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| ANNUAL REPORT OF THE PARLIAMENTARY COMMISSIONER FOR NATIONAL AND ETHNIC MINORITY RIGHTS 1998 | ||||||||||||||||||
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ANNUAL REPORT OF THE PARLIAMENTARY COMMISSIONER FOR NATIONAL AND ETHNIC MINORITY RIGHTS 1 January - 31 December 1998
1. The environment we live in and the community we intend to join, or minority protection trends in Europe 1.2. The parliamentary commissioner as Hungary's delegate to the ECRI 1.3. Characteristic features of the year 1998 from the aspect of minority rights
2.1. Contextual observations regarding the link between local government election campaigns, local politics and minority self-government elections 2.1.1. Minority voters tilting the balance in local politics 2.1.2. Racism as part of the election campaigns 2.1.3. A new phenomenon: ethnicity as a trading asset 2.2. The "odd one out" syndrome
2.3. Initiatives connected to minority self-government elections; preparations for and conduct of the elections 2.3.1. Regulations regarding minority self-government elections 2.3.2. Preparatory measures with a view to minority self-government elections 2.3.4. Anomalies relating to the preparation for minority self-government elections 2.4. Analysis of election results in the light of some typical complaints 2.4.1. Legal background of the minority self-government elections 2.4.2. Characteristics of minority self-government elections 2.4.3. Minority self-governments and the active suffrage 2.4.4. Minority self-governments and the passive suffrage 2.5. Findings regarding the election of national minority self-governments; the system of electors 2.5.1. Regulations regarding the formation of national minority self-governments 2.5.2. Anomalies regarding the formation of national minority self-governments
3.1. Complaints filed against the police and other law-enforcement organs 3.1.1. Complaints against police misconduct 3.1.2. Complaints against the organs of criminal justice administration 3.2. Cases related to local governments 3.2.2. Competence of the local governments and the minority self-governments 3.2.3. Complaints against municipal decisions (by the mayor) 3.2.4. Complaints against the activity of the district administrator 3.2.5. Inquiries into cases of discrimination in relation to public services in the scope of authority of the local government IV. Cases of discrimination against the members of national and ethnic minorities 4.1. Discrimination in public services (public catering and trade services, etc.) 4.1.2. The legal framework of the fight against discrimination; Legislative prospectives 4.1.3. The difficulties of evidence in cases of ethnic discrimination 4.1.4. The ombudsman's specific means of action 4.1.5. The importance of the consumer protection authority's procedure 4.2. Discrimination in employment 4.2.1. The general features of discrimination in employment: the hypothesis behind the ombudsman's enquiry and the legal background 4.2.2. Specific proposals included in the ombudsman's report 4.2.3. Proposals to the minister for the families and social welfare 4.2.4. Proposals to the minister of justice 4.2.5. Illegal job advertisements
VI. Issues of ethnic minority education in 1998 6.1. The 1997 survey of the national education system: initiations, recommendations and conclusions
6.2. Professional co-operation based on the conclusions of the education survey
6.3 Impacts of our survey on minority education
VIII. Enquiries and measures planned for the year 1999
Introduction
The environment we live in and the community we intend to join, or minority protection trends in Europe A long-standing and definitive feature of Europe's contemporary history is the process of unification. This process covers not only the efforts of European states to integrate, but also the "more common" integration of the citizens in many areas of life. Consequently, our separate standing - or independence - is becoming more and more relative, not unlike in the case of other nations, even without major political decisions. Indeed, the latter seem to be determined by the former. Therefore, what is going on outside our borders - on the so-called ‘European stage' - is gaining in significance for us all. The European Union and the Council of Europe have taken several measures in the recent past in view of the protection of minorities and the equality of rights. In this respect the Amsterdam Convention, which re-addressed the regulation of the member states' relations and refined the anti-discrimination regulations to be adopted by both the member states and the aspiring countries (as a precondition of the latters' admission to the EU) is a very important document. The CE has declared its similar intentions by approving documents (Framework Convention for the Protection of Minorities, European Charter for Regional or Minority Languages) and taking organisational measures like the establishment of the European Commission Against Racism and Intolerance (ECRI). At the same time, as it is revealed by the previous annual report of the ECRI, the majority's attitude towards the minorities, or in general ‘the smaller and weaker', the ethnically or religiously different is not acceptable, and indeed several new and old problems emerge and re-emerge in many European states.
The report identifies the following major trends:
The report stresses that the Roma minority is among the "most vulnerable" groups, and as such it is constantly threatened in almost every European country. An essential lesson for us to learn from these trends is that in all probability there exists a kind of ‘common fate of all Europeans', and the roles of the ‘offender' and the ‘victim', the ‘oppressor' and the ‘outcast', the ‘native' and the ‘alien' are often switched, which should be taken as a serious warning for all of us.
The parliamentary commissioner as Hungary's delegate to the ECRI Since it foundation in 1993, the European Commission Against Racism and Intolerance has been fighting against racism, xenophobia, anti-Semitism and intolerance in the context of European relations and the protection of human rights. The Commission monitors the legal, political and other measures taken in the member states against racism, xenophobia, anti-Semitism and intolerance, along with their impact and efficiency; it makes proposals for local, national and European actions and specifies recommendations for the member states. ECRI's action programme consists of three major areas: country reports, general recommendations and civic actions. Country reports serve the purpose of providing the member states' governments with feasible and acceptable recommendations - based on careful analysis - with a view to identifying and effectively fighting racism and intolerance. The first reports on the member states were completed in 1998. Following data collection, continuous consultation and co-ordination with the national contact persons, Hungary's permanent delegate to the ECRI participated in the preparation of the country reports on the Ukraine and France. The second phase of the preparation of country reports commences in January 1999 when, in accordance with the decisions made by the plenary meetings in 1998, the individual working groups of the Commission will review the reception and effect of the earlier recommendations and will complement the analyses with new aspects. The ECRI approved two new general recommendations in March 1998. The first one deals with the fight against racism and intolerance towards the Roma minority, while the second one summarises the conclusions derived from the experiences of victims of racism and intolerance, revealed by the country reports. From the point of view of Hungarian legislation and jurisdiction, ECRI's General Recommendation 3 on fighting discrimination against Romas is of key importance. Although the Commission's recommendations are not compulsory, compliance with them is a good indicator of the Euro-conformity of a state's legal system. Recommendation 3 contains the following proposals:
A major event of the year 1998 was the scientific colloquium entitled ‘The Place and Role of National Specialised Organisations in the Fight Against Racism and Intolerance', organised in Lausanne by the ECRI, the Federative Commission Against Racism in Switzerland and the Swiss Institute of Comparative Law. The parliamentary commissioner for national and ethnic minority rights is a member of the commission devoted to the problems of the Roma community and the special committee for the co-operation with non-governmental organisations (hereafter: NGOs). In March 1998, the Commission approved the declaration containing the principles of co-operation with NGOs and the phases of implementation. In the same year two events were held in Strasbourg, where the NGOs of the member states and the ECRI discussed European issues and national actions against racism and intolerance. In late 1997, the European Monitoring Centre Against Racism and Xenophobia was established in Vienna by the European Union and the Council of Europe. The Centre has a dual role: it collects and analyses reports on racism and xenophobia, and it prepares specific and practical proposals on the elimination of discrimination. The European Monitoring Centre works in close co-operation with European human rights NGOs and the ECRI, and they together form the European anti-racism and -xenophobia network. As an ECRI delegate to the leading organ of the Monitoring Centre, the parliamentary commissioner for national and ethnic minority rights has participated in the preparation of proposals aimed at mutual information and joint action by the interested parties. The proposals will be finalised by the ECRI in early 1999 and will be submitted to the Monitoring Centre.
Characteristic features of the year 1998 from the aspect of minority rights a) After two years of stagnation, the number of complaints addressed to the parliamentary commissioner rose by some 15 per cent. This increase is partly explained if we consider that 1998 was the year of minority self-government elections (which in fact generated much tension). What is more striking and harder to account for is the sharp increase of the proportion of complaints from Budapest: the figure rose from 14 per cent in 1997 to above 32 per cent a year later. Just like in previous years, a high proportion of the complaints came from the counties of Borsod (13%) and Pest (7%). The county of Baranya, on the other hand, stands out in the opposite sense: although this part of the country is home to the majority of the German and Croatian minorities, with many Roma inhabitants and also Serbs, Bulgarians, Greeks and Poles, the proportion of complaints from this region remained below 2 per cent! The distribution of the complaints among the national minorities also remained virtually unchanged: here again the proportion of Roma plaintiffs amounted to nearly 70 per cent. Considering the authorities accused, the only difference is that the proportion of complaints against the ‘highest ranking' local governments and police somewhat decreased. In the case of the latter some data suggest that the shift is partly due to the changing attitude of the district attorney's offices, which are becoming less indulgent towards offences by the police. The criminal procedures initiated by the parliamentary commissioner now more rarely end in a rejection to investigate. The year 1998 brought about no major controversies in connection with local government cases. Contrary to our expectations, few of the mayors associated with local governments with which we had open conflicts remained in office after the October elections (although this may not be entirely our exclusive achievement). The special situation in jurisdiction, as far as case statistics are concerned, was also mentioned in the 1997 report. This time we shall devote an entire chapter to the anomalies in that area, as the 1998 experiences further strengthened our support for an amendment of Act LIX/1993 on the Parliamentary commissioner for human rights. b) In this report, we treated the local and national minority self-government elections last October and discussed the related problems. Unfortunately, our earlier expectations have proven realistic. The inadequacy of suffrage and of the related minority rights surfaced quite strikingly. Let us note here that the attitude of the administration in charge of the professional preparation of the rules of election is fundamentally wrong and unacceptable. The administration blocked every proposal by the Minorities' Office before and by the deputy-chairperson of the Parliamentary Commission for Human Rights, Minority and Religious Issues after the parliamentary elections, proposals that were made in order to avert the foreseeable dangers. Furthermore, the preparation and conduct of the minority self-government elections, especially the information of the voters and the voting procedure itself were highly criticizable from the minority point of view. As a result, the number of spoiled ballots was incredibly high and treatment of the minority ballot papers indeed questionable. At this particular point in time there is no doubt that the relevant regulations should be extensively corrected, but this is little satisfaction for those who suffered both morally and financially. c) We wish to emphasise employment related issues in the minority context. To our knowledge, this is the first time that discrimination against Roma employees (job-seekers) has been made the subject of legal research in Hungary. Although other experts - minority researchers and sociologists - have long been pointing to the differences between the employment data of Romas and non-Romas as the main reason for the Gypsies' tragic social fallback, these enquiries naturally did not cover the problems of the legal environment and, especially, the labour administration.
II. 1998: Election year for the minority self-governments
Contextual observations regarding the link between local government election campaigns, local politics and minority self-government elections The period leading up to the election of local governments that was to take place on October 18 1998 was a time of preparation for that event, which marked itself out for a number of circumstances pertaining to the implementation of rules related to minority rights. While the capital and Hungary's other major cities were the scene of a political campaign in which the participants were the parties which had fielded their candidates during the last parliamentary elections, other regions of the country saw political fights as a result of differences between local interest groups. The reason why this latter phenomenon is looked upon as interesting from a minority point of view is that in local communities as well as small villages inhabited mostly by ethnic minorities, and in other places where the problems of a particular ethnic or national minority had impacted communal development, the fact that a particular section of the community has the "minority vote" has always affected election campaigns.
