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1. The abuse of the discrimination ban
Discrimination in the municipalities' jurisdiction
The cases of direct discrimination
The discriminatory nature of police routines - a debate with the state attorney's office
Open day
A debate with the state attorney's office
Constitutional court initiative 2. The abuse of the collective (municipality) rights The ‘awkwardness' about the right for consensus-expression of opinion
Problems of financing and administration
Use of languages
Media matters Television
Radio The issue of the education of minorities For the first time in Hungarian public law, the new public law institution's - the national assembly commissioner's - most important act, the annual report, is on the agenda of its nominee the National Assembly. The first report - as the eighteen month period which it attempts to characterise - is admittedly seeking to develop its direction. This derives from the fact that we can neither build on traditions, nor obtain guidance from the example of foreign institutions. In addition the operation of this institution is very unique. Unique, because the „ombudsman" while acting in the name of the state, attempts to achieve something for the individual „against" the offices of the government, the public authorities and the public service providers (and only against them). The ombudsman does not have any executive power, but does have an impact on the bureaucracy, which always has a tendency to be isolated from publicity. The ombudsman is not only open, but is also a very important part of the publicity.
The tools of the special ombudsman are a characteristic of it. The basis of his actions is not the violation of law, but the "awkward" situations, by which is meant the immediate danger of a violation of law. The sanctions at its disposal are not a verdict or a penalty, but an initiative, a recommendation, the making of publicity, or a report to the National Assembly.
These tools are not explicit, traditional parts of the Hungarian legal theory and practice. The definition of what constitutes the term "awkward" is not easy as, the system of minority rights, and most importantly its doctrine are undeveloped as compared to general law. Therefore the report deals with the analysis of these legal area regulations in a separate chapter, more in depth than solely dealing with the constitutional ‘awkward' cases, and the consequences stemming from the proposals that I received. This is needed as the state's task is not only to operate the system of constitutional institutions correctly, but also to ensure the development of it. The ombudsman can play a supporting role in this.
Our day to day work suggests to us, that despite democracy and the rule of law, the human rights protection institutions unfortunately have a lot to do. The reason being, that it is not sufficient to establish a democratic system, it is equally important to operate this system in a democratic manner. We have to face new and fresh challenges in this area.
A citizens' legal security has become the most important basic value of the constitutional state. Respect for human dignity is the basis of all human rights and the protection of human rights. Human freedom, equal opportunities and social security are naturally a part of the life humans deserve. But do these concepts refer equally to everyone?
Compared to the historical development of the awareness and acknowledgement of human rights, the human rights protection of minorities lags behind. The result is that the system of protection of rights established for the majority citizens without the establishment of an equal minority protection system preserves the inequalities in society. The ombudsman would appear to be the most suitable vehicle for the establishment of equal opportunities and the handling of minority problems. If it is true in general for the ombudsman, that it lessens the citizen's defencelessness, then it is especially true in the case of the identically defenceless minority citizen.
If it is true that the ombudsman strengthens the belief and the trust of the citizen towards the state, and encourages the feeling that the state's institutions are their own, then it is especially true in a case when the citizen has a different language and culture.
If it is true that the ombudsman's' tool is reason and not power, persuasion and not force, then it is not difficult to understand, that in a majority-minority relationship - where usage of force is always harmful - the ombudsman can play an important role.
As the ombudsman checks the enforcement of law, its' impact is considerable, as the biggest and most typical weaknesses of existing minority law protection systems are the lack of checking mechanisms.
The National Assembly of the Hungarian Republic has declared in the preamble to the national and ethnic minorities' rights, that it regards the national and ethnic rights of self-determination as a part of universal human rights. In addition unique personal and public rights of the national and ethnic minorities are basic civil rights, which the Hungarian Republic respects and enforces in their entirety. None of these rights are the gift of the majority nor the privilege of the minority, their source is not the ratio of the national and ethnic minorities, but the right to be different based on the respect of individual freedom and social peace. At the declaration of the principles of equality, the rationale was the idea of solidarity and the active protection of the minority, the National Assembly taking the accepted universal ethical and legal norms into account, the respect towards minorities, the respect for ethical and historical values, and the representation of the mutual interests of the minorities and the Hungarian nation. A part of individual and public self-determination is the language, way of life and intellectual culture of the national and ethnic group living in the territory of the Hungarian Republic, bearing Hungarian citizenship, with its own historic traditions, and having other unique minority characteristics. All these are special values, preserving, using and developing them are not just the basic right of national and ethnic minorities, but are also in the mutual interest of the Hungarian nation, and other countries and nations.
Taking into account, that the municipalities form the basis of the democratic system, the National Assembly regards minority law enforcement, the establishment of the minority municipalities, their activities and the cultural autonomy implemented the most important basic condition.
The minority ombudsman was established to protect the rights of national and ethnic minorities. The Hungarian Republic's Constitution contains a regulation concerning the Minority Commissioner. According to §32/B. (2), the national and ethnic minority Parliamentary Commissioner's task is to examine the national and ethnic offences the commissioner has notice of, or have them examined and initiate general or individual instructions for their prosecution. The National Assembly, in order to protect constitutional rights, elected the Parliamentary Commissioner and its general deputy - with a two-third majority vote, and exclusively for him as a responsible fiduciary - in June 30 1995, and additionally elected two separate commissioners for the protection of certain constitutional rights. I was given the honourable task of acting for the protection of the national and ethnic minorities.
The National Assembly passed the Parliamentary Commissioner Law in 1993. This statute declares, that the ombudsman is allowed to examine every possible case and instruct any authority with the exception of courts. During the examination, the ombudsman is allowed to ask for documents, listen to the parties involved, examine the location, and ask for a declaration and an explanation.
The national and ethnic minority rights law has also been in effect since 1993. This contains the regulation which declares that the Minority Commissioner acts according to the facts of this law. In this way, the range of the statute becomes clear, and this defines my activity. In order to understand the minority ombudsman's' work I will briefly characterise the Hungarian minority legal system.
The orders of the law declare that there are thirteen ethnic groups in Hungary (Bulgarians, Gypsies, Greeks, Croats, Poles, Germans, Armenians, Romanians, Ruthenians, Serbs, Slovaks, Slovenes, and Ukrainians). These minorities have individual and public rights. The individual rights in short are the following: the right of self-determination; the right to equal opportunities; the right to be free from discrimination; the right to play a role in public life; the right to live according to tradition; the right of culture, and to mother tongue education. The public rights in short are the following: the right to self-determination; the right to be free from discrimination; the right of self-government; the right to cultural and educational autonomy; the right of living according to tradition; the right of national assembly representation and so on. The Hungarian minorities established their municipalities in 1994-95. As the minorities live scattered around the various areas of the country, it was wise to establish a system which is connected to the establishment municipality system. This system is unique in Europe. According to the minority law in effect, it is the individual's exclusive and inalienable right to belong to any national, ethnic groups, minorities and to admit and declare this state. No-one can be forced to declare the membership of a specific minority. This principle - the free choice of identity - is valid at the declaration of the individual and public rights, this is the model of the minority municipality. There is no minority registration thanks to this. The minority municipality is a cultural autonomy. The citizens belonging to minorities vote for the candidates of minority municipalities based on the principle of free choice of identity, establishing the local minority authority at the given establishment. The minority municipality representatives established - with the use of electors - the national minority municipality. The minority municipalities make decisions about their organisational and operational rules, their slogans and name in their own jurisdiction, they are allowed to establish and maintain institutions, especially in the field of local education, the local media, traditions and public education. The minority municipality system - because of its characteristics - is in close connection with the establishment's municipality system. The national and ethnic minority rights law even contains commitments for the establishment's municipalities. For example according to paragraph 29.§ (1), the establishment's municipality can only pass a regulation on local public education, local media, local respect for tradition and culture, and collective language use if there is a consensus between the representative body and municipality representing the minority. According to the second paragraph, consensus with the given local minority municipality is also needed for the appointment of leaders of municipality institutions, and also for the establishment's municipality decision to train members of the minority.
