culpability. With respect to the content of submitted petitions from citizens who as a result of minority status felt exception in conduct by an authority, in numerous cases we contacted ministries, national organizations, police, customs and duty authorities, criminal justice organizations, public prosecutor's offices, municipal and settlement self-governments, mayoral offices, compensation and reparation offices, and public media. Among our investigative procedures are to provide a hearing for claimants, to conduct an examination of the facts by obtaining necessary documents, to inspect premises, if necessary to provide photographic or film documentation, to resolve cases using as expedient a method as possible (telephone/ telefax); or through a written request to the authorities in question, continue documentation of cases, announcing completed cases at press conferences, in publications, as well as through educational lectures. Complementary to our task is the preparation of statistics, lectures, and consultation at the request of local and national minority self-governments, background discussions, cooperation with national and ethnic minority self-governments, civil rights advocacies, settlement self-governments, public administration offices, national organizations and ministries, as well as Parliament's Human Rights, Minority and Religious Committee. As can be seen from the attached statistical data, the Ombudsman received relatively few cases of complaint. during the four months under discussion. This fact can be explained by the newness of the Office of the Parliamentary Ombudsman; that beyond responsibility for the cases submitted, the initial phase of this period was spent in setting up the Office itself, staffing, acquiring equipment, and public awareness activities to promote the Office; furthermore, let us consider that the system of minority self-governments within the Hungarian legal system has in itself a history that is one and a half years old. It is our experience, that citizens belonging to national or ethnic minorities, predominantly Romas, and representatives of local minority self-governments--required to work in cooperation with and in many respects dependent on settlement self-governments--are somewhat reluctant to take formal steps to declare their problems or have them investigated because they are protective of the formalities of existing relationships and fear their turning negative, and/or they are concerned about maintaining certain standards of life. This predicament is further exacerbated by the inconsistencies in legal provisions described earlier, leading to a loss of confidence among minority self-governments. As a result, we are asked for assistance through informal channels (telephone), which represent a significant part of our case activities. One of the most cogent aspects of our work is public awareness so that minorities in ever greater number will come to trust that they live in a constitutional state under the rule of law where their complaints find hearing and recompense. 2. Characteristics of cases examined based on their nature of rights violation By reviewing typically occurring violations of law, we can obtain a perspective of the status of the legal protection of national and ethnic minority rights, as well as through the Ombudsman's initiatives and recommendations, their reception and results. 2.1 Petitions requesting an examination of judicial decisions In every case of this kind, we informed the petitioner in detail about possible legal procedures within the jurisdiction of the Ombudsman, which interpreted under the principle of an independent judiciary, does not mandate complaints about judicial decisions under the Ombudsman's jurisdiction. 2.2 Petitions regarding handling of welfare cases by settlement self-governments During the second half of 1995, a significant number of cases examined were about handling welfare cases by settlement self-governments, submitted mostly by Romas. A certain number of the petitions were submitted at the recommendation of the Ombudsman as a result of his advising petitioners of their legal recourse toward settlement; he conducted activities in education about the law; and in some cases succeeded in obtaining welfare benefits from mayoral offices. 2.3 Petitions complaining about the discriminatory nature of police investigative actions The characteristic nature of documented procedure, discrimination in this case, in connection with Roma minorities/individuals is often in the course of police investigation of individuals belonging to this minority group. In numerous instances, for want of appropriate evidence, our guardians of law enforcement used prohibited means- against Romas--such as threat of physical injury or psychological terror. An objective examination of the facts is an important function of the Ombudsman's Office. Our goal is to discover any atrocities committed against ethnic Romas and beyond this examination, to prevent the possibility of similar incidents occurring by taking action that creates notice. 2.4 Petitions as a result of problems in connection with interpretation and application of the NEM Rights Law and other legal regulations about minorities. Parliament of the Republic of Hungary accepted the NEM Rights Law on July 7, 1993. During the second half of 1994, regulations addressing the rights of minorities were expanded and modified on several points under the law governing local self-governments and the election of local mayors and representatives (henceforth, LSG and ELMR respectively). The regulation addressing the rights of national and ethnic minorities appears in numerous other legal provisions in addition to those mentioned, as for example in the law on public education. Minority self-governments began their activities in 1995. In consequence, the application of the aforementioned legal provisions by minority representatives, otherwise inexperienced in law and public administration, and representatives from settlement self-governments, skilled in legal application, created problems. It is for this reason that an entirely new model of minority self-government came under regulation in Hungarian public administration, with unique tasks and jurisdiction, in many instances vaguely defined. Regulations governing the NEM Rights Law and its application as used in reference to and consistent with other laws, represent insurmountable problems for those affected. At the same time, experience of times past has indicated that the vague articulation of these regulations may in fact lead to the dysfunction of the minority self-government system in the long run. An important task of the Ombudsman's Office is to pinpoint weaknesses in the law based on an assessment of petitions received as well as his informational experience; and to call the attention of appropriate law-makers to these inadequacies in order to correct them. Toward this end, we maintain close communication with the national self-governments, continually asking their opinion; as well as asking to be informed about problems in the implementation of the law and weaknesses in its formulation. Our goal is that the Ombudsman be in a position to make recommendations to law-makers as to how to overcome weaknesses and vague articulations in the law. This role was demonstrated on November 1, 1995 when we called the attention of appropriate ministerial departments to the most salient regulations requiring delineation in the NEM Rights, LSG and ELMR laws, and those on public education with respect to the protection of minorities' rights and interests. We trust that our preventive measures in this regard will find a willing ear on the part of appropriate ministries. 2.5. Other Cases of Discrimination It is rather difficult beyond those cases already outlined, to typically characterize a case from among the petitions received by the Ombudsman's Office during the second half of 1995. Members of national or ethnic minorities, especially Romas, turned to the Ombudsman with a myriad of petitions requesting assistance in remedying a given violation of law traceable to racial discrimination, as well as asking information on various points of law. 1. 2. A harmonization of the law, that is, legal reform of regulations presupposes an unequivocal position on the fundamental issue in question: to what extent is an unambiguous articulation of the constitutionally legal status of the minority self-government system necessary. Without a decision on this issue financial difficulties, which can be stated as serious, are equally unresolvable. It is our opinion that this task cannot be undertaken without the operational preconditions necessary for a coordinated program of preliminary proposals for governmental decisions having been established. This latter however, is in great measure impeded by the under representation of the interest of minorities in governmental spheres. Dr. Jenõ Kaltenbach April 25, 1996, Budapest
Statistics 1. Number of petitions received between September 1, and December 31, 1995 according to national minorities:
*(cases received from the joint cooperation of national minority self-governments, and the Office of Public Administration) Of the cases received by the Ombudsman's Office 63 petitions required concrete investigation. 2. Complaints against an authority or institution ( a singular case may cite several authorities)
Local self-governments in the following categories
3. Results: (73 cases)
4. Grouping of cases based on submission of petitions:
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