Minority voters tilting the balance in local politics Election rules currently in effect provide that municipal elections be held concurrently with minority self-government elections, which means that candidates for municipalities and minority communities are elected by voters by the same ballot. It follows from this scenario that, given the system of secret voting, it is not clear whether the minority candidates are voted in by their own minority or they have their mandate from other voters. For some minorities (Gypsies being the largest ethnic minority to be noted here), a novel characteristic of the 1998 minority self-government elections was that individual candidates in the ethnic minority community were fielded by several community groups with opposing views and easily distinguishable ambitions. In many places Roma organisations formed election alliances and campaigning was fairly active in certain regions during the period leading up to Election Day. Part of this active campaigning was, naturally, the effort campaigners had been making in trying to find allies in the community of non-Roma (majority) candidates, going in particular for municipality members and mayors, with whom they had a good working relationship; those who, due to their local political ambitions, were ready for nomination for a new term. We know of cases when candidates for local or minority communities concluded pacts of alliance: the candidates had agreed to vote on each other and also to advocate to some extent each other's policy among their respective supporters in order for either their political alliance group or a particular section of non-minority candidates to become strong enough to "tilt the balance". In actual terms this meant a mutually favoured outcome in the elections. It does not need further explanation that this phenomenon (the common practice of small communities) was mostly frowned upon by those individuals of a particular minority group who had braced themselves for candidacy in the elections. While it is declared that each and every voter, irrespective of his/her ethnicity, should have a say in the make-up of the local government, what in actual fact very often happens is that candidates backed by separate organisations, ones that are seen advocating distinctly opposing political programs, feel that they can more efficiently stand up for the interest of a particular minority than their opponents. They have argued over the years that in the final analysis the outcome of the elections hinges on the non-minority vote rather than the preferences of the given minority group.
Racism as part of the election campaigns During the 1998 election campaign, there were instances of extremism in campaign rhetoric. It should be noted that in some cases the friction between the population and the minority group of a particular community has caused racism to intensify. An example of that is what happened in Zámoly, a village community. The conflict attracted media attention and the newspapers informed the public of the decision of the local government officials, including the mayor, to provide a few homeless Roma families with temporary accommodation in a house functioning as the village community centre. The conclusions of the ombudsman's report revealed that the "tactics" of both the mayor and of other local government officials was to force the Roma families into a corner from which the only way out would have been to "move out of the place of their own accord", given the budgetary problems, as these officials put it, brought about by the presence of the families. The parliamentary commissioner for national and ethnic minority rights took steps to remedy this constitutional anomaly by taking the initiative along several options, all aimed at eliminating the violation of minority rights by submitting recommendations to the Zámoly local government. The recommendations eventually made it to the agenda of the local government and were discussed on September 10, 1998, shortly before the elections. The board meeting, convened and declared public by the mayor, was little more than a village community meeting combined with some kind of a public hearing, where the parliamentary commissioner's recommendations were refuted. Finally, the meeting took the rather peculiar form of a "campaign-launching rally" in advance of the elections, organised by the mayor, who was determined to run anew as a candidate for a consecutive term in office. The rally was attended by approximately 350 people, members of the local community, among whom some 25 were of Roma descent. It became clear that the non-Roma participants had either come to the rally with specific instructions or their presence had been planned in line with a carefully thought-out concept. This concept was devised in such a way that the list of those invited was apparently made up by two groups: one group comprised the supporters of the mayor now about to run for a subsequent term in office, and the second of voters committed to the removal from the village of personae non gratae Roma families. The list of items on the agenda of the board meeting was given a hasty rundown, limited to little more than formalities. What the real scenario of the event was focused on was to give vent to strong anti-Roma feelings in the form of a barrage of abusive slogans such as "criminal, antisocial, unfit for socialisation", all being directed against the Romas in Zámoly. All in all, the case in point revealed that the mayor in Zámoly had given its election campaign the highest priority in voicing the importance of "cleansing" the village of its Roma population, i. e. he used racist propaganda in trying to win over the majority of the non-Roma village community. (The campaign failed to secure the majority vote for the ex-mayor who, eventually, was not re-elected.) A new phenomenon: ethnicity as a trading asset 49 § of Act LXIV/1990 on the Local governments provides that a candidate in minority self-government elections shall need only "half the number of votes" of the amount received by a successful non-minority candidate with the lowest number of votes on the same local list. 7 § of Act LXXVII/1993 on the Rights of national and ethnic minorities (hereafter: the ARNEM), provides that the declaration of one's identity as a member of any national or ethnic minority group is among the individual's inalienable human and civic rights (based on the principle of the individual's freedom to assume an identity), while according to 50/B § of the Act on Local Governments, a candidate in local minority self-government elections may be an individual who is officially recommended for candidacy by not less than five voters in any constituency. The fact that local governments have been "upgraded" in terms of the role they play in more complex local government activities has led to more distinctly articulated political differences and also to more spectacular conflicts of interest. In analysing specific cases with legal implications and also in scrutinising the legislative background of certain issues, the conclusion is that the lack of autonomy regarding the decision-making capability of the members of national or ethnic minorities in connection with voting rights might lead to anomalies, as in the current voting system it is the non-minority vote that will decide which candidates or organisation will eventually be voted into office. Some carefully planned agitation and efficient co-ordination can easily bar certain sections of the political spectrum, certain "undesirable" groups both in local communities or in the counties from the chance of participating in local government activities. One example of today's "businesslike" phenomena in local politics is that individuals involved in politics are seen working for a particular minority group, having given up their previous minority affiliations in politics. Although 7 § (2) of the ARNEM does not preclude the principle of multiple identities, such a change of identities is inadmissible if opposed to by another group where the members are closely related and have a history of communal traditions and achievements, since this volatile attitude might put a question mark behind the feasibility of the minority self-government system as a whole. Minority identities are not tradable assets to be exchanged during two elections for reasons related to one's political or financial ambitions, as this would undoubtedly be an abuse of law and would also bring discredit on the principle of the special rights of ethnic minorities. The "odd one out" syndrome Stories about minority self-governments complaining about a representative of another minority or even one of the local non-ethnic minority having infiltrated their ranks via elections have by now become almost farcical. The question remains to be answered whether a particular representative of a minority who may not even be familiar with the language, culture or traditions of that minority is the suitable choice to achieve the objectives laid out in the ARNEM and to successfully represent the specific interests of a minority. This anomaly - there is no denying that there is an anomaly here -, which can only be rectified via legislation, poses the following problems: Does an individual's declaration of that individual's belonging to one (or more than one) ethnic minority by exercising his/her right of freedom to assume an identity, pursuant to 7 § of the ARNEM, adequately qualify that individual to become a representative of that minority, even though members of that minority voice their doubts regarding the truthfulness of that declaration? Those expressing their doubt may well be right: the principle of minority self-government can only be duly observed by stipulating that only representatives of a particular minority are qualified for self-government work and the assertion of the group's interests (issues related to the use of mother tongue, national culture and traditions). Legislators will have to decide whether, by upholding the principle of the individual's freedom to assume an identity - meaning that the government cannot in any form register one's ethnic descent -, they let the current loophole be used for abusive attitude and result in anomalies, or they prescribe a system of "declarations" and introduce the obligation of registration.
Initiatives connected to minority self-government elections; preparations for and conduct of the elections In the forming of minority self-governments, the first step is to examine the pertinent regulations; this is to be followed by comments on the preparatory measures and the conduct of the elections. To ensure the lawful operation of the minority governments the parliamentary commissioner decided to conduct an ex officio inquiry1 regarding the 1998-99 elections.
Regulations regarding minority self-government elections Effective regulations provide that national and ethnic minorities shall set up minority self-governments by choosing from the following two alternatives: one - the formation of an independent minority self-government with the participation of the minority representatives of the local government (local minority self-government or indirectly formed minority self-government); two - the formation of a minority self-government via minority ballot (direct minority self-government). Members of national or ethnic minorities can become local government officials by applying the principle of preferential treatment. The system of preferences is adjusted to the rules applicable to local government elections, i.e. the preferences for communities with fewer than ten thousand inhabitants are different from those applied to communities with more than ten thousand inhabitants. Despite the existing differences in the applicable system of preferences, individuals who define themselves as minority candidates can still be voted in by a much lower number of votes than other, non-minority candidates. If more than half of the officials of a local government have been voted in as a minority candidate, these members can, if they so wish, form a minority self-government, the legal status of which shall be identical with that of the local government, with some additional rights. If more than 30 % of the local government has been elected as a minority candidate, representatives voted into office as minority candidates can form a minority self-government with an indirect procedure. Voters can also form minority self-governments in a direct manner. Minority elections are characterised by rules allowing for a significant degree of flexibility compared with non-minority self-government elections in terms of the calling of, participation in and the results of such elections. Current regulations allow for minority self-government elections to be called if requested by at least five individuals who identify themselves as belonging to the same national or ethnic minority and have a permanent resident status. Elections are then to be called officially by the local election committee. Any individual who identifies himself/herself with a particular national or ethnic minority and has obtained the official backing of at least five other citizens of the same minority can qualify as a candidate for minority self-government elections. Members of minority self-governments can be voted for from a list on the ballot paper, i.e. all candidate names figure on that list in an alphabetical order (for local communities with inhabitants up to 1300, the number of electable candidates is three, while for communities with more than 1300 inhabitants the number of electable candidates is five.) Minority self-government elections are declared valid if the number of valid votes in a community with up to ten thousand inhabitants is not fewer than fifty or if the number of valid votes in a community with more than ten thousand inhabitants is not fewer than one hundred. If valid votes fall short of reaching the minimum number of votes required, no minority self-government will be formed for the municipality in question. There is, however, an additional alternative for a minority self-government to be formed if a minimum of five voters initiate the calling of a minority election in the year following general elections2.
Preparatory measures with a view to minority self-government elections Elections of the minority self-governments imply duties and tasks to be performed by the authorities concerned, both at a national and a local level. In the course of an inquiry into the background of elections, we contacted the national authorities associated with the forming of minority self-governments with the intention of sounding them out on their methodology. In answer to our question, the Office for National and Ethnic Minorities gave us details of how they provided regular advice to minority governments, and voiced their intention to take part in the training of minority self-government staffs. The Office also informed the parliamentary commissioner that a HUF 15 million fund was available in 1998 to contribute to the operation of newly formed minority self-governments and that an increase in the latter's number was being considered by the ministry in charge of minority affairs in the 1999 budget. In reply to the queries, the Ministry of Interior Affairs indicated that, due to the amendment of regulations currently in effect, its competence was limited to tasks pertaining to the elections of minority self-governments. The Ministry had performed its duties in this respect via methodological publications setting forth specific guidelines and also by taking preparatory action for the elections. In addition, the Ministry issued a decree on the implementation of the relevant rules and contacted minority self-governments nation-wide. The Ministry of Finance indicated that no information had come from the Ministry of Justice to anticipate that the 1998 budgetary appropriation would be less than required for the operational costs of newly elected local governments. Also, the Ministry of Finance advised the parliamentary commissioner that HUF 750 million was on hand to cover such operational expenses. We focused our inquiry on the preparation of the legislative and executive powers, given that certain anomalies might have been prevented in the current regulatory environment, had the legislation related to national and ethnic minorities been paid the amount of attention it deserves by the competent government agencies. One minority social organisation fielding candidates has filed a complaint against the National Office for Elections claiming that the Office had disregarded the historic as well as social divide within the national minority in question and the brochure of the elections was only published in one of the languages used by that nationality. The representative of that minority social organisation claimed that in this way citizens using the other language were at a disadvantage in exercising their civic rights. In a letter addressed to the organisation, we made it clear that government authorities were not entitled to make any distinction between specific minority groups. On the contrary, they have to consider as the official language of that minority the language accepted by the national self-government and used by the minority in question. Consequently, the procedural conduct of the National Office for Elections was correct since it chose to publish in the language labelled by the national self-government as the official language of that minority. Government organisations at a local level, i.e. the network of local election committees, also have duties to perform in the preparation for minority elections (assigning and converting of premises to be used for voting, acceptance of nominations, calling of elections). One senior official of a minority self-government has submitted a complaint against the conduct of the head of the local voting office. The official criticised that the size of the constituencies varied not in line with the number of inhabitants on the one hand, and that no national or other characteristics of the municipality in question were paid proper attention, on the other. According to the plaintiff, this accounted for disproportionality within the system of minority self-government elections. In a letter to the head of the local elections office we had to confine ourselves - partly for reasons related to the lapse of time, partly in view of the appeal being submitted later than the designated deadline - to drawing the official's attention to the need for more consideration in determining the parameters of constituencies. We emphasised the implementation of the relevant regulations and proposed that the minority self-governments should be included in the decision-making process (even though they are not entitled to be involved in their own right).