According to the above mentioned regulation, the establishment's municipality is forced to collaborate on certain questions with the local minority municipality. I received a lot of reports which quote the above mentioned harm to be committed. The local municipalities will have to consider the interest of those minorities living in the establishment in the future and will have to develop the rules for their collaboration, and also they will have to abide by the minority law. The minority municipalities have to learn the techniques and the rules of interest representation and interest enforcement. These are new tasks for both types of municipalities, and therefore I am going to pay more attention to these problems. The situation is similar in the case of the national minority municipalities. The national minority municipality provides an opinion about the statute drafts which are concerned with the problems of the minority represented. It has a right of consensus in connection with the learning material used in the education of the minority. It also has the right of consensus in connection with the legislation related to the preservation and maintenance of historic buildings and architectural remains. The national minority municipalities have found it harmful and sent a report. They could not provide an opinion as the ministries did not send them the draft of the statute, or in some cases did send it, but too late. The minority municipalities have requested my opinion as to the explanation of one or two regulatory orders. It is not my task to explain the order in the absence of a concrete criminal offence, but I do not reject this undertaking. I always state, that my opinion is not mandatory, only the court can judge. I find that such explanations help the operation of the municipality as orders are made more easily understood and applied. If I notice that the constitutional offence is committed because of a regulation which is needless, not ambiguous, or when the given question is not regulated by omission, then I have the right to suggest at the legislation that this law must be changed, abrogated or declared. There are two important rules, which are in concurrence with the practice of minority rights: the local municipality law, and the public education law. I suggested that both rules should have been modified. The modification of the public education law has been fulfilled and the modified legislation has taken my advice into account. More problems are caused by the fact that the regulations of the minority law are not exact, the regulations of the minority law and the municipality law are in contradiction on some occasions, or they are incomplete presenting great difficulties for jurisdiction. In a considerable number of cases, it is enough in itself that the case is examined and we give notice about it to the authority. In most of the cases, they either handle the offence themselves or they correct the wrongful situation. On other occasions we find ourselves fully rejected. Our efficiency in the first year and a half is good. Not every player is accustomed to out existence or with our function. Therefore we have to fight for our prestige, to be acclaimed, and we have possibilities open to us for this. The most important however is that the commissioner and his colleagues work to high standards and in an honest way. We should strive not to make a mistake, as in our role we make conclusions about the mistakes of others, and if we ourselves make a mistake, then we lose our credibility. We must not make cases wait, in the usual bureaucratic style, but should provide a citizen-friendly, customer-friendly operation. Furthermore, we need to be very persistent, and never give up. We have to gradually achieve the situation where the citizens trust the statutory institutions, as there is nothing more damaging in a democracy, than when citizens lose faith in it, and hold no trust in its institutions. The citizens can not feel that this is not their democracy, not their state. This has greater significance in connection with minorities, as the minority citizen could regard its own state as alien. I regard it to my duty to play the role of a bridge between the majority and the minority for mutual understanding and for mutual law enforcement. As the ombudsman and the minority legal system, are new in Hungary we can consider ourselves part of a new learning process. This could be helped by the consequences and experiences, found in the report. The report of the ombudsman is an individual piece of work and the author bears full responsibility. The following report however could not have been prepared without the efficient collaboration of my colleagues. This is also true for all those, who participated as freelance experts, minority legal protector or anyone else who provided assistance to me, having a realisation of the importance of human and minority legal protection. I would like to thank them all, and look forward to the same degree of collaboration in the future.
1. THE ABUSE OF THE DISCRIMINATION BAN More than half of the complaints of 1995 and 1996 requested the Minority Commissioner to obtain redress for the prejudicial discrimination against members of minorities. These cases prove, that discrimination is an existing social problem, and all possible tools have to be used against it. For this action to be more effective, the primary task is to define the direct and indirect form of prejudicial discrimination. After having created the unified system of terminology, it is necessary to examine whether the discriminative cases are the result of the improper implementation of the law, or whether they are caused by insufficient legislation.
It is my belief, according to the rule of law, that prejudicial discrimination against members of a national or ethnic minority on the basis of race, colour, gender, political or any other belief, is a direct discrimination from a legislative point of view. The case is an indirect discrimination when the rule of law itself does not judge it to be discriminative, but the environment or conditions make it so as the majority of the above collective group can not fulfil the prescription and would be viewed as being discriminated against.. With minorities, in most cases their disadvantageous social situation and low qualifications makes them unsuitable. This situation is unfortunately valid for the multi-disadvantaged gypsy minority. In such cases the discriminative nature of the rule of law cannot be stated. The legislation in this case should not evaluate based on the abuse of the minority discrimination ban, but based on that constitutional order which states that the Hungarian Republic also contributes to equality before the law with the orders that eliminate inequality of opportunity. If the different cultural backgrounds, the unique system of traditions, the minority existence are the primary causes for most of the minorities not being able to fulfil the conditions stated in a rule of law and are discriminated against because of this, direct discrimination can exist despite the fact that the rule of order in not unconstitutional by its content. During examinations I regard the minority rule of law ‘awkward' when in itself not discriminative, but discriminative with other rules of law.
A generally accepted view is that prejudicial discrimination has four main areas: personal, official (authorities), employment and cultural discrimination. The complaints received in the office relate to official discrimination.
DISCRIMINATION IN THE MUNICIPALITIES' JURISDICTION THE CASES OF DIRECT DISCRIMINATION In today's social situation it is a deadlock for the disadvantaged gypsy family to obtain an apartment or to build a house. A lot of municipalities helped the gypsy families with no apartments or forced into emergency solutions obtain apartments with financial support, or by finding the possibilities.. At the same time, the urge to eliminate the gypsy sectors has grown in the municipalities, which the gypsy families regard a minority prejudice. The following cases demonstrate this tendency:
A legal protection society initiated our inspection against the local municipalities' discriminative procedure. According to the complainant, the mayor's procedure intended to move three gypsy families out of the village.
