The Hungarian Parliamentary Commissioner for the Rights of National and Ethnic Minorities learned from the reports of the written and electronic press that the local governmental council of the municipality of Monok cut off the financial assistance from families whose children do not attend regularly nursery school or school. Later the ombudsman also learned that the payment of regular social benefit is to be fulfilled only on condition that the concerned accept the jobs offered by the local government.

Meanwhile several municipality local governments followed the Monok Model and tightened the payment of regular child protection allowance and/or regular social benefit by modifying their local decrees.

The minority commissioner has numerous previous investigative experiences connected with the transitional subsidy linked to work, with the plan of subsidy linked to the fulfilment of public cleanness tasks and with complaints concerning public employment.

In its present inquiry the ombudsman looked over those local decrees and proposals directed towards the transformation of child welfare and social supply, by which unprivileged residents - belonging mainly to the Roma population - are intended to be ‘stimulated' for work on local and national level.

The long term purpose of the inquiry is to impede and prevent discriminative legislation which induces further deterioration in the social situation of (mainly Roma) residents living under the most disadvantaged circumstances.

The demand for jobs requiring low qualification significantly has decreased in Hungary following the regime change. The proportion of those capable exclusively for this kind of work has, however, hardly decreased. As a result, the number of those able-bodied obliged to live almost solely from benefits has increased.

Problems concerning subsidy affect several disadvantaged layers and certain facts make obvious the minority aspects of this problem. Certain sociological researches show that the employment average is about 20 % among able-bodied Roma people, which means that four persons of five do not have a job. Last year the Hungarian unemployment rate was 7,4% according to the researches of the Central Statistical Office. The unemployment of the Roma population multiply exceeds this national average.

The exclusion of the Roma population from the labour market is further strengthened by social phenomenon improved in the last decade, as a result of which they are facing negative discrimination more frequently at obtaining jobs and during work as well.

According to the provisions of the Social Act the local municipality council regulates the rules of material supplies within its competence in a local governmental decree.

The Hungarian Constitutional Court laid down that the Social Act ‘does not provide any authorization to local governments to enlarge the legal conditions of the application for social supplies'.

The minority commissioner considered these findings of the Constitutional Court as to be applied in the course of the judgement of the constitutionality of the investigated local governmental decrees.

The Social Act prescribes the obligation for co-operation as the precondition of the payment of regular social benefit.

Further element of the program helping the adaptation is that if an appropriate job is offered to the applicant, he is obliged to accept it.

The investigated local governmental decrees, however, prescribe such work as the precondition of the establishment and payment of the benefit, the remuneration of which in the amount of the benefit itself. Therefore these local governments exceed their legislative power.

Therefore the issue of these decrees caused improprieties relating to the order of local governmental legislation, the constitutional right to social security and the principle of rule of law.

Given that the examined decrees not expressly and exclusively affect individuals of Roma origin, the possibility of direct discrimination did not even emerged in the course of the inquiry. The surveyed decrees and documents, however, raise the well-founded suspicion of indirect discrimination even on the first reading.

A significant deficiency can be established in the Hungarian regulation compared with the notion used in Directive 2000/43/EC on the application of the principle of equal treatment regardless of racial and ethnic origin between individuals. Departing from the original English and French versions the Directive's Hungarian version in effect contains the expression „shall affect" instead of „may effect", so does not prohibit causing potential disadvantages as indirect discrimination.

The Hungarian law in effect therefore is not harmonized with EU requirements in this aspect. The notion of indirect discrimination laid down by Act CXXV of 2003 on the Promotion of Equal Treatment and Equal Opportunities provides a lower protection than the English and French versions of the aforementioned EC directive, the minority commissioner therefore initiated the adequate modification of the Hungarian legal regulation.

According to the Equal Treatment Act, in case of the emergence of discrimination connected to fundamental rights those provisions do not violate the requirement of equal treatment which restricts the fundamental right of the disadvantaged party for the sake of the emergence of other fundamental right in an inevitable situation, provided that the restriction is appropriate for and proportionate with achieving the purpose.

In the investigated case, however, the right to social security and the constitutional rights of children are restricted. There are not any arguments against these legal restrictions which would even approach the above requirements.

It can be stated therefore that the decrees in question establish the direct danger of indirect discrimination against Roma population. According to Act LIX of 1993 on the Parliamentary Commissioner for Civil Rights (Ombudsman Act) an impropriety shall be realized in case of the violation of a fundamental right and also the direct danger thereof. Fundamental legal impropriety was realized therefore relating to the prohibition of negative discrimination laid down in Article 70/A. § of the Hungarian Constitution.

According to the standpoint of the minority commissioner it would extremely dangerous and worrying from a constitutional perspective if the complex modification of child welfare and social supply systems took place taking the ‘Monok Model' as sample.

The ombudsman supports all well-founded initiative which approach citizens living from benefits to the labour market. The State and local governmental assistance is indispensable for those living from benefits.

The present measures, however, do not serve at all the realization of the aforementioned purposes.

Therefore the minority commissioner considers such strategy as appropriate which ensures - promoting the mobilization between regions - the opportunity of retraining to jobs where the workforce is not sufficient and also ensures appropriate psychological advising to the individual concerned.

The solution which requires par example public purpose or public utility work as a precondition of the payment of the benefit without paying any wages is inadmissible according to the ombudsman, since a modification of this kind would further increase deep poverty and the exclusion of those in need.

The minority ombudsman felt himself obliged to draw the attention to the fact that the present events may strengthen the exclusion and negative discrimination towards the Roma.

As a result, he has made numerous legislative proposals and initiatives in the case and signalled the necessity to elaborate an appropriate governmental communication strategy for alleviating tensions.