Election procedures We have already indicated that regulations currently in force define the framework of local elections. In 1998, 1554 villages and other local communities expressed their wish to hold local elections. Based on the initiatives taken, a total of 1538 elections were called by the election committees nation-wide, of which 1381 elections were eventually held in 1046 settlements. Of all the elections held, 133 were valid in legal terms and 1331 produced feasible election results. Of all the elections originally initiated (1554), a total of 16 initiatives (1 %) did not make it to the ballot. Of 1538 elections held, 157 (10 %) were eventually called off. Of a total of 1381 elections held nation-wide, 47 (3 %) ended up being invalid in legal terms. Of the 1334 elections that were valid in legal terms, 3 elections (0.2 %) produced no feasible election results. Of representatives with mandates obtained at minority self-government elections as minority candidates for local government, a total of 63 minority self-government bodies can eventually be formed. Minority representatives will be entitled to indirectly form 3 minority self-governments. As the effective regulations stipulate the priority of the formation of minority self-governments and "indirect" minority self-governments over the directly formed local governments, a total of 1309 minority self-governments can be set up via indirect procedures.5 In the wake of the 1998 elections, a total of 1375 minority self-governments can be created in 1061 local communities nation-wide.
Anomalies relating to the preparation for minority self-government elections Pursuant to 68 § (4) of the Constitution, all national and ethnic minorities have constitutional civil rights that entitle them to form minority self-governing bodies. This means that governmental duties related to the protection of national and ethnic minorities can be performed by self-governing bodies at both the local and the national levels, via the representatives voted into office by those minorities. Such governmental duties require the implementation of rules to ensure that the minorities are actually granted the kind of cultural autonomy they are entitled to. Further, 70 § (1) of the Constitution provides that every Hungarian citizen of age can be elected and can also vote at minority self-government elections. There is some contradiction between the above provisions of the Constitution in that one of them grants the right of self-government to minority communities, while the other makes it possible for each citizen of Hungary to be part of minority elections both as a voter and as a candidate. The contradiction lies in that the consistent implementation of the constitutional rights of a citizen to form a self-governing local administration means - in interpretative terms - that a citizen is excluded from minority self-government elections both as a voter and as a candidate unless that citizen belonged to a national or ethnic minority.
Analysis of election results in the light of some typical complaints Several constitutional anomalies have been highlighted in connection with the minority elections. Overall, the rules providing for the formation of minority self-governments fail to comply with constitutional requirements in at least three areas, which is why it is believed that some minor amendments will be required both to the rules and the election system itself, the latter having to be modified via lower-level regulations.
Legal background of the minority self-government elections The right to self-government is to be granted to local and minority communities in the spirit of the Constitution [the 1st sentence of 42 § reads as follows: "The community of a village or other small community, a town or city, the capital and its districts are all entitled to local governments of their own by implication of their right to self-government"; further, 68 § (4) provides that: "National and ethnic minorities are entitled to form self-governing administrations both at the local and the national levels"]. To implement the constitutional right to self-government, an election system based on the principle of universal suffrage is in place for the setting up of local governments and minority self-governments nation-wide [according to 70 § (1) of the Constitution: "Every citizen of age living on the territory of the Republic of Hungary is granted the right to be elected... and to vote at parliamentary elections, local elections, as well as minority self-government elections..."] As regards local governments, the constitutional right to self-government provides for the "independence at local level of any community of citizens that manifested their ability to democratically handle public affairs and exercise local power for the benefit of the public [2nd sentence of 42 § of the Constitution]. "Local affairs of importance are those pertaining to the supply of the population with the required public services, the exercising at local government level of public power, and those relating to the organisational, personal, as well as financial aspects of the conditions that need to be met in performing those duties" [1 § (2) of the Ötv.]. The constitutional right to self-government shall be implemented via ".... the protection of minority interests and the representation of minority communities by performing legislatively expounded tasks and duties " [5 § (2) of the ARNEM]. The notion of people's constitutional right to self-government covers, in the case of local governments, the independent regulation and handling of local affairs that are part of their administrative competence [1 § (3) of the Ötv.], while in the case of minority self-governments, the implementation of the rights expounded in the ARNEM (with special regard to the rights of comment and consent/consultation). Apart from the fact that the right to self-government applies in each community regulation to a different group of individuals, neither the notion nor the descriptive power of the term "minority community" can be determined with absolute precision as "no one is under any form of legal obligation to officially declare oneself as being part of or belonging to a national or ethnic minority".
Characteristics of minority self-government elections The effective regulations stipulating the forming of local governments and minority self-governments fail to make the necessary distinction between the constitutional rights to self-government in connection with local governments on one hand and minority self-governments on the other, although the subject, the aim and the content of those rights all differ. In order that the local governments can successfully perform their above-mentioned duties and exercise their legislative and executive rights, their legitimacy needs to be confirmed via direct and secret ballot, based on the principle of universal suffrage (i.e. including every sane citizen of age that resides in the constituency) and equality (i.e. no preferential treatment is given to any citizen or any group of citizens). Elections held according to these principles are the safeguard for local power to be exercised according to the required standards of legitimacy, which in other words means approval by local citizens. Despite the fact that the scope of duties to be performed by minority self-governments differs from that of local governments (see above), legislation has provided minority self-governments with a legal status similar to that of local governments. Local and minority elections are based on the same principles of voting rights and the same regulatory framework (the guiding principle was to hold both elections at the same time). Accordingly, both local and minority elections are to apply the principle of equality and universal suffrage, both in the active and passive sense of that legal term (every citizen with the right to vote can participate in the elections both as a candidate and as a voter). As minority rights apply to a specific group of people within society, a constitutional stumbling block here is whether the legitimacy of the minority self-government system should be created, like in the case of local governments, via an election system based on equality and universal suffrage (in the active and passive sense of the term).
Minority self-governments and the active suffrage The constitutional right to minority self-government does not cover all aspects of public affairs of a minority community. Furthermore, it does not ensure the exercising of regulatory and administrative powers. In other words, there is some constitutional concern over the absence of a direct link between active suffrage and the members of the minority. Instead of such a direct relationship, the legislation bases the institutional legitimacy of the minority self-government system upon the principle of universal suffrage and equality. As the descriptive value of the term 'minority community' is not absolute, and because every citizen is granted the right to vote at minority self-government elections, the foundations of the current system of active suffrage cannot be questioned merely for formal, constitutional reasons. Given the constitutional right of minority communities to independent self-governments, it is, however, constitutionally crucial that the active suffrage be ensured for members of a minority community by a combination of legal means (differently timed local and minority elections), so that voters identifying with a particular minority can vote for candidates of the minority self-government. Another constitutional requirement is that, if - in the course of minority elections - no constraints were imposed on the active suffrage via legislation, real options should be held out to voters identifying with any national or ethnic minority. Voters should be granted the chance of getting to know, via the amendment of election rules, minority candidates and their programs, making a real choice possible between individual candidates. One alternative might be the modification of the relevant regulations of the Vet., which would make the alphabetical listing of candidates on the voting slip redundant. The vice-president of one national minority self-government has turned to the parliamentary commissioner for national and ethnic minority rights for a reply to his/her queries regarding the interpretation of some legal aspects of the minority self-government elections. The vice-president raised the point that the "alphabetical order" of candidates on the ballot is unfair as "votes of sympathy" are normally given to those on top. Another point raised was that by holding the minority and the local elections simultaneously, the outcome of minority elections is in fact decided by the non-minority vote. Owing to the principle of equality, universal suffrage and a secret ballot, the actual election results will not reveal the proportional consequences of the minority vote as distinct from the so-called ‘sympathy vote'.
Minority self-governments and the passive suffrage While no constitutional objection can be raised to the fact that not only citizens from a particular minority group can vote at a minority self-government election but any member of the non-minority community, the right to vote for members outside a particular minority will lead to a constitutional anomaly for the following reasons: The constitutional right to elect national and ethnic minority self-governments targets the implementation of the rights of those minorities and, in broad terms, the protection of the interests of those minorities. As these rights basically serve the foundations of cultural autonomy, the interests of any minority can only be effectively protected by members of that particular minority. Consequently, it is crucial that certain constraints be put on the constitutional right to passive suffrage, as well as the right to declare one's identity. The system of minority elections should be able to function as a link between the members of a minority and the organisations authorised to represent that minority. The system, therefore, will have to be modified in such a manner that minority constitutional rights in reality become rights to be exercised by that minority alone. Legislative measures will, consequently, have to be taken to transform the system of candidacy by putting certain legal constraints on eligibility and on the free choice of one's identity. There has to be a legislative safeguard against candidates other than those who have declared themselves members of a particular minority. It may be worthwhile to consider authorising certain representatives of a minority (such as a special board of experts or the minority self-governments nation-wide) to comment on the issue of the identity of a candidate. As the implementation of the citizens' constitutional right to self-government is vital, legislative constraints (as suggested above) are needed through the amendment of the relevant regulations. In this manner the system of additional rights for minorities, regulated in the ARNEM, can be improved and made more complex, and this is also the only way that the rights of national and ethnic minorities be fully implemented. In the wake of minority elections in the capital, the president of a minority self-government has filed a complaint against some candidates admittedly not belonging to the minority in question. The president criticised that, as the alphabetical order positioned those candidates above the former head of the minority administration, and as a result of the sympathy vote - which is, characteristically, given to the names on top of the minority list, the number of votes thus given corresponding to the actual number of candidates that can be voted for - a well-known representative of the minority community was not voted into the minority government. Our conclusive comment was that there are constitutional concerns regarding the current system of the election of minority self-governments and that the parliamentary commissioner for national and ethnic minority rights shall end his inquiry by submitting a legislative proposal for the amendment of the current regulations. In an appeal submitted to the parliamentary commissioner for national and ethnic minority rights, the president of a minority self-government in the capital complained that a candidate belonging to a particular minority eventually "snatched up" a mandate by changing his/her name shortly before the elections, which got him/her into top position on the voting list, given the alphabetical order of candidates' names, which secured him/her the highest number of votes. As part of our inquiry, we appealed to the minister of interior affairs to find out whether the procedure for changing one's family name was, in this particular case, administered in compliance with the pertinent rules and also to find out about the practice applied to similar cases at ministry level. The inquiry is now underway. The head of the Office for National and Ethnic Minorities and the president of one national minority self-government have - by coincidence - both turned to the parliamentary commissioner for national and ethnic minority rights and complained about the fact that candidates who had secured mandates at the elections did not belong to the minority in question, which was widely known in the community concerned. We have requested the minister of interior affairs to inform us of the proportion over the past five years of minority candidates that declared themselves Hungarian nationals in the procedure aimed at obtaining Hungarian citizenship, with a view to being granted that status under favourable conditions. Our position is that if an individual has once declared himself/herself to be a Hungarian national in order to secure the advantages of that status in administrative procedures, that individual cannot not declare himself/herself to belong to another nationality by accepting candidacy at the minority elections without raising certain constitutional concerns by doing so, even though we generally accept the principle of multiple identities. The minister answered that 5 out of 171 candidates voted into office as representatives of the minority in question have, since the effective date of the Act on Citizenship, been granted Hungarian citizenship, two of whom have enjoyed the benefits of a preferential procedure with reference to their Hungarian nationality. We believe that this situation raises a constitutional anomaly and - although no legal option was viable against the responsible, given the protection of personal data - the parliamentary commissioner for national and ethnic minority rights will, on the basis of his findings, recommend the amendment of rules pertaining to the elections of minority self-governments in order for more transparency in the law. The president of a minority self-government has complained that in a particular village candidates other than members of the local minority ran for office at the minority elections and, as more than 50% of all representatives were elected in this way, that body declared itself a minority self-government in line with 22 § (1) of the ARNEM. The president requested our position on this manner of forming a minority self-government after the elections were closed and declared successful. Our official view was that one village is entitled to no more than one minority self-government, therefore if the local government were to be converted into a minority self-government, there is no legal alternative for a minority self-government to be formed directly. We have, at the same time, expressed concern over the prospect of non-minority candidates being elected as minority representatives, which makes the setting up of a directly-formed, constitutionally legitimate minority self-government impossible, and only allows for a local minority government or a local minority government established via an indirect procedure.