The gypsy families were threatened by young skinheads. The threatened families' real estates were bought by the municipality - due to a resolution - and building sites were bought for them. The mayor promised that the municipality would help them in the building operations through social political support. The gypsy families sold their real estates to the municipalities in the hope of having an apartment built.
The minutes of the municipalities board of representatives' sessions contains such statements as - „the mayor urges the nationalities to move out", „...representative ..... urges all nationalities to move out" (that is from the village), - it is presumable based on this evidence, that it is not a moving of free will, but by pressure brought by the ones practising local power. The statements of the board of representatives and the mayor refer to the abuse of the discrimination ban. The board of representatives' decision states that the local municipality has decided that it will buy the minority real estate in the village. The decision does not include the names of those selling their homes, but their ethnic status.
During the preparation of the submission or the decision neither the board of representatives nor the mayor looked for other alternatives to solve the gypsy families' problem .
We experienced during the field examination, that the gypsy families trusted the promise of the municipality's mayor, which included the promise that he would help find an entrepreneur that could build the house from the social political support.
The time that has passed since proves that their premises did not improve, the apartments are not being built, and the promised help from the board of representatives and the mayor of the municipality, now disinterested, has not been given.
It was assumed based on the inspection, that the minority's unlawful conduct with the gypsy families' real estate purchase and the offence of the rules of husbandry led to an awkward situation in connection with the ethnic minorities constitutional law. Therefore I have visited the leader of the public administration office with a recommendation and asked to examine in their legal control sphere of authority the municipality board of representatives' discriminatory (also from a formality point of view) municipality decision, and I also asked that the examination should be extended to the operation of the board as well. The recommendation includes the request that the public administration office should call the attention of the State Audit Office to the municipality's board of representatives' and the mayor's violation of law concerning the municipality's husbandry. In addition I asked the leader of the public administration office that during their legality control the minority rights and their unique needs should receive more importance and asked that they should take consideration how the gypsy families' environment is changing.
The public administration office has judged the expression „ethnic minority" in the decision unauthorised because of it's negative content in the given context and have asked the municipality in a letter to provide them with the names of those making the decision and the modification of the municipality's future methods in this question. At the same time, it judged the mayor and the operation of the board of representatives to be in default breach of law , based on the experience of the inspection, as the mayor did not report on the dated decisions, and the procedure of the board of representatives did not fulfil the rules of the organisational and operational articles.
The State Audit Office has informed me through a letter, that it examines the husbandry of the municipality during it's annual checking plan and it has extended this to the municipality husbandry area detailed in the recommendation.
In a different case, the gypsy minority municipality initiated a procedure with the Minority Commissioner in connection with the discrimination of most of the gypsies living in the settlement.. Their complaint was based on the fact that no solid pavements and roads were in the part of the settlement where they lived in a certain town. The complainants stated that the municipality did not create solid pavement roads as those streets were inhabited by gypsies.
The complainants judged the municipalities road and pavement paving practice discriminating against the minorities, who, following many years of useless effort wanted to achieve their goal of having similar traffic possibilities as in the other parts of the town.
According to the inspection I found that the offences described by the gypsy minority municipality are real. It is true that no pavements and roads are being built in the part of the town where gypsies live. The sector is inhabited by families who are not financially able to support the road and pavement construction, the municipality links support to this condition. They do it against the fact that they have not signed an agreement according to the public traffic law with the inhabitants for public road construction.
The town's municipality have discriminated against those living in the sector with its offence of the rule of law, and by this behaviour, has created a national and ethnic minority ‘awkward' situation in connection with the constitutional law. Therefore I have given the following recommendation to the municipality.
„According to the local municipality law the settlement's municipality's tasks include the creation and the maintenance of the water-system, the drainage of the rainwater and an obligation to maintain the local public roads. The municipality should complete the above mentioned tasks in the future - according to the effective rule of law - in a way which does not discriminate against anyone in a prejudicial way.
The municipality should stop the current practice during the implementation of the annual budget and the system of usage should be created so that it respects the rule of law and also the professional points of view.
The municipality should examine the road and pavement network of the sector, its rainwater drainage system and the public services from the perspective of the ones living in the area caring both for their interest and the rule of law."
The denial of the creation of housing possibilities can be assessed as a growing discrimination tendency against the gypsy inhabitants.
The mayor of the local municipality did not allow the creation of a dwelling for the complainant in the village. The complainant found the decision of the mayor to be damaging and requested help from the Minority Commissioner.
I visited the mayor, who did not allow the residence, during the inspection and asked why the complainant is not allowed to settle. At the same time I asked when attempts were made to register a permanent residence, whether the registry rejected the registration and according to what legal rules.
As I received no answer I repeated the questions. The mayor informed me after several months that the complainant was registered to settle in the village, but he did not mention in his answer who rejected the registration or why and neither did they attach the documents of the case.
It is probable, that if the complainant does not turn to the Minority Commissioner quoting the infringement of his minority rights, the public administration office could have prevented the exercise of their citizenship rights through the office's silence and their unlawful decision. In another case the president of the gypsy minority municipality turned to us for our help. They informed us, that the settlement's municipality rejected their request to obtain agricultural land. They briefly said that there was no land to be distributed.
I visited the mayor of the village during my inspection and requested I be informed as to how he intended to support the plan of the gypsy minority municipality. In my view, the best interest of the village is to have more inhabitants who are able to fully support themselves and their families, as thereby the budget of the social benefits can be lowered. The amount, that is released in this way, can be channelled to other purposes. It is in everybody's interest that the inhabitants of gypsy origin are provided with land, especially when this action is co-ordinated by the minority municipality.
The mayor informed me later that the minority municipality did receive land deriving from the earlier co-operative and they would soon sign the contract dealing with this. In addition, the municipality worked out a job creation programme which would be implemented in co-operation with the neighbouring village.
It is obvious from the process of the case that the gypsy municipality's request was rejected with justifications which were not genuine, and discrimination is behind their intention. The municipality only gave land to the gypsies because of the intervention of the Parliamentary Commissioner and thereby brought their prejudicial situation to an end. A complaint of a town's gypsy minority municipality is a good example for the local municipality's discriminative behaviour against minorities. They complained in this case that when they apply for a benefit they have to „work voluntarily" for an extent equal to the worth of the benefit they apply for.
The inspection found that the case was valid. The leaders of the municipality stated that the „voluntary work" was in all cases of one's free will, but a lot of facts contradict this. For example the unlawful practise was stopped at the beginning of the inspection; that the completion of the „voluntary work" had had to be checked and attached to the benefit application; that the „voluntary work" had never been advertised, and no-one else had done this work only the ones applying for a benefit at the municipality.
In the main it was the gypsy inhabitants who complained, as mostly they needed the social benefits due to their bad financial situation.
