OF THE PARLIAMENTARY COMMISSIONER FOR NATIONAL AND ETHNIC MINORITY RIGHTS
1 January — 31 December 1999
(EXTRACT)
BUDAPEST
2000
Published by
the Parliamentary Commissioners’ Office
1054 Budapest, Tüköry u. 3.
Phone: 269 3500, Fax: 269 3629
Publisher-in charge: Dr. Jenõ
Kaltenbach
Edited by: Heizerné Hegedûs Éva
Photograph by: Szabolcs Tábori
I. Main trends of 1999 in Hungary and abroad
1. The historical
roots, the international background and the interpretation by the
Constitutional Court of the constitutional rules banning discrimination
1.1. The prohibition of discrimination -
as a human right
1.2. The prohibition of racial
discrimination
1.3. Forms of the fight against
discrimination
1.4. On anti-discriminatory legislation
in general
1.4.1. Lack of a definition
1.4.2. Deficiencies of the possibility
of the enforcement of the law
1.4.3. Deficiencies of the application
of the law
2. The relationship
between minorities and the state in view of the recommendations of two
international conferences held last year
2.1. Our joint conference with the
Council of Europe
2.2 Recommendations of the Lund
Declaration
II. Minorities’ right to their identity
1. Cases of unlawful
and ‘necessary’ violation of the prohibition provided for in Article 7 (1) of
the Act on the Rights of National and Ethnic Minorities (Nektv)., the natural
limitations of the right to identity
2. The problem and
proposed limitation of ‘double or multiple association’
3. Definitive
elements of existence as member of a minority, proposal “de lege ferenda”
III. Special mother tongue related rights of minorities
and other associated individual and collective minority rights
1. Language related
rights associated with the cultivation of family traditions, observing
holidays, and related religious ceremonies, with special regard to the
registration of birth
2. Minorities’ rights
pertaining to the names of public places (streets)
3. Position, analysis
of the rights of minorities with respect to the media, proposals and
definitions of terms “de lege ferenda”
4. Analysis of and
provision for the rights relating to the education of minorities, directions of
progress
5. Questions of the
financing of the performance of minorities cultural (education, mass
communication etc.) tasks, proposals “de lege ferenda”
IV. The fundamental right of minorities to
self-governance
1. Presentation of
the concept, content elements and structure of self-governance, the problems of
the system, possible and expedient directions of development and improvement
2. Problems
associated with the establishment of the system of minority self-governments,
with particular respect to anomalies of local minority governmental elections.
Description of a realistic alternative to the current election system
3. The rights of
minority self-governments in maintaining institutions, the system of financing
and our proposals on this area
4. The legal status
of a national minority self-government, problems arising from the lack of
legality supervision
V. Representation of minorities in Parliament
1. Analysis of the
legislative background of the right to parliamentary representation and
description of related resolutions by the Constitutional Court
2. Presentation of
the position and interpretation of the law by the minorities’ ombudsman and the
actions taken by him (submissions to the Constitutional Court)
2.1. The content of ‘state constituting
factor’ as a concept of constitution
2.2. Constitutional problems relating to
the act on elections
VI. Coopera6ion between municipal governments and
minority self-governments
1 Description of the
conceptual problems relating to the exercising and ignoring of the so called
‘co-decision making powers’ as reflected by concrete complaint cases
1.2. Our proposal concerning legislation
relating to the exercising of co-decision rights
2. The most evident
cases of direct discrimination, biases in public service, general description
of complaints
3. Discriminative
limitation of the basic constitutional right of the free choice of residence
and the tendencies identified in this area
3.1. Specific cases investigated during
1999.
3.2. General tendencies
4. Presentation of
complaints submitted to the Social Committee and suggesting the violation of
basic constitutional right, with special regard to the refusal of the payment
of social benefits and applications for preventing eviction
5. Negative
discrimination in education: the findings of the ombudsman in relation to the
segregation in school and education in schools with different curriculum
6. Negative
discrimination in employment, the presentation of the feed-back of the survey
performed by the ombudsman in 1998, with special regards to the expected
consequences of the legislative changes which have taken place since
I.