Findings regarding the election of national minority self-governments; the system of electors The Constitution provides for the formation at national level of both national and ethnic minority self-governments. The ARNEM grants the right to vote in the case of national self-governments to representatives voted in as minority candidates of local governments, representatives of minority self-governments, advocates for the minorities' cause within local governments, as well as electors voted into office for this particular purpose. The voting right includes the individual's electiveness and electivity alike. Elections mean a specific procedure of public law; they are held in the form of an electors' meeting, where the electors are authorised to vote, in compliance with the law, for a specific number of candidates attending that meeting, in order for those candidates to become members of the local government at a national level. The procedure follows a pattern of 'shortlist' voting, i.e. the same number of candidates on the nomination list are to be voted for by the electors as the current number of local government representatives. Candidates with the highest number of votes qualify to become local government officials at a national level. The number of representatives thus voted in office must be identical with that of the local representatives. The law provides that a minority elector's right to vote is, in terms of both electiveness and electivity, conditional upon his/her participation in the electors' meeting.
Regulations regarding the formation of national minority self-governments Local governments at a national level are voted into office by electors, following a procedure regulated by the law. The number of representatives to be elected is also specified in the relevant statute. The vice-president of a national minority self-government has submitted an appeal to the parliamentary commissioner for national and ethnic minority rights requesting his position on issues of legal interpretation pertaining to the elections of minority self-governments. Among the vice-president's several queries, the most important question was whether or not a mayor elected as a minority candidate was to be regarded as a minority elector, given the fact that the term 'mayor' cannot be found in the wording of the pertinent regulation among other terms, such as ‘member of the minority self-government', ‘advocate for the minority's cause' or ‘elector specifically voted into office via an electoral voting procedure'. We have indicated in our response to the vice-president's question that a mayor elected as a minority candidate is to be considered a minority elector at the election of national minority self-governments and can, therefore, participate in those elections. Although a ‘mayor elected as a minority candidate' is not specifically described as an elector, he/she is a member of the board of representatives. Consequently, he/she has all of the rights that apply to such members of the minority self-government that are voted into office as minority candidates. As the national minority self-government has equally appealed to the National Election Committee (NEC) for official comments on the same issue, we decided to participate in the NEC procedure and developed our standpoint. The NEC has come to the same conclusion in its official interpretation of the law. In a similar issue requiring interpretation of the law we established that the current system of national self-government elections (election of the local government by electors, via an indirect procedure) produces no constitutional anomaly - although it fails to turn the principle of proportional representation into reality - as the members of the national minority self-governments are representatives of minority communities rather than of minority voters.
Anomalies regarding the formation of national minority self-governments The effective legislation on the formation of minority self-governments nation-wide provides - uniquely in Hungarian public law - that local minority representatives, self-spokespersons for minorities, and electors elected through a special procedure shall be entitled to form minority self-governments via an electoral voting procedure. In order for an electoral meeting to become quorate, at least 75 % of all electors must be present, which is another unique example in Hungary's current system of voting rules. An individual interested in the election of one of Hungary's national minority self-governments has lodged a complaint with the parliamentary commissioner for national and ethnic minority rights with a lengthy description of the anti-constitutional nature of certain rules related to the elections. The plaintiff argued that in case the national organ of a minority self-government, i.e. the general meeting, were absent, the situation would result in a constitutional anomaly brought about by erroneous legal regulation. He/she also criticised the 75% attendance as an unrealistically high quorum requirement, considering that a large number of electors must be invited from all over the country and the reasons behind a meeting not being convened may in some cases be very well founded. We have examined the relevant regulations and come to the conclusion that the concern expressed by the plaintiff was realistic: there is no constitutional or other practical consideration that would necessitate a minimum of 75% attendance for an electoral meeting to become quorate and thus capable of electing a national minority self-government. It is clear both from news published in the press and documents submitted to us for consideration that the forming of the National Self-government of Ethnic Rumanians and the Self-government in Budapest of the Roma Minority and Ethnic Rumanians has failed. The ombudsman has analysed the reasons for this failure on the basis of information included in official announcements and as part of his comprehensive ex officio inquiry conducted in the wake of the 1998 minority self-government elections and concluded that the effective rules of law as well as some constitutional regulations are in many ways contradictory, a problem that can only be rectified via legislation.
III. Conclusions of the most important complaints submitted to the parliamentary commissioner for national and ethnic minority rights in 1998
Complaints filed against the police and other law-enforcement organs
Complaints against police misconduct The majority of the cases against the police involves forced action resulting in the limitation of the individual's personal freedom in the course of the criminal procedure, most importantly the mittimus and the detention of the plaintiffs. The plaintiffs, probably since most of them are detained in institutions related to the police, tend to hold the latter culpable for having ordered and implemented their detention, which is thought illicit as well as derogatory to the plaintiffs' rights. Complaints against such actions often share the view that the affected party's ethnic affiliations had played a role in the injuria - the cases submitted refer to the plaintiffs' Roma descent as the alleged cause of the arrest and subsequent detention. As our ensuing investigations many times fail to reveal any discrimination on ethnic grounds, we are unsure whether the plaintiffs really felt discriminated against due to their ethnicity, or only used the above reasoning as a foundation likely to produce a - for them - favourable judgement. Complaints against illicit detention ended in imminent dismissal in only few cases: where the plaintiff had been sentenced to imprisonment by a final court judgement. Pursuant to 29 § of the Act on Parliamentary Commissioner for Human Rights, the parliamentary commissioner is not to interfere with court cases - that is to say, there is no room for any measures or other action affecting a court judgement. Decisions of the courts of law require no comment from the parliamentary commissioner for national and ethnic minorities. Another group of complaints against the police includes cases of alleged ill-treatment of the plaintiff, his/her relative or other persons by police officers. Determining the kind of police procedure in the course of which the alleged ill-treatment, physical aggression, verbal threat or other form of infringement of the plaintiff's rights took place and the motivation thereof merely provides us with a legal category of the alleged criminal act, based on which misuse of authority by the police officers involved may be established: ill-treatment in office under 226 § of the Penal Code, or interrogation to force a confession under 227 §. In cases like the above the parliamentary commissioner initiates that the competent district attorney take penal action against the responsible individuals, without evaluating or commenting on the enforceable judgement. Scope of competence in this matter is decided according to the place of the alleged criminal act. The following procedure usually takes several months, and we are informed of the official results only afterwards. We note that the parliamentary commissioner for national and ethnic minorities is not empowered to investigate if the facts presented in the complaints received are true or false, but can only establish whether - based on the plaintiff's statement - the suspicion of an indictable offence emerges. We sadly report that in the latest period the parliamentary commissioner's office had to remit several cases to the competent district attorneys, partly based on the suspicion of interrogation to force a confession, partly due to alleged ill-treatment in office. The president of the Roma minority self-government in a small town telephoned the parliamentary commissioner's office and complained that two days before a thirteen-year-old had been beaten by the local police officer in order to force a confession from him. The president pointed out that the officer later admitted: he had mistaken the boy for another minor, who is indeed suspicious of having committed a criminal offence. As both of the youngsters involved were minors, the president believed the unjust suspicion and the maltreatment that followed were instances of ethnic discrimination. Based on the complaint, we initiated penal action via the competent district attorney. We also requested the district attorney's office to formulate its position on the matter and provide information on the course of action. The district attorney informed us that - based on the report denouncing the alleged criminal offence - the department of investigation of the attorney's office ordered investigation of the case to determine whether the suspicion of interrogation to force a confession had foundations. Having implemented the necessary procedure, the results were soon forwarded back to the competent district attorney with the recommendation to lay an indictment. Accordingly, the district attorney eventually brought in an indictment in the case against the police officer for the criminal act of ‘interrogation to force a confession', coupled with assault and battery'. The suspect was duly informed and advised that the verdict of the local court would be conclusive in his case. On another occasion we received a complaint about the plaintiff and his relatives having been stopped and asked to identify themselves with no good reason, then beaten with a baton and assaulted in other manners by police officers. The plaintiff attached clinical evidence of the injuries they suffered. Based on the complaint and the documentation, the suspicion of misuse of authority by the police officers emerged, therefore we decided to forward the letter and its attachments to the competent district attorney. Once again, we requested the district attorney's office to formulate an official position on the matter and provide information to us of the course of action. The district attorney informed the parliamentary commissioner for national and ethnic minorities that - following the supply of missing data for the report denouncing the alleged criminal act - the department of investigation of the attorney's office ordered official investigation of the case based on the serious suspicion of assault and battery in the course of an official procedure. The district attorney ordered the investigation to commence out of turn, without delay. We informed the plaintiff of the course of action in required detail. Yet another incident happened when - according to the plaintiff - the plaintiff was maltreated by the police after a fight broke out in the community centre of one provincial municipality area. The police officers arriving on the spot arrested the participants and closed the plaintiff in the boot of the police car to be carried to the local police station. In the course of the criminal procedure the plaintiff sought no legal remedy, however - after the verdict was delivered - his/her legal representative turned to the parliamentary commissioner for national and ethnic minorities and filed a complaint with reference to the permanent psychological damage that the plaintiff had suffered due to the manner of the arrest and subsequent transportation. Respective clinical evidence was also attached to the letter of complaint. We forwarded the complete documentation of the case to the competent district attorney for the necessary measures to be taken to determine if the suspicion of ill-treatment by the police officers was well-founded. In the lack of sufficient foundation of the suspicion, the department of investigation of the attorney's office refused the official investigation of the case filed against the officers alleged to have committed maltreatment in office, a criminal act described in 226 § of the Penal Code and in conflict with the same paragraph. The justification for the refusal pointed out that the alleged ill-treatment of the plaintiff by the police officers could not be established beyond reasonable doubt, particularly since the plaintiff had been actively involved in the fight that preceded his arrest; concerning the ensuing arrest, the officers had the right to use force in arresting and transporting him to the local police station. The district attorney's office also established that the plaintiff was indeed transported in the boot of the police car, however this became necessary owing to the large number of those involved in the fight, under arrest, and awaiting transportation to the police office. Although the mode of action chosen by the police may - in addition to the practical inconvenience caused - have implications connected to the issue of human dignity, this circumstance in itself does not constitute sufficient foundation for the suspicion of a criminal offence. The district attorney dismissed the plaintiff's appeal against the decision, and although the justification of the resolution described the mode of transportation used for carrying the plaintiff to the police station and pointed out that such treatment may indeed damage the individual's human dignity, it explained the dismissal of the complaint by declaring that since - due to the lack of factual evidence - no act of assault or battery could be established beyond reasonable doubt, the alleged case of criminal offence was ruled out. In our view however, the circumstances