The inspection has not ended in all aspects, I intend to initiate measures depending on the final result. THE DISCRIMINATORY NATURE OF POLICE ROUTINES - A DEBATE WITH THE STATE ATTORNEY'S OFFICE During the time that has passed since my election, I have observed the well known problem: the unlawful behaviour of the police towards gypsies. We can draw conclusions through the press, and by being informed by the various legal protection offices, consulting and evaluating the complaints with them that it is such a headache in the relationship between the authorities and the minority that it should be dealt with in more detail. The importance of the problem is greater than the aspect mentioned above . It has an effect on one of the basic questions of democratic power, the system of institutions that guarantee the lawful operation of the police, in two aspects. The first effect is the equality before the law in connection with the policeman, „the uniformed citizen". On the other hand, it has an effect on the inspection of the criminal police activity of the State Attorney, which refers to the constitutional state of the criminal jurisdiction.
I stated at a meeting - dealing with the situation of the police and the gypsies - held in the National Police headquarters in 1996, that I had initiated an inspection for the prejudicial discrimination against gypsies by the police according to the citizenship rights Parliamentary Commissioner's 1993 LIX law 16th § section (2). I mentioned that I expected those present to help me.
I asked the following in my letter to the leader at the national police headquarters:
a) to provide me with all the data that refers to the discrimination against the gypsy, which could be linked to unlawful police practice and which he became aware of during his inspection activity;
b) to mention whether there is an internal policy or leader's order against prejudicial gypsy discrimination. I asked him to provide me with these if they existed;
c) if the leader of the national police headquarters owns any data that refers to the discrimination against gypsies, then to make certain he informs me about the measures he initiated to eliminate discrimination or the steps he took after becoming aware of unlawful actions.
The leader of the national police headquarters stated in his answer, that he had received no such information which positively stating that police discrimination happened against gypsies.
In 1995, in connection with a case - publicised in the press - the participants of the process said that the police action was initiated against them on account of their gypsy origin. This could not be proved unambiguously during the processes, but the leader of the national police headquarters decided that he would follow the connection of the police and the gypsy with attention - until the closure of the conflict situation - noticing that there were many rumours of such cases.
In April 1996 the national leader accepted an inspection plan. The plan was to check the cases when policemen were charged by gypsies, to check the efficiency of the leader's measures in solving and handling the conflict situations.
The inspection initiated by the national leader did not result in the outcome that any of the police organisations were guilty of acting against the gypsy minority, or were using unlawful means or methods exclusively with them. OPEN DAY I introduced an „open day" with the help of the press and the various legal protection offices in the Parliamentary Commissioner's office on April 15 1996. The organisation's goal was to provide the possibility of a personal meeting for the gypsy citizens who claim to have been discriminated against by the police on account of their origin. A further goal was to strengthen the level of trust for the Parliamentary Commissioner and it's office and to collect information, which might confirm or contradict the rumours of police brutality.
Most of the persons present at the „open day" claimed, that they or their relatives were abused by policemen or were discriminated against on the basis of their origin. All the complaints were handled by the State Attorney and also the State Attorney's investigation office in a more detailed fashion. The charges - which exclusively criminal offences related to abuse by the police during official investigation, third degree or unlawful imprisonment - were all dropped for lack of evidence or criminal offence if there had been an investigation but after some checking it was seen that the investigation was denied in a lot of cases. These complaints or cases could have been inspected by studying the documents owned by the State Attorney's investigation office - created during the criminal case. The same refers to the complaints which were not reported on the „open day" but at other times.
A total of 30 such complaints were reported which found the activity of the police discriminative. From these four complaints were submitted because the police as a criminal authority were taking criminal proceedings against the gypsy minority. The competent leaders of the police have sent us the documentation of the argued criminal proceedings, so their study was possible. It was clear, that the authorities practice was lawful in these cases and there was no prejudicial discrimination, the criminal offence was actual, and the sentences were proportional to the seriousness of the offence.
No inspection was possible in cases, where police brutality was complained of, and thus where a crime was suspected, as the State Attorney's office did not provide us with documentation. A DEBATE WITH THE STATE ATTORNEY'S OFFICE I have informed the Attorney General, due to my earlier decisions, that I have initiated proceedings over the connection between the gypsy ethnic minority and its members and the police, for a request according to the OBTV. 16th § section (1) and (2) and also in the line of my duties, primarily on the question of whether there is any discrimination against the above mentioned minority. The documentation - chosen by various territorial units - of the criminal cases registered by the State Attorney's office as criminal offences in the statistics of 1995 should be examined during the inspection. For this, initially, I have mainly requested the filing number of cases that had to be inspected, I requested information about the method and the title of the case conclusion for each case and also an answer as to whether the files are available in the archives. I stated the method of the inspection, in which the documents would be studied by my colleagues on the spot. I asked also that the staff of the State Attorney's office should be present during the documentation study.
The Attorney General repeated his earlier opinion, that according to the Obtv. law the State Attorney does not belong to the authorities covered by the Parliamentary Commissioner's authority due to the Obtv. law's § 16 section (1). He found it necessary to explain that the criminal investigation authority's task - therefore the State Attorney's office too - was to reveal the criminal cases quickly and thoroughly, was the thorough and complete clearing up of the definite criminal offences, and was to reveal the incriminating, exempting and other circumstances. This is therefore the task of the State Attorney's office and not the judgement of the relationship between the police and gypsy or any other minority. The Attorney General declared that the investigation of the State Attorney's office does not include the ethnic examination of the persons under police measure, therefore the criminal statistics of the unified police and State Attorney's office do not contain relevant data in connection with this. Finally he repeatedly declared that the State Attorney's organisation and he himself are doing their best to support and help the activity of the Parliamentary Commissioners, but due to the causes stated in his letter they were not able to facilitate the relevant inspection with the State Attorney's office colleagues.
Due to the facts given above, the intention of making a dedicated aim inspection could not be carried out. The examination of the topic can not be executed - successfully - with methods other than studying the State Attorney's office documents.
The minority rights Parliamentary Commissioner and his deputy and also the data protection commissioner received similar letters of rejection from the Attorney General. The Attorney General together with his deputies and also the Parliamentary Commissioners had a meeting on August 22nd 1996 in an attempt to accommodate each others opinions. The meeting did not have any direct result. The Attorney General promised that he would re-evaluate his opinion, and later state the result of it. The rejective behaviour of the State Attorney's office limits all Parliamentary Commissioners in the practice of their lawful activity and in the practice of their activity according to the possibilities of the rules of law. But it obstructs the national and ethnic minority Parliamentary Commissioner's working, as the complaints against police activity derive from the biggest Hungarian minority, the gypsies. It would be the duty of the Parliamentary Commissioner to inspect, based on these complaints, whether there is a discriminatory tendency in the activity of the police. A successful inspection can only be performed through the study of the documents based on police arrests. The documents are owned by the State Attorney's office and the Parliamentary Commissioner can not take a look at them due to the dismissive opinion of the State Attorney's office. A very important question in connection with the judgement of the case is that the legal basis of the Parliamentary Commissioner's inspection is not the 29th § of the Obtv. law, because the subject of the inspection is not the State Attorney's office as an organisation, but police discrimination. The documents necessary for the inspection can be found in the State Attorney's office which is responsible for sending them to us according to the 18th § Obtv. law section (2), as it is absolutely true that the State Attorney's office fits the category „any authority". CONSTITUTIONAL COURT INITIATIVE The Parliamentary Commissioners found the procedure of the Constitutional Court necessary in the debate with the State Attorney's office for the following reasons.