Main trends of 1999 in Hungary and abroad
It is clear from last year’s statistics that the issues we dealt with were similar to those of the preceding years, both in terms of absolute figures and the distribution of the issues. The largest percentages of the complaints were aimed at the local governments and the police - this pattern has stabilised over recent years - but there was still a relatively large proportion of complaints against the judicature as well.
No change was recorded in respect of the minorities involved either, albeit the proportion of complainants of the Roma minority declined somewhat. This latter may perhaps be a result to some extent of that the medium time crisis management programme is slowly getting underway. The participants of the meetings of the Inter-Ministerial Committee for Roma Affairs (Cigányügyi Tárcaközi Bizottság) had an impression that this body is more intent on actually improving matters, in contrast to previous similar bodies.
What was perhaps the most important development last year in Hungary, however, related not so much to the application of the law as to legislation itself.
Experience accumulated during the six years of the application of Act No. LXXVII of 1993 on the rights of national and ethnic minorities (hereinafter: Nektv.) and the conclusions drawn from the inspections carried out by the parliamentary commissioner for the rights of minorities clearly indicated that the act needed to be amended on a number of points.
Hungary joined the Framework Convention on the Protection of National Minorities of the Council of Europe and the European Charter of Regional or Minority Languages. These are international agreements whose ratification should also be reflected in domestic legal practice.
The practical application of Nektv. has shown that the system of self governance of minorities is a fundamentally sound and viable system, however, an enhancement of the rights of representation for national and ethnic minorities is considered increasingly urgently necessary. Article 20 (1) of the Nektv. declared that minorities are entitled to representation in Parliament, in a way to be defined in a separate statute of law. In the course of his activity since 1995 the ombudsman for minorities has been consistently representing the position according to which it follows from Article 68 of the Constitution that minorities’ right to representation includes full representation in the organ of supreme state power as well.
The minorities self-government elections in October 1998 drew attention to a number of problems that can be corrected only by means of legislation. In the wake of this recognition - to which the parliamentary commissioner for the rights of minorities played a dominant role on owing to his function - an ad hoc committee was set up within the parliamentary committee for human rights, minority and religious affairs, aimed to review, amend and even re-codify the legislation on minorities as necessary, in which the ombudsman for minorities and his colleagues participated as experts last year, indeed, they also participate in that work during the period of the preparation of this report.
The expert negotiations conducted within the framework of the ad hoc committee clarified that the re-regulation and precise definition of the individual and collective rights of minorities could no longer be postponed and that in order to fill the system of minorities self governance with contents the legislator has to define certain concepts that are essential from the aspect of the application of the law.
Besides describing concrete inspections and some cases of complaints this report aims to repeatedly hold up a mirror to the whole of society, to give a detailed description of the whole catalogue of problems which the Parliament will have to deal with in the course of its legislative activities.
Furthermore, in this report by the parliamentary commissioner we shall also make an attempt to make a proposal - besides indicating anomalies, loopholes in the law and other problem issues - concerning the resolution of these problems in accordance with the provisions of the Constitution, i.e. we shall submit concrete legislative proposals to Parliament.
Naturally, we cannot purport that we could resolve all of the outstanding issues, we cannot say that only the proposals outlined herein may represent the only possible solutions. In accordance with the legal status of the ombudsman we could not assume the roles of the legislator either, in particular because all decisions by the legislator are made alongside the relations of political powers, as an aggregate of these powers which we cannot and would not wish to influence.
Therefore, all we may undertake to do is outline an purely technical/professional concept concerning the Constitution and the rights of minorities to foster a constructive attitude and improve the understandability of the regulations, in a norm-like form of wording.