of this case were not investigated carefully enough by the local authorities for the following reasons: the respective decisions fail to establish the number of the police officers involved in the arrest, while the number of patrol cars at their disposal is equally unknown; similarly, the question whether it was indeed necessary and inevitable to "secure the suspects" against a general adverse feeling and the "danger of being lynched" also remains unanswered; likewise the one on the justifiability of keeping the plaintiff in the boot of the car on the approximately 30 km distance between the place of his arrest and the local police office. Consequently, we requested the Public Prosecutor to clarify the above and formulate his/her official position on the case. In a third category of the cases - which stands out and can be distinguished from the previous ones -unprofessional conduct by the police is alleged and criticised; such complaints usually claim that police investigations are defective. Frequently the police is criticised for not proceeding with due diligence or in an equitable manner (i.e. wilful disregard of certain mandatory measures or rules of the law, or other infringements) owing to the plaintiffs' Roma descent, by means of abusing some people's ignorance of their own rights and of the legal system. The following complaint is one filed precisely for the above reason: We have received information that the police, having searched the plaintiff's house, confiscated certain property, "objects that may under no circumstance be associated with any criminal offence"; subsequently, the plaintiff was carried to the local police office, interrogated as suspect, and finally put under arrest. The Roma plaintiff, who noted that he/she was a respected public figure, believed the action of the police to be both iniquitous and unfounded, and emphasised that they had caused him/her to lose face before the public. The parliamentary commissioner requested information from the head of the police office involved. The information revealed that the search of the plaintiff's house and his/her interrogation as suspect were lawful, likewise his/her subsequent arrest, because the plaintiff had in his/her home musical instruments and other objects of a considerable value that turned out to be burgled property. The public activity of the Roma plaintiff was unknown to the police; no importance whatsoever was attached to his/her ethnicity in the course of the police investigation. We informed the plaintiff of the facts that we established, and in the course of our personal meeting the plaintiff finally accepted our standpoint. Complaints against the organs of criminal justice administration Compared to our 1997 and earlier statistics, the number of complaints filed against the organs of criminal justice administration has increased: while between 1 July 1995 and 31 December 1996 we received four complaints altogether and in 1997 we had only two, the year 1998 saw seven of them, directly critical of the procedures of criminal justice administration institutions. Of course, we should be careful not to leap to unfounded conclusions based on this data. The bulk of those complaints we received against the practices of various criminal justice administration institutions were submitted by individuals that had been sentenced or by their relatives; in most cases, they criticised the present order of the administration of justice, cited cases of alleged misuse of authority by the staff of the institutions, rough treatment and inhuman circumstances. In these cases we also noticed that - beyond a number of specific grievances connected to their sentence - the plaintiffs complained about certain actions and instances of malpractice by the authorities (the police, the attorney's office, the court, etc.) they came into contact with prior to their conviction; many of them alleged discriminative or other kind of illicit action or failure to take the necessary action by the authorities. An individual has complained that, during their transportation from one criminal justice institution to another, he was several times hit by the guard for having spoken to his fellow-convicts. The plaintiff thought that this ill-treatment was due to his Roma descent. According to 137 § 1/k of the Penal Code, a regular staff employed by an institution of the administration of justice is regarded as a public official; thus, the subject of the complaint appeared to establish a case of misuse of authority conflicting with 226 § of the Penal Code. Accordingly, pursuant to our obligation under 24 § of the Obtv., we reported and remitted the complaint to the department of investigation of the Budapest municipal attorney's office, since the latter is empowered to order official investigation of the circumstances pursuant to the effective criminal justice legislation. A convicted person has complained that the cell he/she was inhabiting was detrimental to his/her health, dark and "totally unfit for prolonged stay by any human being". The plaintiff's situation was aggravated by a serious injury that he/she had suffered prior to the commencement of his/her prison sentence, which - according to the plaintiff - put him/her badly in need of an operation and hospital treatment. According to the plaintiff, his/her requests to improve his/her conditions and receive medical care were unjustifiably rejected by the institution, a decision lacking "even the minimal degree of human sympathy". We examined the above complaint and established that the cell inhabited by the plaintiff was - in accord with the certified statement of the health care service of the institution - indeed unfit for prolonged living. At the same time, we found that the plaintiff and many other convicts were being moved to other cells in different parts of the building, and normal living conditions were only a matter of the ongoing construction work. Here the suspicion of discrimination on ethnic grounds could be ruled out, as we established that neither were the differences between the convicts' quarters considered by the managers, nor the "better" or "worse" places allocated to one or another person on similar grounds. Concerning the individual's health problems, we found that the responsible manager of the institution instructed the medical staff to obtain the necessary clinical opinions. This fact appeared to be in direct contrast with the plaintiff's statement, moreover the clinical evidence convinced us that the operation the plaintiff requested would in fact have posed a much greater hazard to the patient's health than the improvement to be gained and expected in the case of successful surgical interference. Since we were able to receive admissible and reasonable answers from the institution concerned to all of our queries, it only remained for us to inform the plaintiff that his/her complaint against the institution proved unfounded.
Cases related to local governments
Introduction Based on over three years of experience of the parliamentary commissioner, we can state that the majority of the complaints submitted to the ombudsman for national and ethnic minority rights criticises the decisions of local governments, mayors and district administrators. However, before discussing certain specific examples that were selected on account of being rather typical, let us take a brief look at the underlying reasons as we see them. Analysing the development of the Hungarian local government system (which was organised simultaneously with the political and economic changes), we can state with confidence that the self-governmental structure created in 1990 has worked up to the most important initial expectations. The end of the council-system and the ensuing restructuring process were certainly not without difficulties, and some problems of the transformation are reflected in the administrative practice of the mayor's offices established alongside the municipal self-governments. Since 1990, the legislation has allocated an increasing number of - more and more serious - duties to the local governments. This effort was made conditional upon the concurrent supply of the necessary financial means and resources with respect to each and every duty item. The fact that it is precisely those financial means - or rather their absence - that hinder(s) the implementation of the local governments' duties holds true generally, and is voiced not only by external critics but by the local governments themselves. In the current situation these municipal organs must make up their own minds to establish an order of relative importance of their respective duties, causing a certain number of those duties to end up partially performed or falling through entirely. The state of affairs was made more grave by the structural changes in the economy in the past decade and the ensuing period of recession that plunged entire regions of the country into an underprivileged position in a combination of different ways. In certain areas - especially in the eastern part of Hungary - unemployment has set in; local taxes represent no viable alternative, while some of the local governments are so badly in need of funds that they grapple with their most basic duties to maintain the very institution. The struggling local governments were struck by yet another blow in 1994-1995, when the system of minority self-governments was created. The operating expenses of the first minority governments had to be covered by the municipalities, and although such surplus costs could be claimed from the central compensation fund, there were some that failed to benefit from this for lack of information due to negligence. The rules of law today require the municipalities and the minority self-governments to conclude a co-operation agreement, which prescribes the extent and utilisation of the assets separated for use by the minority self-governments. Budgeting, that is to say the allocation of the available funds is often a major bone of contention: frequently opinions as to the objective and reasonableness of the utilisation of the funds differ. 102/C § of the Act on Local Governments makes it possible for the body of representatives of a local government to transfer - if it so wishes - a number of its functions to the local minority self-government. In practical terms, such a transfer of activities may entail essentially two problems: one that almost never fails to provoke debate is whether the funds allocated for the duty/task to be transferred are indeed sufficient for that duty/task to be implemented; the other implication is - and this is indeed very often ignored - that the law does not allow those powers of a local government that are connected to its scope of authority or to public utilities to be transferred to the minority self-government. We are convinced that the self-governments of the Roma minority should be allowed a word in the allocation of social aid for the Roma. According to the decision of the body of representatives, the right of comment and consent/consultation may be exercised in the present legal context, however the issue remains a fundamental duty of the local authority which should not be entirely passed on to the minority self-governments, irrespective of any mutual agreement between the interested parties. There have been some typical complaints connected to the activity of district administrators and mayor's offices in charge of various duties in the scope of competence of the local government. A variety of procedures - related particularly to construction permits, certain types of inspection or supervision activities, etc. - seem to "invite" the indirect forms of discrimination. The anomaly here lies in the latent appearance of ethnic bias: it may lurk behind the request of a minority applicant being refused with reference to some existing regulation or established practice that constitutes a legal obstacle in the way of granting the request. Such secret motivation is indeed very difficult to bring to light and prove beyond reasonable doubt. The solution may be to inquire into a selection of "control cases", when a similar application submitted by a non-minority client is approved by the same authorities, e.g. is granted the requested construction, entrepreneurial or other permit. A further important category of grievances can be identified by looking at the administrative practice and the procedures of mayor's offices. People often turn to the minority ombudsman to complain about not being treated with due attention or supplied with the necessary information; claims from members of a minority are not always dealt with properly, and the dismissal is not usually provided in a written form. In such matters the parliamentary commissioner invariably examines compliance with the Act on the General rules of the administrative procedure, and whether the right to legal remedy of the client was respected by the municipal authorities.
Competence of the local governments and the minority self-governments As we have indicated above, the Act on Local Governments allows the body of representatives of a municipality to give up some of its functions and transfer the associated duties and tasks to the scope of competence of the local minority self-government. At the same time, there are some special regulations included in the same act of law that prevent minority governments from exercising the powers of an authority. The body of representatives of the local government must determine and lay down in its bylaws which of its functions and activities it wishes to renounce and assign to the minority self-government. (In an ideal case, the latter follows suit to include its newly acquired functions in its own statutes.) Furthermore, it is reasonable that the parties conclude a separate contract on the most important principles of exercising the transferred functions, along with other details of the transaction, for example the parties' agreement on access to the related funds, the utilisation of the available resources, schedules and deadlines, as well as the event of withdrawal of the allocated functions. In 1998, for instance, an attempt was made to transfer a number of social functions from the local government to the minority self-government representing the interests of the underprivileged Roma population, and appropriate funds for use by them - without formal transfer of the responsibility and direct access to the budget - to mitigate the social disadvantage of the local Roma community. However, the Act on Local Governments excludes any title, form and method by which a minority self-government can allocate aid or any other form of support provided to the needy under the social welfare legislation. The practical solution of inviting a member or members of the local minority self-government to participate in the work of the municipal social, health care or public welfare committees, or even to form a sub-committee to assist in the preparation of decisions is by all means unobjectionable. In this way we can ensure that, prior to its decision, the body of representatives or the committee of the competent local government consider the judgement and opinion of the minority representatives, who have a much better knowledge of the living conditions of the local Roma families.