The Parliamentary Commissioner orders the inspection of the irregularity in connection with the Constitution's § 32/B concerning constitutional rights.
Due to the wording and the attached preamble of the § 32/B the institution of Parliamentary Commissioner was established by the legislation for the inspection and remedying of such ‘awkwardness' which could arise in statutory procedures having an impact on the constitution.
The Attorney General's reasoning is in close connection with the Constitution. The result of the Attorney General's argument is that the implementation of the Constitution's § 32/B becomes doubtful. The rule quoted of the Constitution does not make an exception, but orders the inspection of all ‘awkwardness' in connection with minority rights. Of course the other regulations of the Constitution cannot contain such a rule that declares that the Parliamentary Commissioner is not allowed to inspect an organisation (or review the possible ‘awkwardness' caused by them). The court can be regarded as such an organisation, for the Constitutional Court declared the definition of it as an constitutional exception. The commissioners think that there is no constitutional principle or rule in connection with the State Attorney's office, which would give reason for this limitation, so the exception status of the State Attorney's office is not consistent with the content of the Constitution's § 32/B. Therefore the interpretation of the Constitution became necessary.
There are jurisdiction aspects concerning the difference of opinions with the Attorney General.
The essence of the jurisdiction dispute is who has the authority for the inspection when the complaint about the constitutional rights is in connection with the State Attorney's office or in the event that the documents necessary for the inspection of the complaint are in the ownership of the State Attorney's office: only the State Attorney's office or the Parliamentary Commissioners as an external organisation do. According to the opinion of the Attorney General, the State Attorney's office is exclusively responsible to the National Assembly, therefore the commissioners do not have the authority to inspect the State Attorney's office. According to the commissioners opinion the commissioners have this inspection authority based on the Constitution. So the authority debate can be described as the following: is only the National Assembly allowed to inspect the constitutional rights aspects of the State Attorney's office's activities or are the Parliamentary Commissioners authorised for this, who are exclusively responsible to the National Assembly? It was noted that according to their opinion the Parliamentary Commissioners responsibility does not cover the State Attorney's office's measures which are decided by the court as to their legality and whether they are well-founded, taking into consideration the fact that the Parliamentary Commissioner's expression of opinion in such cases would hurt the principle of judicial independence. Our belief is that the Parliamentary Commissioners are allowed to inspect the measures and resolutions (including the withdrawal of charges) of the State Attorney's offices.
The procedure of the Constitutional Court has not finished until the preparation of the report. I have suspended the inspection until the decision of the Constitutional Court is made, I will be able to decide about the inspection after receiving the decision of the Constitutional Court.
2. THE ABUSE OF THE COLLECTIVE (MUNICIPALITY) RIGHTS
THE ‘AWKWARDNESS' ABOUT THE RIGHT FOR CONSENSUS-EXPRESSION OF OPINION According to the § 38th, section (1) article a) of the minority law the national minority municipality is allowed to form an opinion about the draft rules having an impact on the minority they represent, including the county and capital level assembly regulations. This regulation is of course supplemented by the opinion expression regulations on the rule draft of the law about legislation, which obliges the organisations preparing the rule draft, that the ones authorised - in this case the national municipalities - should be made part of the legislative process. The Parliamentary Commissioner received a lot of complaints or information during the time he was in office concerning the dereliction of his above duty. We have to mention, before describing the relevant inspections, why I find this right of the national municipalities to express their opinion especially important.
According to the§ 68th, section (1) of the Constitution the Hungarian national and ethnic minorities are state-establishing factors. The state-establishing factor provides the right to express opinion with greater emphasis in public law. The abuse of this right or the direct threat of abuse causes such an ‘awkwardness' in connection with minority rights which have great importance this way.
In 1995, the state budget law's draft included regulations which if passed by the National Assembly in its original state could have meant a change in the connection between the state budget and both the national and the local municipalities. Especially significant changes would have occurred in connection with the national municipalities.
I considered the petition of the national municipalities reasonable, and that is why I tried to provide an opportunity for the national municipalities to exercise their right to express their opinion - although this was a little bit late. As a result Parliament adopted a version of the amendment of the Law on State Finances which reorganised the relation of the minority municipalities and the state finances to an acceptable extent.
The enforcement of the minority municipalities' right to define their budgets independently and the national municipalities' right to give their opinion on draft bills arose at the time of drafting the 1996 Budget Law in a way that the national municipalities - because of the above mentioned authorisations - would have had twice the right to be involved in the preparation of the act. The government body responsible for preparing the provision of law (the Ministry of Finance) did not want to involve the municipalities in the preparation of the law, which was a violation of its obligations.
Also considering the complaint of the national municipalities reasonable in connection with this, I initiated a reconciliation between the Ministry of Finance, the National and Ethnic Minorities Department and the national municipalities. As a result the municipalities could exercise their right to give an opinion.
During the negotiations of the draft of the Act on Radio and Television the national municipalities again did not have an opportunity to exercise their right to give their opinion on the provisions of law in a proper way. As the Law is of fundamental significance in the field of mass media and the implementation of the rights of minorities, social control would have had to be exercised on it as early as the preparation stage.
In 1996 the right of municipalities to give their opinions on draft bills was the subject of two proceedings. During the process of creating the law on the settlement of local municipalities' debts, at an early stage, when the provision of law only existed as a draft bill introduced to Parliament - I observed that the proposal intended to modify certain provisions of the Minority Law. After a short inquiry it turned out that the national municipalities had not received the draft of the provision of law for opinion. The official inquiry stated that the Ministry of the Interior had violated the right of giving an opinion of all the national minority municipalities. As a result of the proceedings I requested the Minister of Interior in an initiative to determine who was responsible for this neglect and to take measures so as not to violate - as a result of the negligence of the Ministry of the Interior - this very important authorisation of the national minority municipalities. The Minister of the Interior - in his response, in which the question of determination of responsibility was put aside - disputed that the above mentioned draft bill (which was adopted by Parliament and was announced during the proceedings) affected the minorities in this capacity of theirs, and thus he disputed whether the municipalities had a right to give their opinion at all on the given question. The basis of his opinion was the fact that the regulating goal of the law was the reconstruction of the solvency of those municipalities which had become insolvent because of their debts, and the modification of the Minority Law only concerned the transfer of tasks and possessions by the local municipality to the local minority municipality.
My point of view - which I explained in the response given by me to the Ministry of the Interior - was that any draft of provisions of law which has the intention to modify the Minority Law concerns the minorities in this capacity of theirs, because that law contains the individual and collective rights of minorities and the basic rules of the legal state of minority municipalities. The national municipalities have the right to give their opinion on the drafts of provisions of law which intend to modify the Minority Law - at least with regard to the modification. However, in the given case - with regard to the interpretation of the Minister of the Interior in connection with the individual force of the law as well - I considered the problem of such degree, that I did not regard any further action, except the warning of the Ministry, appropriate.