Consequently, the report that we submit to Parliament in early 2000, is different from and it offers more than did our previous reports which perhaps may not improve its ‘readability’ but it is hoped to provide some guidance for legislators and for those applying and enforcing the law, who are most interested in the uniform and proper interpretation of the law.
As for the international plane, the year 1999 very rich in events relating to our topic, from among which we shall briefly reflect on some of the most outstanding developments.
The second ‘country report’ by the European Commission against Racism and Intolerance (ECRI) covering Hungary, came out on 21 March. The report mentions certain positive trends. Thus - much to our liking - it reports in terms of appreciation on the activities performed by our office. On the other hand, it declares that there still are serious problems in Hungary in relation with racism and intolerance.
A special area of concern is discrimination against the members of the Roma minority that is apparent in almost all areas of life, including the administration of justice and the persistence of the inequality of opportunities in the area of education and the labour market. On the part of the police physical violence is still reported of as a peculiar violation of the law, affecting members of this group.
ECRI proposes that the Hungarian authorities should take further steps to combat racism, xenophobia, anti-Semitism and intolerance. These proposals include the requirement - inter alia - that the Republic of Hungary should ensure complete enforcement of the legislation against discrimination, it should take more resolute actions to repress the improper behaviour of the police and to eliminate deficiencies in the administration of justice and should implement effective action in order to improve the efficiency of the fight against discrimination and racism against the Roma community especially in the area of education and employment.
The requirement of the improvement of the system of norms of the law against discrimination is mentioned several times in the report. One reason for this is that in 1999 there was an especially intensive activity in relation with the problem of racism and ethnic discrimination, including the organisation and the preparations for of the European Conference against Racism in preparation of the World Conference against Racism. (The invitation of the commissioner for minorities to carry out the tasks of one of the raporteurs of the European conference is regarded as a particular success.)
The reworking of Article 14 of the European Treaty on Human Rights prohibiting discrimination was another important development. According to the draft the goal is to extend the prohibition of discrimination, meaning that in the future the means of the Treaty will be available in the case of any kind of unlawful discrimination, not only in relation with other basic rights specified in the Treaty, i.e. it will be possible for complainants to turn to the European Court of Human Rights.
The work relating to the elaboration of the general directive of the European Union against discrimination is perhaps even more important. Especially this latter development - and the associated still open debate in Hungary - prompts us to deal with the question of discrimination in detail.
1. The historical roots, the international background and the interpretation by the Constitutional Court of the constitutional rules banning discrimination
1.1. The prohibition of discrimination - as a human right
The prohibition of discrimination is a fundamental institution of the protection of human rights. This is a separate law but it is also one aspect of other human rights, for one may refer to human dignity, the right of speech, it is a basic constituent of each that everyone is entitled to those rights regardless of sex, race, colour of skin, any or any disability.
Discrimination - as a type of prohibition or restriction - or in a positive wording the principle of equal treatment was originally introduced in history to balance or reduce the excesses or abuse of state power. Without going into details of the evolution of the law let us point out that the whole system of international agreements today not only obliges states to refrain from violating the equality of rights but also to protect their citizens against the various forms of negative discrimination.
1.2. The prohibition of racial discrimination
Most of the international
agreements on human rights prohibit racial discrimination. The most important
such provisions include Articles 2
and 26 of the International
Protocol on Civic and Political Rights, Article 2 of the Universal
Declaration of Human Rights, Article 2 paragraph 1 of the international agreement
adopted on 21 December 1965 in New York concerning the elimination of all forms
of racial discrimination, Article 14 of the European
Agreement on the Protection of Human Rights and the Fundamental Rights of
Freedom and Article 13 of the Amsterdam Treaty.
Article 2 of International Treaty Documents of Civic and Political Rights: 1. Each party to the Treaty Document oblige themselves to respect and to provide for all persons staying in its territory and falling under its jurisdiction, all of the rights recognised in the Treaty Document, without any kind of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, financial position or status by birth or any other status.