Complaints against municipal decisions (by the mayor) With few exceptions, the complaints addressed to the parliamentary commissioner for national and ethnic minority rights mention the unfavourable changes that have happened in the social situation, criticise the attitude and indifference of officials, and paint an indeed bleak picture of a future with no perspectives. There is, however, one great difference in the contents of earlier letters and the ones we now receive: we have encountered many reports on the termination of the plaintiff's employment contract, anomalies related to the disbursement of the unemployment benefit and other pecuniary assistance, as well as cases of admission related discrimination, where the plaintiffs suspected their ethnic affiliations to have caused the grievances, annoyance or damage they had suffered. Luckily, such wrongful acts were seldom reported in 1998, on the other hand recently we have had a higher percentage calling our attention to alleged infringements in relation to child care benefits, which - on certain conditions - have been disbursed to the beneficiaries on their own right (statutory child care benefit) since 1997. Act XXXI/1997 on the Protection of Children and Guardianship Administration provides permanent support to impecunious families with children under eighteen years of age. The considerable child care allowance per minor is disbursed on a regular, monthly basis to benefit families whose per capita income remains below the bottom line of the old-age pension. Of these - unfortunately rather characteristic - complaints awaiting remedy by the minority ombudsman, the majority originates in substandard living conditions, barely reaching or below subsistence level. These letters are written by people that are struggling to survive, very often with several children, on welfare, or - just a bit better off - on disability pension. Following previous information, these petitioners might have expected as assistance a larger, monthly sum that would regularly help them with their families' sustenance. An unpleasant surprise for them was that certain local governments in charge of the disbursement - choosing a lawful alternative - decided to replace the money with various allowances-in-kind. As a matter of fact, the above-cited paragraph of the Act on Protection of Children quotes the example of using the (regular or one-time) child care allowance to pay for the children's course books and other items necessary for school, or covering school children's dining costs. Practice followed two courses - in line with the new legislation: in certain places the families received the child care allowance in the form of tokens with which they could only buy basic food products in the indicated food store(s), or alternatively, the beneficiaries could settle the costs of meals taken by their children in the school or kindergarten. (Of course, combinations of the two methods were not infrequent, causing many recipients to feel cheated in some way or another.) Before the introduction of the statutory child care benefit, the local governments used to assist the most deprived by both regular and one-time forms of aid, in addition to assuming the costs of the school children's day-time meals. After the enactment of the new legislation, however, these types of support have been substituted for the child care benefit in most places. The new system, i.e. that of the statutory child care benefit - which may be expended for specific purposes related to children's welfare -, was designed to support families with children in need of financial assistance, and it observes the provisions of the Act on Protection of Children in all respects. Therefore, we can only initiate the modification of the established practice with reference to specific cases where the interests or rights of Roma families can be proved to have been negatively affected. In a small provincial settlement in the north-eastern part of the country the local mayor is the owner and sole operator of the only general store. As the local government decided that the child care benefit should take the form of allowance-in-kind, the beneficiaries could only shop with their food tokens at the mayor's food store. The mayor even offered them a special arrangement in the form of "hire purchase" to the extent of the benefit: in this way the Roma customers could do their shopping and the bill was settled only at the end of the month - by the mayor himself/herself, who is also the person in charge of the disbursement. In practice this meant that the plaintiffs only received the sum remaining after their "debts" have been subtracted, a procedure leaving most of the "debtors" with no benefit to be paid to them at all. Meanwhile, no more money was ever due to the mayor, who knew precisely how much he/she should let the plaintiffs spend. The plaintiffs argued that the shop was expensive, and that they could have bought the food they needed more cheaply from other stores in the neighbouring villages if only they were able to break out of the vicious circle of indebtedness. We deemed the situation anomalous for a number of different reasons: first of all, the disbursement-in-kind of the child care benefit was objectionable in itself considering that a single shop was given the chance to monopolise the business of acceptance of the tokens; our doubts were only further increased by a local official being directly interested in the pricing policy of that business. Therefore, the parliamentary commissioner for national and ethnic minority rights initiated that the local government involved should change the mode of payment of the child care benefit as well as other welfare related assistance. As a result, as of 1 January 1999 the beneficiaries have been receiving cash payment by postal delivery, so that they have - if only theoretically - the opportunity to do their shopping elsewhere. We hold the view that child care benefits should be fully converted to allowance-in-kind exclusively if it can be guaranteed that the supposed beneficiaries are not in fact disadvantaged by the mode of disbursement, and if their rights are not impaired by being driven to shops applying high margins. We must ensure that the families that we are helping can choose the shopping outlet with the best offers. If we can guarantee that, we can make sure that they will not feel wronged and exposed to society. We are determined to make our best efforts to have the local governments understand this anomaly and change this objectionable practice. Recent experience has shown that many confront the dismissal of their applications for (either regular or one-time) welfare aid by referring to the discriminative practice of the competent authorities, i.e. the local government or the mayor that judges the applications. Once again, these kind of complaints are more often than not filed by Roma plaintiffs, shedding light on the Roma minority's peculiar problems. In the majority of the cases, once again, we could not confirm the suspicion, while in some other instances "only" indirect forms of discrimination against the members of ethnic minorities emerged. For the most part, we established that the local governments were indeed in a difficult position in trying to respond to so many different needs. The municipalities are allocated relatively small amounts per family and per annum to provide for those in want of assistance, which cannot in the long term effectively alleviate the problems, while it certainly cannot be expected to prevent the downward movement of these layers of society on the social ladder. The reason why people turn to the parliamentary commissioner for national and ethnic minorities is that they have no hope left in their local governments. (Or rather: the means of the local governments are simply insufficient to help the poor; they are ineffectual not only in the case of the poverty-stricken Roma minority but also in that of other, non-minority help-seekers.) Most of the complaints we receive are well worth our attention, especially since the plaintiffs are often persons that do not know their own rights and opportunities, people that are convinced that they suffer discrimination and social injustice because of their ethnicity. But - and our experience justifies that - if we are willing to give detailed information and consider the particulars of a case (for example, the reasons for rejection or dismissal), we can provide these individuals with a chance to get to know the regulations and the procedures so that they no longer feel vulnerable and defenceless. For these reasons we do not plan to change our practice of handling the complaints. We consider it our responsibility to attend to such problems, with special regard for the immense comparative disadvantage of the Roma minority.
Complaints against the activity of the district administrator In the chapter on issues related to the local governments we mentioned that a separate section would be devoted to cases connected to the activity of the mayor's offices and the district administrators. Throughout the past year respect for the latter profession seemed to gradually increase, and many admit that without these "general administrators" the local government system might not have become so successful. It is a clear and vital interest of all citizens, municipal representative bodies and their officials to have a high-level system of such professionals to rely on. Notwithstanding, the situation is not at all problem-free, and this is reflected by the complaints submitted to the parliamentary commissioner for national and ethnic minority rights in 1998.
Inquiries into cases of discrimination in relation to public services in the scope of authority of the local government The parliamentary commissioner for national and ethnic minority rights was informed on an open day held in a town in Jász-Nagykun-Szolnok county that the local government had removed a drinking fountain from a street inhabited by the Roma community and the people had to carry home the drinking water from a distance of three to four kilometres. Since the entire street was inhabited by Roma families, none of which had running water in their house, the plaintiffs supposed that the decisions of the local government related to the development of the public utility system were discriminative. We initiated an inquiry by the district administrator to determine whose decision it had been to remove the town's drinking fountains and whether the local government itself was responsible for the community's supply of healthy and safe drinking water. Our objective was to establish if the local government had acted in observance of the provisions of the government decree on the nation-wide organisation of settlements and the relevant construction requirements, with special regard for its obligation as per 8 § (4) of the Act on Local Governments. The above-referenced decree provides that, if drinking water is necessary for the appropriate operation of a building but there is no running water supply, a well or drinking fountain on the estate supplying water of drinking quality or any other source of drinking water in a walking distance of maximum 150 meters shall be deemed to suffice. The district administrator informed the parliamentary commissioner that the town's supply of running water was ensured by regular public utility service, anybody could be connected to the mains and thus access to safe water was guaranteed. Consequently, the local government could not be obligated to operate drinking fountains within a distance of 150 meters. In answer to our question, the district administrator pointed out that the local government was not responsible for the town's water supply: the drinking fountains were removed by the supplier, an independent enterprise, with the prior consent of the mayor and in compliance with the relevant regulations. The inquiry also revealed that a source of drinking water could be found in a distance of 200 to 300 meters from certain houses of the street inhabited by the Roma community - in about 600 meters from the home of the plaintiff. The local government paid the costs of these drinking fountains to the supplier company, in line with the effective rules of law; those benefitting from this kind of supply received the water free of charge and incurred no expenses. The inquiry concluded that the local government acted in compliance with the legal provisions relating to healthy and safe drinking water supply; no discriminative conduct was observed. Plaintiffs from another district of the same town complained that their living conditions and state of health were affected by the open-system waste water basin in approximately 100 meters from their homes. They explained that the smell was quite unbearable in any season, but grew even worse in the summer; if the wind blew from the direction of the water storage, it was impossible for them to air the rooms, etc. The inhabitants criticised the constructor of the site as well as the authorities that had issued the building permit for leaving the living conditions and interests of the Roma inhabitants of the neighbourhood out of consideration. We contacted the local mayor to find out when the sewage basin was built, what kind of plan documentation had been prepared, and who the operator was. Following our enquiry, the mayor informed us that the storage was owned by a local company, which served some of the homes and several institutions and created the basin for recycling the waste water produced by the local system. Having studied the plan documents, we established that the recycling premises had been set up more than ten years before the street where the plaintiffs now lived was constructed. The regional development plan of the town was under review, and the sewage plant was to be relocated. The mayor explained that - based on the approved structural drawings - they had submitted a joint proposal with the neighbouring village for the creation of a new, high-capacity sewage system and waste water plant which would alone be capable of serving both settlements. Under the new arrangement, the recycling plant was to be created approximately five kilometres away from the boundary of the town centre. With these conclusions we closed the inquiry and informed the plaintiffs of the facts that we established. We reassured them that the Act on the Development and protection of the constructed environment guaranteed the citizens' right to comment on local construction regulation and regional development plans. We emphasised that they should not refrain from commenting on the future location (i.e. the distance) of the sewage basin, should voice their interests and submit comments to the local government already in the planning phase.
IV. Cases of discrimination against the members of national and ethnic minorities
Discrimination in public services (public catering and trade services, etc.)
General features Discrimination in the area of public services, especially in catering outlets and shops, may be justifiably called the most brutal, and as such the most dangerous manifestation of ethnic bias. The danger mainly lies in the fact that the act of discrimination - in most cases the refusal to provide some service to a member of a minority group - is committed in places open to the general public, expressly on account of some characteristic feature of the plaintiff.
The legal framework of the fight against discrimination; Legislative prospectives The international and Hungarian technical literatures alike have put great emphasis on the fight against discrimination and the relative means of law enforcement. International law expressly prohibits all forms of discrimination - especially discrimination on account of race or ‘colour of the skin' -, and this prohibition is an integral part of nearly every generally ratified international legal document. Thanks to integration, this principle has been adopted by and included in the constitution of almost every state that has endorsed the fundamentals of international law. 70/A. § (1) of the Hungarian constitution adopted the literal text of the declaration of international norms on the general prohibition of discrimination; meanwhile, 70/A. § (2) explicitly declares that the law "rigorously penalises" any and all forms of discrimination. Opinions differ on how to eliminate the gap resulting from the lack of sanctions, and how to enforce the constitutional requirements. One view holds that complex anti-discrimination laws are needed, in similar spirit to the 1976 Race Relations Act or the Dutch Equal Treatment Act. It is worth mentioning that both of the above-referenced laws explicitly deal with the prohibition to refuse any public service on account of racial prejudice. According to another opinion, reasonable and proportionate sanctions should complement the existing anti-discrimination provisions included in the constitution and the rules of law. In addition to the Constitution and the Act on Minorities, the following rules of law include provisions related to the refusal of public service on account of racial bias:
The difficulties of evidence in cases of ethnic discrimination As in almost every case of discrimination, it can be extremely difficult to prove the racial motivation behind a refusal to provide a service. One can most of the time only rely on the accounts of the plaintiff and the witnesses (if any) in deciding whether an act of ethnic discrimination has really been committed. In the bulk of the cases, however, the offence or manifestation of racial bias takes place without witnesses. In a provincial town, a restaurant owner refused to serve a Roma customer. The owner explained the rejection by saying that the whole restaurant was reserved for a family event. At the same time, the plaintiff noticed that other persons, known to him/her, were admitted, and understandably assumed that he/she was rejected because of his/her ethnicity. Unfortunately, we have information of several other cases when Romas, or others that were assumed to be Romas, were refused service in pubs and restaurants; the offenders typically excused themselves by saying that the place was full or that "membership" was required. In cases like the above finding sufficient evidence is many times impossible, or else the competent authorities might not be adequately prepared to investigate. A useful suggestion more often appears in legal literature: the onus probandi should be charged on the accused party, so it is the accused that must justify the refusal. Precedent in Hungarian law for the reversal of the onus probandi can be found in 5. § of the Labour Code. In fact, literature suggests the similar adoption of that rule by other branches of jurisdiction.