The bodies responsible for the preparation of provisions of law can violate the right of the municipalities in question by not only not sending the draft for opinion at all, but also by sending it, but giving an unacceptably short deadline for the giving of an opinion.
If the bodies responsible for the preparation of provisions of law ask for the opinion of the national minority municipalities to a very short deadline, they actually make this very important authorisation empty and formal. During an inquiry started on the initiative of a petition (which concerned the proceedings of the Ministry of Finance and the Ministry of the Interior) it was stated that the two ministries constantly send the drafts with such deadlines that it is not only impossible to create a global view of the municipality, but it is also impossible even for one member of the body to become familiar with the material on which he has to give an opinion. The inquiry also stated that the above mentioned practice is also contrary to the organisation and operation code of the two ministries. As the interest for giving an opinion on the given drafts (draft of the supplementary budget and the government report on the settlement of the scope of the authorities' tasks and authorisations) decreased and disappeared with time, I requested the two concerned ministers (thus the minister of Interior repeatedly) in an initiative, to adapt their proceedings to the rules of the laws and their own operation order. The ministers concerned accepted the initiative and informed me of the measures taken to avoid this problem in the future and their effort to comply with the constitutional rights of minority municipalities entirely.
PROBLEMS OF FINANCING AND ADMINISTRATION The minority municipalities, as complainants, have been active not only in respect of alleged violation of minority rights, but - rising to the occasion - they also took an active part in the establishment of their own conditions of activity. Based upon presently valid provisions of law, the minority municipalities are - to some extent - dependent on the regional municipalities. In the absence of readiness to co-operate, no adequate communication can develop between the two municipalities. In numerous cases, the regional municipality does not assure the conditions of operation of the minority municipality. This is - in extreme cases - shown in the regional municipality's failure to forward subsidies to the minority municipality.
The regional municipalities repeatedly violate the minority municipalities' right to control budgeting - being one of their basic rights - which means the total lack of voluntary exercise of rights. Contrary to legal rules, the regional municipalities do not co-operate with the minority municipalities in the forming of the budgeting concept and in budget planning.
In the first group of relevant complaints, the complainants - usually presidents of the minority municipalities - complain that the local municipality refuses to enter into a co-operation initiated by the minority municipality.
In one of these cases, the local municipality was not ready to co-operate with the minority municipality despite several initiatives of the president of the minority municipality. The president of the Romany Minority Municipality proposed actions in the administrative authority, the reason for which was, among others, that the minority municipality would have liked to have the budgeting concept / budget plan 1996 elaborated. This endeavour was made impossible by the failure of the notary and the mayor to co-operate and to collaborate with them.
The regional municipality rejected co-operation in spite of the fact that the administrative authority found a series of violations of law. Therefore, the same authority sent a notice to the regional municipality in respect of the observance of legality stating that the regional municipality had not proceeded according to the valid legal regulations in the preparatory phase of the acceptance of the budgetary decree for the year in question, thus, the budgetary decree of the regional municipality did not comprise the budget of the local minority municipality. The administrative authority called a personal consultation with the participation of the regional and minority officials in order that violations of law be discontinued.
The conduct of the regional municipality changed only upon the action of the Minority Commissioner. Thus, upon easing strained relations between the two municipalities, their activity could be put on a legal basis. We can register the result that an agreement has been reached between the minority and regional municipality.
Another characteristic group of complaints consists of memorials in which protests are made that the regional municipality does not incorporate in its own budget the budget of the minority municipality.
This was the reason why the president of a Romany minority municipality turned to me. In the course of the inspection it was in fact found that the yearly budget plan of the town municipality did not incorporate the budget plan of the minority municipality. Notwithstanding that the regional municipality formally settled the question of co-operation and communication, it followed an adverse procedure in the course of the formation of the budgeting concept and the elaboration of the budget plan based on which the violation of law could be stated. The same matter had another element as well. In the sense of § 28 of the Minority Law, the Mayor's Office set up by the regional municipality is obliged to assist the activity of the local minority municipalities in the manner defined in the Rules of Organisation and Activity.
It occurred several times, as in this case, that the delegates' office failed to take part in the assistance of the minority municipality's activity in spite of the fact that the relevant regulations comprise express provisions to this effect. Therefore, whereas we requested the regional municipality in our recommendation to incorporate the budget plan of the minority municipality, we separately called the attention of the municipality to the fact that the head official should render more effective assistance to the minority municipality both in the acceptance of the budgeting concept and in the due elaboration of the budget plan. A further practice of certain municipalities which represents a violation of law is that they do not invite the president of the minority municipality to the sessions of the delegates' corporation.
The above described difficulties in the application of law which were regularly observed by the county administration authorities performing the control of legality, should have given reason to the authorities for the rendering of some kind of a "methodological assistance" (elaboration of draft agreements and procedural subsidiary materials).
With regard to the fact that it did not take place, the national minority municipalities asked for our assistance in the elaboration of the main lines of the agreement to be entered upon between the local minority municipalities and the regional municipalities. Based upon the Law of State Finances, we elaborated the draft of the Co-operation Agreement to be concluded between the regional and minority municipalities and conveyed it to the national minority municipalities as well to the chief officials of the county administration authorities.
According to our information, most of the above organs utilised this draft agreement in the course of the preparations for the fiscal year 1997.
USE OF LANGUAGES One of the minority municipalities in Hungary has addressed a petition to the Minority Commissioner's office, having called upon assistance in the clarification of the statutory interpretation relating to the use of mother language of the nationalities, which has been debated by the administrative authority and themselves. The municipalities raised the question, whether - by virtue of law - the local minority municipalities are allowed to keep meetings, decisions and documentation in their mother language, whether they may transmit minutes of meetings to the administrative authority exclusively in the mother language of the minority represented by them, and whether the municipalities can be forced to take their decisions or minutes in the Hungarian language. The starting point of the inquiry was that the Constitution grants protection to national and ethnic minorities, it provides an opportunity for them to take part collectively in public life, to promote their own culture, to speak their mother language, to obtain education in the mother language, and to have the right of using names in their own language. According to paragraph (1) § 51. of the minority law, in our country anybody is free to use his mother language at all times and everywhere. It is ordained neither by the minority nor by the municipality law that minutes shall be taken compulsorily in the Hungarian language. Namely, as per paragraph (2) § 52. of the minority law, representatives of a minority may use also their mother language in the delegates' corporation of the local municipality. In the event of a contribution made in a minority language, the Hungarian text or the abstract of this speech must be enclosed with the minutes of the meeting. It is declared in paragraph (3) that, if persons belonging to a minority live in a settlement, the delegates' corporation may have its minutes or decisions kept and drawn up - besides Hungarian - also in the language of the given minority . Should any debate over interpretation occur, the Hungarian version is to be regarded as authentic. This last-mentioned case can be referred, however, only to the meetings of the delegates' corporation of the settlement, since the legislator presumes the "mixed" language composition of same. It is preposterous to apply the referred rules for local minority municipal corporations consisting of delegates of the minority only, because the binding use of the Hungarian language is out of the question in that situation. My standpoint on the subject is supported by the confirmation of the European Charter of Regional or Minority Languages through parliamentary decision. My attitude has led to success in the matter. The head of the administrative authority has accepted my recommendation. Consequently, he made no objection against keeping minutes and decisions of the meetings of the local minority municipality in the mother language of the minority, and to close the debate he arranged that minutes presented in the mother languages of the minorities shall be translated into Hungarian, which is a precondition for inspecting the observance of legality in the administrative body. Another matter, also in connection with the use of minority languages and free name-giving is that of a petitioner belonging to the Greek minority, who applied to register his new-born son's name in the Greek language. The registry office managing the request raised difficulties with this name-giving. On the basis of the registrar's information there are only four nations entitled to choose names according to their own customs, and the Greek nation is not among those nations. In this case the parents can choose a Christian name for their child from the Book of Hungarian First Names. In this book, however, no names are contained which would correspond to the intention of the Greek parents. As an alternative, this complainant has already put in his petition to the Ministry of the Interior, but his matter of name-giving has remained without answer.
The standpoint of the registry office managing the matter was completely wrong. Pursuant to paragraph (1) § 12. of the minority law every person belonging to minorities has the right to choose his or her and their children's name freely, registering their family or first name according to the rules of their mother tongue and indicating them in official documents within the framework of the law. In the case of registration not written in Roman letters the simultaneous use of phonetic transcription in Roman letters is obligatory. According to paragraph (2) upon request the registration and making out of other personal documents might be bi-lingual. The law also acknowledges the Greek as an ethnic group native to Hungary. Thus persons belonging to the Greek minority can ask for registration in their mother tongue.
We have informed the leader of the body proceeding in the matter (the notary of the municipality) and asked him to proceed in order to allow the complainant assert his rights given by the law. The matter has been solved in accordance with it.
MEDIA MATTERS TELEVISION In accordance with paragraph (1) § 18. of the minority law the public radio and television ensure the permanent production and broadcasting of programs for national and ethnic minorities. In conformity with paragraph (2) § 3., the right for national or ethnic self identity is a basic human right, to which both individuals and communities are entitled. In conformity with § 15., the preserving, promoting, strengthening and transmittance of minority self identity is an inalienable collective right of the minorities.
Between the acceptance and entry into force of Act I. of the 1996. Act on Radio and Television (hereinafter: RTV Act), the Hungarian Television was planning to change the position of the minority television programs in the program structure in a way that they would not have been able to fulfill their dual role efficiently. Hungarian Television set the time of broadcasting nationality programs as the early morning of each Saturday when it is statistically provable that the number of viewers is very low.
In order to preserve their self identity it is of basic importance for the minorities to be presented in the public media by programs of proper length of time, editing and standard. In addition to this, it is also of basic importance for the minorities to let the majority society know about their life and their existence as a minority. With the minority programs the Hungarian Television not only provides programs for the minorities but also helps to effect an aim i.e. to develop awareness by the majority society about the minority society and enable them to tolerate their differences.
According to the Parliamentary Commissioner, on the basis of all this, the measure planned by Hungarian Television, according to which the time of broadcasting and repetition of the minority programs as of 1 January, 1996 would have been changed in such a way that they would not have been able to meet their function as mentioned in paragraph 1., has violated the minorities' right for self identity. Therefore, together with the President of the National and Ethnic Minorities Department and the national municipalities of minorities, we applied to the president of Hungarian Television as a result of which Hungarian Television acknowledged the infringement of rights and withdrew the planned measure that had been found prejudicial under its own power. RADIO Pursuant to the act on radio and television when modifying the structure of the electronic media the minorities' organisations are entitled to certain rights (determination of the preparation guidelines of the minority programs, providing professional aid for the programs prepared by the minority organisations). In my point of view, these rights may prove effectual if the public radio and television and the above mentioned organisations maintain permanent relations with each other.
In order to start the regular communication necessary for the validation of this right - undertaking the role of a mediator - we called the leaders of the public radio and those of the national minority municipalities for consultation at which the concerned parties obtained concrete results and agreed on the terms of the permanent maintenance of relations.
In 1996 we initiated an inquiry in the line of duty to find out whether the postponement of the starting time of the nationality programs on the Hungarian Radio caused by the broadcasting of the sitting of Parliament, and the occasional cancellations of the minority programs resulted in ‘awkwardness' related to the right of minorities. The aim of the inquiry was to find out whether the procedure taken by the Hungarian Radio violated the regulation of paragraph (1) § 26. of RTV Act which obliges the public broadcaster to ensure the preservation of the Hungarian national and ethnic minorities' culture and mother tongue, and to regularly inform the minorities in their mother tongue. The same paragraph also lays down the obligation of the public program broadcaster according to which the length of time of the nationality programs neither in national nor in regional summary can be smaller than stated at the effective date of the act (1 February, 1996). According to the recommendation closing the inquiry, paragraphs § 42-50. of the minority law - as a provision of the national and ethnic minorities rights', stipulating the direct execution of the decrees of Constitution - ensures wide cultural autonomy for the national and ethnic minorities. The RTV act. - the provision regulating a sphere of culture, the electronic media, - has built the above referred guarantee system in the institutional system of the public radio and television as a guarantee of this constitutional requirement.
At the same time, paragraph 7 § 138. of the RTV act obliges the presidents of the public broadcasters to provide the order of the permanent broadcasting of the sittings of Parliament. The Hungarian Radio, as a public broadcaster fulfilled these two obligations in a way that it broadcast live the sittings of Parliament on the FM waveband of transmitter Kossuth and then the nationality programs were broadcast from 6.30. p.m. If the sittings were drawn out the starting time of the next programs were postponed, occasionally they were cancelled.
In my point of view this broadcasting practice of the Hungarian Radio violates the requirements stated in the Act on Radio and Television, paragraph (1) § 26. This rule - on the basis of the interpretation together with the provisions of the Minority Law providing for cultural autonomy - does not simply mean that the programmes of nationalities have to comply with the situation before the time the law entered into force according to their total duration, but also that they have to comply with the situation before the time the law entered into force - which situation was accepted by the national municipalities of nationalities - also according to their place in the programme structure and their proportion when one nationality is compared to the other. They also have to comply with the requirement of the law that the public broadcasting has to promote fostering of the mother language and culture of the national and ethnic minorities and the information of the minorities in their own mother tongue.
In preserving the self identity of national and ethnic minorities the nationality programs prepared and broadcast nationally and regionally by public broadcasters are significant. In my point of view, the public broadcaster should pay special attention to this circumstance when arranging the order of programs. In connection with this, we have to lay emphasis on the listeners' habits that depend on the time of broadcasting, which in respect of nationality - regarding the above mentioned - are highly significant. Consequently, modifying the time of broadcasting nationality programs by the broadcaster causes not only direct infringement of minority's rights but indirectly might play a significant role in weakening the minorities' awareness of self identity .