The ombudsman's specific means of action The main duty of the parliamentary commissioner for national and ethnic minority rights is to supervise the activities of the state administration, the authorities and other organisations in charge of a special public duty. The question arises: is the ombudsman entitled to act if minority rights are infringed not by a - strictly speaking - public service provider (e.g. the water supply or gas company) but by a private individual or business? In our view the very fact that conducting a public catering activity is subject to a permit by the authorities - and under such obligation it has to comply with certain legal requirements - proves that this kind of business cannot be regarded as confined to the operator's private domain. Consequently, the ombudsman is - if not directly (via the district administrator and the customer protection authority) - entitled to take certain measures. Indeed, the parliamentary commissioner must examine each and every complaint submitted to his/her office, and in the event he/she finds that some constitutional rights might have been infringed and he/she is not entitled to investigate, then he/she may remit the case to the authority in charge. In most cases this means simple forwarding, but in 1998 we introduced a new element: together with the remittal, we specifically request the authority to investigate the case and inform us of its findings. In discrimination cases we turn typically to the competent district administrator, as it is he/she that issues the operation permit and is entitled to check compliance with the legal requirements. Furthermore, the district administrator is empowered to temporarily close the business that was found to have violated the law or even withdraw the operation permit. However, district administrators have proved to be rather passive: in most cases they simply questioned the accused party (owner of the business) that, of course, denied the allegation. District administrators ought to perform thorough investigations, using the appropriate tools to find out the truth. The Act on General rules of the administrative procedure provides that the administrative organ enforce the rights and obligations guaranteed by the law, and defines this duty not only as a principle but as a requirement - it specifies the need for the investigation of cases under 26. §: "The administrative organ shall establish the facts necessary for a judgement in the case." The same obligation holds valid for inspections by the authority - 54. § provides: "The provisions of this Act shall apply to inspections by the authority, with the alterations specified in this chapter." (That is: the administrative body shall investigate and elucidate the matter not exclusively for the purposes of the judgement.) 26. § continues as follows: "If the data available is found insufficient, the administrative organ shall - ex officio or upon request - conduct a justification procedure." Thus, considering the regulation in its entirety, we can justifiably expect that the district administrator officially investigate the complaints, using the appropriate tools to reveal the truth of the matter.
The importance of the consumer protection authority's procedure It happened the first time in 1998 that we initiated a procedure via the consumer protection authority. The authority proved to be co-operative and helpful, and provided us with a comprehensive view of the relevant facts. A Roma minority self-government has complained that Romas were not admitted to the pub in the centre of the town. At our request, the county-level consumer protection authority, together with the Roma minority self-government, organised a mock purchase involving Roma customers in order to prove the act of discrimination. Subsequently, the authority made a precedential decision:
In legal terms, the importance of the above decision is high-lighted by it being based not only on the Act on the Protection of consumers but also on 3. § (5) of the ARNEM, which has enacted the prohibition of discrimination against the members of minorities. The procedure of the consumer protection authority creates a precedent as, even though it did not go beyond the obligation to investigate the direct infringement, it has applied an indeed effective method (mock purchase by the Roma customers) to reveal a case of discrimination for the first time in Hungary.
Discrimination in employment
The general features of discrimination in employment: the hypothesis behind the ombudsman's enquiry and the legal background In 1998, similarly to previous years, almost all of those that submitted a complaint related to discrimination in employment were Romas. Another feature of the complaints we received alleging discrimination in this area was that the number of the reported cases remained far below our assumptions (unfortunately, this appears to be a much too common phenomenon). The relatively low number of complaints may well be explained by the fact that the majority of discriminative acts simply never surfaces. The high degree of latency is due to two main reasons: firstly, that job-seekers are vulnerable and unwilling to jeopardise their chances by confronting their would-be employers; secondly, discrimination is most frequent against members of a social stratum that has little ability to defend its rights. Our experiences clearly show that the victims of discrimination rarely have any knowledge of the fora of legal remedy or are reluctant to employ them. Therefore in 1998, we did not confine ourselves to the investigation of individual complaints but attempted to prepare general proposals to help uncover a greater proportion of acts of discrimination in employment and, of course, reduce the number of such cases. To unveil the causes of discrimination in employment and prevent such offences, the parliamentary commissioner for national and ethnic minority rights started a comprehensive enquiry ex officio in the spring of 1998. Our primary objective was to determine whether the present anti-discrimination legislation and the common procedures of the competent authorities were adequate to provide maximum protection against discrimination, to effectively reveal any offence, to exercise control over those legal relations that are most susceptible to discrimination, and finally to penalise offences and remedy the rights injured. First of all, we checked the legal framework, the practices and the registration systems of labour centres - including the registers themselves, the forms etc. used - and mapped the relevant interrelations between the authorities. As opposed to 70/A. § (1) of the Constitution, the Government Decree on Misdemeanours directly penalises discrimination in employment and, in addition to the general ‘misdemeanour authority' (i.e. the district administrator), the labour safety and management authorities (hereafter: ‘labour authorities') are also entitled to prosecute this kind of misdemeanour. Furthermore, 5. § of the Labour Code also forbids discrimination in employment - a regulation to be enforced by the labour authorities. Not only can the latter act as a ‘misdemeanour authority', but they are also entitled to impose administrative penalties of 50,000 to 1,000,000 Hungarian forints. The above provisions may suggest that everything goes fine on the labour discrimination front, that the legislative and the state have made their best efforts to provide the authorities with adequate means of action to fight and to prevent cases of discrimination. Our enquiry, however, has revealed that the apparently grave and theoretically deterring sanctions do not seem to have much practical impact. Striking as it may be: neither in the year of the inquiry nor before was any investigation carried out in connection with ethnic discrimination in employment or labour authority penalty imposed for such an offence! A comparison between the existing legislation and sociological statistics may lead to either of the following conclusions: one - that no discrimination related offence was committed in the given period, and therefore no counteraction was needed; two - that, because the problem remains latent for most of the time, the competent authorities could not gain cognisance of individual offences (or might it be that, though aware of the general phenomenon, they ignored the evidence on the official stage?). Well, our enquiry seems to support the second: we established that there is virtually no communication between the chief organs of labour administration (i.e. labour centres and the county-level labour inspectorates). A definite shortcoming of the legislation is that while the labour inspectorate may only start an investigation if the plaintiff complains in person, the local branches are not entitled to take action.
Specific proposals included in the ombudsman's report Based on the findings of our labour discrimination enquiry, we have prepared eleven proposals - partly for the legislative purpose, partly for the organs of law-enforcement. The nature of the issues has required that we address most of our proposals to the minister for the families and social welfare, in charge of labour administration. Other proposals were addressed to the minister of justice, in charge of preparing the relevant Bills, while the legislative ones were submitted both to the minister for the families and social welfare and the minister of interior affairs.
Proposals to the minister for the families and social welfare Most of our proposals to the minister for the families and social welfare were welcomed and the minister assured us in his letter that he would support our suggestions to be put into practice. This was undoubtedly a success. The parliamentary commissioner for national and ethnic minority rights requested the minister for the families and social welfare to provide for the preparation and publication of a bulletin informing the employees of their rights and the forum they can turn to if they suffer discrimination. We also requested the minister to provide for the collection and processing of information on discrimination in employment. The minister for the families and social welfare accepted both of our proposals and agreed to prepare an unified information bulletin on legal remedies for cases of discrimination in employment. The minister also agreed that discrimination data should be collected and processed but pointed out that, in his view, data collection could not be ensured simply by working out a procedure plan - the issue should be regulated as a complex problem that arises in connection with vacancy reporting. In summary, we deem the acceptance of our proposals against discrimination in employment very important because the collection and processing of data on negative discrimination may help not only the orientation and decision-making of the ombudsman but also the work of the administration and the legislative. An essential proposal of ours to the minister for the families and social welfare included that the ministry should initiate the amendment of some employment related rules of law to the effect that the law-enforcement organs be clearly aware of the following:
In the core of our legislative proposal is the idea that violations could be retaliated not only with fines, but with other sanctions of a preventive force. Such an alternative punishment may be, for instance, the withdrawal of government subsidies from employers that were found guilty of discrimination. We proposed that the minister for the families and social welfare initiate amendment of the legislation on employment support subsidies and employment crisis subsidies to the effect that employers fined for discrimination could be deprived, for one year, of the subsidies they are otherwise entitled to. We are pleased to report that the minister for the families and social welfare accepted our proposal.
Proposals to the minister of justice Our enquiry into discrimination in employment has resulted in proposals to the minister of justice. These proposals are aimed at the acceleration of the anti-discrimination procedures and the introduction of special penalties. As we have mentioned, the primary target of discrimination in employment is the Roma minority. It is by no means an exaggeration that victims of discrimination with resort only to civil trials, with no legal representation and burdened with the onus probandi are in a virtually hopeless situation. Therefore we proposed the amendment of the Code of Civil Procedures Act so that cases of illegal refusal of employment could be heard in summary procedures and employers be required to justify the rejection of the job-seeker. Furthermore, we proposed that the legal remedies for the violation of personal rights (establishment of the fact of the violation, prohibition of violation, obligation to redress, damages) be applicable in such cases, as well. The ministry of justice accepted our proposals only in part. The officials of the ministry informed us that a comprehensive revision of the Code of Civil Procedures was soon to begin and, concurrently, proposals will be prepared on the enforcement of the prohibition of discriminative refusal of employment. We were also advised that the amended 349. § (2) of the Code of Civil Procedures extended the domain of labour suits to include claims based on negotiations prior to the conclusion of the employment contract. Thus, a regulation unfavourable for the job-seekers was removed. As a result of the amendment, the regulations serving the protection of employees (reversal of the onus probandi, hearing within fifteen days etc.) shall be applied as of 1999 to cases of discriminative refusal of employment. Hopefully, the new provisions of the Pp. will enable the employees/job-seekers to more effectively protect themselves vis-?-vis discriminating employers. (We must point out that discrimination in employment cannot be eliminated simply with legal tools, however we are convinced that the number of cases can be dramatically reduced in this way.) Another important requirement is that legislators have more accurate information on the true extent of this latent social problem so that they could more easily work out the necessary organisational or legal measures. A good start on the above-described path would be the collection and processing of court-room statistics on discrimination in employment.
Illegal job advertisements In this chapter we shall discuss the problem of discriminative job advertisements. Several job advertisements were published in 1998 that - generally in a concealed way but sometimes openly - excluded some strata of employees (e.g. women, Romas, those over a certain age etc.). The advertisement daily ‘Expressz' published the following job advertisement in its copy of 8 July 1998: "White, abstinent bricklayers and hands are urgently needed." The advertiser made it clear later in a radio interview that by "white" he meant that no Romas were required. In his ex officio investigation, the parliamentary commissioner for national and ethnic minority rights determined that the text of the job advertisement violated several Hungarian and international rules of law. Upon our notice, the managing director of Expressz Publishing Co. informed us that he/she expressly warned his/her employees to observe the company's statutes, which state that: "It is forbidden to negatively discriminate against private persons on account of their sex, race, nationality or religion, and to publish advertisements violating personal rights or rules of law or offending general ethical principles." The parliamentary commissioner proposed to the Labour Safety and Labour Inspectorate of the Budapest Labour Centre that it determine the identity of the advertiser and start an investigation on account of violation of national and ethnic minority rights. Although the chief inspector did not dispute the discriminative intentions behind the advertisement, he/she refused to investigate saying they could only act upon private complaint (and thus not upon proposals by the parliamentary commissioner). In connection with this particular case, we established the fact that - because of shortcomings in the relevant legislation - there is no such administrational means as would be necessary to act against publishers of unconstitutional advertisements. Therefore, the parliamentary commissioner for national and ethnic minority rights recommended the minister of justice to consider the preparation of rules of law on procedures and sanctions against publishers of unconstitutional advertisements. In his reply, the minister of justice agreed with the necessity of revising whether the misdemeanour law can adequately eliminate discrimination in employment, and - in theory - agreed with an updated re-codification of the misdemeanour of illegal advertisement. He also informed us that he remitted the case to the minister of interior affairs, who - according to the administrational task scheme - is primarily competent. More than six months have passed and we have received no official reply from either of the ministries. With reference to the above and the provisions of 26. § of the Act on Parliamentary Commissioner for human rights, the Ombudsman for national and ethnic minority rights will refer the case, as part of this report, to the National Assembly. In summary, the classification in Hungarian law of illegal advertisement as misdemeanour - as such acts may be committed not only by businesses and legal entities - is desirable.
V. Joint declaration on the so-called "certificates of ethnicity" In spring 1998, the chairperson of the Office for National and Ethnic Minorities requested the parliamentary commissioner for national and ethnic minority rights and the commissioner for data protection to issue a joint declaration on whether a Roma self-government's practice of issuing "certificates of ethnicity" to natural persons is in conformity with the law. The request was accompanied by a document containing personal data, a photograph identifying a natural person and a declaration, signed by the deputy chairperson of the minority self-government, certifying that the said person was of Roma descent. In the eyes of the layman or a non-Hungarian not adequately acquainted with the law of this country, such a "certificate" might seem to be an official document prepared as an extract from an official database. Our inquiry revealed that the above practice was rather widespread among the Roma minority self-governments. The applicants needed the certificates because they hoped the documents would improve their chances to receive a positive answer from the Canadian aliens' office to their immigration requests. In this report we do not intend to discuss the question why the number of Hungarian Romas wanting to emigrate to Canada has risen during the past eighteen months; nevertheless, we would like to remind the reader that - as was pointed out in the parliamentary exposition of our report last year - nobody is persecuted in Hungary on the level of government politics because of their ethnic or political affiliations, and therefore there is no practical reason to accept Hungarian Romas in Canada as political refugees. After the conclusion of their joint investigation, the parliamentary commissioner for national and ethnic minority rights and the commissioner for data protection pointed out in a joint declaration that no minority self-government is entitled to issue seemingly official certificates on national or ethnic descent. At the same time, they described the situations when district administrators or notaries public may, if certain requirements are met, prepare official documents certifying that some individuals - exercising their right to assume and declare identity - made a declaration before them on being the members of a minority. The joint declaration also defines the cases and forms in which minority self-governments, minority parties, cultural associations or social organisations may issue membership certificates for their members or representatives, containing an allusion to the latter's ethnic descent.
Issues of ethnic minority education in 1998
The 1997 survey of the national education system: initiations, recommendations and conclusions In early 1998 we published our report on the status of ethnic minority education. The comprehensive survey included analyses on kindergartens, primary schools and elementary education, discrimination, the issue of financing and course book supply, as well as teacher training and further education for teachers. Our objective was to answer the question whether education related legislation was in conformity with Hungary's Constitution and the Act on national and ethnic minority rights. In addition, we sought to check if the right to cultural and educational self-government of the national and ethnic minorities was observed in the course of legal proceedings and whether ethnic discrimination existed in the education system. As the report shows, the inquiry revealed both legislative and executive types of anomalies, to which the parliamentary commissioner reacted with the following recommendations and initiations - the minority ombudsman requested that the minister for culture and education:
In response to the above request, the minister for culture and education dismissed the proposal on the Act on Public education to define negative discrimination in education, the method of uncovering cases of discrimination, as well as the mode of proving discriminative action and employing the necessary sanctions. The minister explained that the regulation of these questions did not belong to the issue of public education, and the existing procedures currently in effect provided sufficient guarantee for the elimination of abuses. Meanwhile, he agreed that the detailed requirements of national and ethnic minority education should be published as soon as possible. The minister also agreed on the necessity of organising the nation-wide professional (pedagogic) services prescribed by the Act on Public Education; furthermore, he proposed that the minority self-governments create a responsible institution that the minister could rely on in connection with these issues. With respect to the next item on the request list, the answer pointed out that the minister for culture and education had no power to start an inquiry to establish the number of Roma absentees from kindergarten education. Such a survey appears all the more infeasible, says the answer, since there are no separate statistics on the Roma population in this matter. To solve this problem, the administrative bodies entitled to inspect whether the district administrators perform their duties as prescribed by the Act on Public Education should start inquiries. The minister made it clear that the minister for culture and education was not authorised to commence a nation-wide inquiry to eliminate discrimination from the public education organisation practice, only to order a professional survey on a regional or national level, as the case may be, and that such a survey was indeed necessary. Meanwhile, the minister accepted the proposal that - in co-operation with the Ministry for Culture and Education - the administrative bodies organise training programmes for minority self-government representatives and public employees in charge of public education. Subsequently to endorsement, the minister for culture and education contacted the minister of interior affairs, and the idea of the training courses materialised in 1998. Based on the conclusions of the education survey, we requested the State Audit Office to subject the legislative and executive practice to examination to reveal any anomaly connected to the usage of the complementary normative subsidy for the national and ethnic minorities, and propose amendment of the law if and as necessary. The President of the State Audit Office responded positively to our initiation and moved that the approaching examination of the utilisation of normative assistance give priority to the issue. The parliamentary commissioner for national and ethnic minority rights will be informed of the findings. The president of the Office for the National and Ethnic Minorities accepted our proposal to prepare a programme for more effective opinion and information exchange between the government and minority self-governments in order that the representatives of the latter can improve their knowledge about their minority education rights and the modes of exercising those rights, and participate in training courses on minority education issues. According to the president, the submitted materials contained important principles along which the present system of minority education could be improved. In addition, they informed us of the professional training courses the Office had organised lately in co-operation with other institutions for the representatives of minority self-governments. Yet another successful proposal has been addressed to the manager of the Municipal Administrative Office in Budapest and its counterparts in the counties, in which we had urged the administrative offices nation-wide to pay special attention to their employees observing the rights of national and ethnic minorities in the area of professional training and further education. Without exception, the managers concerned accepted co-operation with us: they reported that they found the implementation of the above both timely and important, and promised to work out programmes with a view to the training of minority representatives after the self-government elections. Concurrently, we received information on the courses they had organised in the recent past.
Professional co-operation based on the conclusions of the education survey Professional consultation began with the Ministry for Culture and Education on the issues discussed by the education survey. The meetings proved successful as all misunderstandings were eliminated and our points clarified. The work continued after the parliamentary elections, and the new minister for culture and education invited the parliamentary commissioner for national and ethnic minority rights to contribute his comments to the review of the public education legislation. Based on the invitation, we drew up a list for consideration, connected especially to the conclusions of the survey - the issues awaiting resolution are as follows:
We are pleased to report that the above list helped to lay the foundations of professional communication between the responsible representatives of the Ministry for Culture and Education and the parliamentary commissioner for national and ethnic minority rights, and our talks benefit from a good, constructive spirit.
Impacts of our survey on minority education The survey initiated by the proposal to improve the status of minority education has been assessed by the Committee for the National and Ethnic Minorities in Hungary, which is a body of experts that prepares decisions, contributes comments and makes recommendations to the minister for culture and education in minority issues. (Minority self-governments nation-wide delegate one member to the Committee, respectively.) The Committee for the National and Ethnic Minorities in Hungary held the view that the survey commissioned by the parliamentary commissioner for national and ethnic minority rights was "the first official report that discussed the problems of minority education openly and constructively". On the whole, the Committee declared the report "very helpful" and - among others - based its proposals on its findings and conclusions. It is important to note that the proposal for the amendment of the government decree on a package of medium-term measures for the improvement of the status and living conditions of the Roma population is now tabled by the Government. We have received the green paper, which also includes the minority ombudsman's proposals regarding the education of Roma school-children. The justification of the proposal to modify the law points out that the issues awaiting regulation were promoted by the survey on minority education, calling the attention of the Government to these questions.
Minority legislation de lege ferenda The Anti-discrimination Act and other alternatives The period of time that has elapsed since the Anti-discrimination Act came into force has shown that the Roma minority's problems and status are essentially different from those of other nationalities. The traditional legal institutions of minority protection have proved ineffective in the case of Gypsies, while the main problems of the Roma as a social stratum divert attention from the main difficulties encountered by the Roma as a nationality. In fact, the main danger the nationalities are facing and the minority rights are designed to avert is the threat of assimilation; at the same time, the most important problem of the Roma is the absence of social integration. The Roma minority is under-represented in high-prestige social groups and over-represented in those of a low standing. The chief reasons for this are that Gypsies' living conditions are bad and that non-Gypsies are strongly biased against them. The fact that the Roma are underprivileged in a multiplicity of different ways may be alleviated through acts of encouragement and confirmation, and also by development programmes. However, discrimination is a problem that needs special means to be effectively tackled. All the more so that the social restructuring, brought about by the political transition, has stirred up the traditional value systems and in volatile situations disadvantaged groups can easily be made victims of bias. Though several measures have been taken by the Government since the promulgation of the ARNEM, those were essentially inadequate to solve the problems of the Roma in a complex and comprehensive manner. Romas are extensively discriminated against in the area of education, employment, as well as the social and health-care services, and this status prevents their healthy integration in society. Romas face discrimination even in authority and law-enforcement procedures and in other fields of social life. Such anomalies cannot be fought with traditional means of government action: new, more effective tools are needed! Civil servants should be trained to identify and eliminate discrimination, while equality should be promoted with legal means and via the media involvement of celebrities. Businesses employing a large workforce should be contacted and assisted (e.g. with tax allowances) if they agree to apply quotas and organise training programmes. Government agencies and public companies themselves should consider the same and government funds should be mobilised to support the training. Legal tools can also be reasonably utilised in the fight against discrimination. Appropriate amendments to our legal system could ensure that victims of discrimination be able to resort to more protection than the traditional protection guaranteed for the person. By preparing appropriate provisions of substantive and procedural law as well as establishing a system of fora, it should be ensured that the plaintiffs be given swift and effective protection. Such and similar government actions are needed to facilitate the social integration of the Roma.
Enquiries and measures planned for the year 1999 Similarly to previous years, the parliamentary commissioner for national and ethnic minority rights plans not only to investigate individual complaints but also to start ex officio procedures to check the enforcement of minority rights. The parliamentary commissioner plans to conclude his review on the minority self-government elections in the first quarter, as the said elections will be held in January-February. The report will contain proposals to the legislation to amend the minority election system in order to make it more consistent with the Constitution. In order to revise the minorities legislation, the Commission for Human and Minority Rights and Religious Issues of the National Assembly set up an ad hoc commission. As in the commissioner's view the amendment of the legislation is reasonable both as far as the time elapsed and the possible inconsistencies with the Constitution are concerned, he will participate in the work by offering his professional experience. Besides the above inconsistencies, the operation of the minority self-governments is greatly hindered by minority politicians not being adequately informed of their rights and obligations. Therefore, the parliamentary commissioner decided in 1998 to publish, together with the Government Agency for National and Ethnic Minorities, the Handbook for Minority Self-Governments, which will include useful information helping the work of its readers. The parliamentary commissioner intends to send the handbook to the newly-elected minority self-governments in 1999 and conduct a related training programme, again in co-operation with the Government Agency for National and Ethnic Minorities. An important element of the minorities' cultural autonomy is their appropriate representation in the media. As the Rtvtv. defines the production of national and ethnic minority programmes as an essential element of public service, we plan to examine to what extent national and ethnic minority rights are observed in public service programming. The enforcement of the human and civil rights of the Roma is the duty of the whole society. Considering the experiences derived from the legal practice of recent years, the parliamentary commissioner for national and ethnic minority rights urges the establishment of a system of fora which could protect those who suffered racial discrimination in education, health-care, social services or employment. Therefore, we have decided to revise the legislation and determine the possibilities for an anti-discrimination or equal chances act.
Dr. Jenő Kaltenbach
IX. Statistics
I. Cases filed in 1998, broken down by the plaintiff's person
II. Procedures started based on the cases filed in 1998
III. Minorities affected by the cases filed in 1998
IV. Regional distribution of the cases
Regional distribution of the cases according to the plaintiff's registered domicile
V. Organs affected by the cases filed
VI. Total number of recommendations and initiations
VII. Organs affected by the recommendations and initiations
VIII. Legislative proposals
IX. Measures taken after investigation*
* More than one measure was taken
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