In my recommendation I set forth that the order of the broadcasting of the sittings of Parliament should be arranged in a way that the broadcasting of the nationality programs should not be broadcast later than the time set before the act entered into force, and they should be broadcast according to the program order valid before the entry into force of the act. It is the task of the RTV act and - pursuant to the stipulations of the minority law - that of the public broadcaster to meet this requirement together with the obligations of Parliament broadcasting.
In my point of view, the modification of the broadcasting order of the nationality programs cannot be the result of a special decision but has to take place in accordance with paragraph (2) § 26. of the RTV act, on the basis of the decision of the national municipalities of minorities regarding the principles of using up the allocation of nationality program time, taking into consideration the points of view of those concerned.
The President of the Hungarian Radio Public Foundation Advisory Board did not accept the recommendation. Besides referring to the fact that the Advisory Board is able to prove the infringement of rights only in the possession of detailed reports, he explained that - in their opinion - the fact itself that the starting time of the nationality programs was postponed because of the broadcasting of the sittings of Parliament does not mean the violation of the media law. It cannot play a significant role, even indirectly, in weakening the minorities' self identity knowledge.
After my declaration referring to the maintenance of the recommendation the president of the Advisory Board informed me that on the basis of analysing the data placed at the disposal of the Presidency of the Advisory Board, he came to the conclusion that the Minority Commissioner's observations and recommendations are legitimate, i.e. the infringement of rights exists. At the same time, the Presidency of the Advisory Board called upon the President of the Hungarian Radio to enforce the requirements stated in paragraph (1) § 26 of RTV Act and to carry on negotiations with the national municipalities of minorities on the division of the program time at disposal, and to determine the program order for the future so that it should exclude the violation of the obligations included in the RTV Act. THE ISSUE OF THE EDUCATION OF MINORITIES The national education of ethnic minorities is a high-priority area in the field of minority rights, as the Republic of Hungary - on the basis of paragraph (2) § 68. of the Constitution - ensures education in the mother tongue for those belonging to national and ethnic minorities. Paragraph (2) § 43. of the minority law entrusts the parent or guardian of the child to decide whether his or her child should take part in education in the mother tongue or in Hungarian. The parent or guardian cannot be restricted in exercising this right.
Knowledge of his or her own language and culture can help the person belonging to an ethnic minority in the free choice and preservation of identity to a great extent. As whole generations of minorities lost their mother tongue due to assimilation, kindergartens and schools can help children - and their parents - in finding and preserving their identity, and to stop the assimilation process. In accordance with this, I considered the petitions concerning the education of minorities of primary importance.
A significant majority of these urged the interpretation of the regulations concerning the education of minorities, and the formation of an official standpoint. Although the interpretation of rules of law is not the Minority Commissioner's task, he or she fulfilled such requests in all cases, as it became clear in the course of the inspections that the joint interpretation and application of the public education regulations concerning minorities is a difficulty for litigators in numerous cases.
Most of the petitions for interpretation and official standpoint were submitted to the Minority Commissioner before the decision extending to the education of minorities, therefore interpretation and an official standpoint made it possible to avoid infringement of minority rights. Although I indicated in all such cases that my legal standpoint was not of binding force, only for information, the decision-makers proceeded according to this standpoint.
In solving the issues of public education, the negotiation initiative of the Minority Commissioner played an important role. The Minority Commissioner even acted as mediator between the parties in certain cases.
This happened when the directorate of the secondary school of an ethnic minority initiated the re-structuring of the school to become a six-year secondary school. The regional municipality gave their approval in principle for the re-structuring, and summoned the directorate of the school to take all necessary measures. The re-organisation of the school started, and the headmaster - hoping that it could be smoothly finished before the beginning of the school-year - registered the students. The regional municipality initiated the conclusion of an agreement with the municipalities in the "catchment area" of the school. Most of these municipalities signed this agreement. Such agreements were concluded on the basis of the law on temporary rules concerning the organisation and management of public education. However, the regulation says that the number of classes in the secondary school can be increased only if "the local municipalities in the county have concluded an agreement on this issue". The standpoint of the county recorder is that the agreement has to be concluded with all municipalities of the county. This was the standpoint of the county administration office as well. This meant an unperformable task for the regional municipality, therefore they decided to restore the original state of affairs. After this, the fate of the students already registered became uncertain. In order to reach a solution, I initiated reconciliatory negotiations, and offered to act as mediator. The official of the Ministry of Culture and Public Education proposed a temporary solution, a compromise: the regional municipality should modify the deed of foundation of the school to make it a multi-functional institution, and thus enable it to start 7th and 8th-year classes with an increased level of teaching. In accordance with the recommendation, the municipality modified the deed of foundation, restoring in this way the legal condition. On the basis of the facts mentioned above, it turns out that the changes were regulated by a law having been abrogated since then, and the municipality of the county and the Administrative Authority stood rigidly by the word of a senseless, unexecutable provision.
The school did not give up the idea of the secondary school of six years, however, since then the amendment of the laws of public education has abrogated the temporary law creating impossible conditions, and the valid law of public education has to meet the demands of the changes. The municipality of the county has to prepare a development plan on the basis of claims arising in the county. I recommended the directorate of the school to notify the municipality of the county as well as the local government about their intention of changes in time so that the secondary school would participate in the development plan being prepared.
I proposed that I would follow carefully the changes at the school and, if necessary, I would mediate between the two parties in order to achieve a higher level in the education of the nationalities.
Undertaking the intermediate part led to success in a case where the municipality of minorities found it detrimental that the national education was not started in spite of the fact that its legal conditions were given.
During inquires made on the spot it was proven that there was no actual initiative for starting the education, that is infringement of rights cannot be stated. In addition to this, however, it has been proved that the parents did not even have the information necessary for commencing the education. In this respect, both the school and the municipality failed. As a result of our reconciliation the parties agreed that the school together with the representatives of the minorities would prepare the neglected information and satisfactorily inform the parents. On the basis of the above mentioned it can be stated that the source of the problem was due to lack of communication between the parties, which was brought to the surface as a result of the Minority Commissioner's work. As a result of the proper information in the autumn of 1996 the national education started in the kindergarten. In the school - at the parents' request - language is taught from the first class in study circles - as a compromise.
I have ordered a comprehensive national inquiry to be performed in 1997 in order to reveal the ‘awkwardness' of legislation and jurisdiction occurring in the field of national education . My aim is not to find scapegoats but to reveal each ‘awkward' situation which restricts the constitutional right for education of national and ethnic minorities. According to the experiences gained in the course of the inquiry I will propose taking measures in order to redress the ‘awkwardness'.
Hopefully, with his work the Minority Commissioner can help national education to meet the demands aimed at finding and preserving identity, and in addition to transmitting the values of the culture and language of minorities, help to acquire the values of 21st century Europe, and to meet the challenges. In my point of view, the position of Hungary is favourable since it has a chance to become the centre of the region, thus the money spent on national education and multicultural programs can be considered as a remunerative investment.
Budapest, March 14 1997 Dr. Jenõ Kaltenbach
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