Article 26 of the Civic and Political Rights International Treaty documents: Everyone is equal before the low and is entitled, without discrimination, to equal legal protection. In view of this the law has to prohibit all kinds of discrimination and has to provide everyone with equal and efficient protection against any form of discrimination such as for instance discrimination by race, colour, sex, language, religion, political or other opinion, national or social origin, financial position or status by birth or any other status.
Article 2 of Universal Declaration of Human Rights: Everyone, without any discrimination, namely, without regard to race, colour, sex, lanbguatge, religion, political or any other opinion, national or social origin, wealth, birth or any other circumstance, is entitled to refer to all of the rights and freedoms declared in this Declaration. Furthermore, no discrimination may be applied based on the political, legal or international situation or position of the country or area of which a given individual is a citizen, by whether the given country is independent, under guardianship, is not autonomous or whether its sovereignty is restricted in any form.
Article 2 paragraph 1 of the international agreement adopted in New York on 21 December 965 on the elimination of all forms of racial discrimination: 1. The parties to the agreement condemn racial discrimination and undertake to pursue the policy of eliminating all forms of racial discrimination and that of the promotion of understanding between and among all races, by all suitable means.
Article 14 of the Treaty on the Protection of Human Rights and Fudnamental Freedoms: the exercising of the rights and freedoms specified herein shall be ensured without any discrimination, including discrimination by sex, race, colour, language, religion, political or any other opinion, national or social origin, membership of a national minority, financial position, position by birth or any other factor.
Article 13 of the Amsterdam Treaty: without prejudice to other provisions of the Treaty and within the framework of the mandate assigned by the treaty to the Community the Council - in accordance with the proposal by the Commission and having consulted with the European Parliament - may take the actions it considers necessary in the interest of the fight against discrimination according to sex, race, religion and conscience, disabilities, age or sexual orientation.
1.3. Forms of the fight against discrimination
The state has a relatively rich
‘arsenal’ to choose from in combating negative discrimination. Legal propaganda
and education are the first and foremost means for influencing social processes
in a positive direction with lasting effect - these are most suitable for the
elimination of undoubtedly existing prejudices.
See the provisions in Article 70/A (1) and (3) of the Constitution.
Furthermore, means of legal regulation should also be applied as a matter of course, and in this report we shall describe the particular possibilities of the law in more detail. In the area of legislation the state can apply two types of techniques in order to eliminate discrimination. On the one hand, through adopting an anti-discrimination act it can prohibit or sanction the various forms of negative discrimination, in view of the threat of discriminatory behaviour to society as a whole.
On the other hand, the state may apply various forms of discrimination to the benefit of those concerned (actions of confirmatory or positive discrimination) to transform ‘situations in life’ that constitute the basis of negative discrimination, thereby making an attempt to attain increasingly complete equality of opportunities. The Constitution of the Republic of Hungary applies both types of regulation.
1.4. On anti-discriminatory legislation in general
Anti-discriminatory legislation applies two fundamentally different approaches, one of which is a single uniform anti-discriminatory law following the Anglo-Saxon pattern, as for instance is the English Race Relations Act of 1976, the other is the continental type of regulation where provisions prohibiting discrimination are enshrined in the various sectoral laws separately. The Hungarian regulation - which will probably need to be audited in the course of the legal harmonisation programme necessitated by the endeavours of Hungary to integrate with Europe - falls in this latter group.
For the EU Commission has elaborated the draft of a directive that lays down the principles of equal treatment regardless of racial or ethnic differences. The draft is aimed to create a common concept for discrimination and to lay down common minimum requirements for the exploration, proving, sanctioning of and compensating for discrimination within the Member States of the European Union. This set of minimum requirements means that Member States will be permitted to provide their citizens with rights in excess of what is to be provided for by the prospective directive - but they will not be permitted to provide them with less. Although Hungary is not a member of the European Union, yet as a country intending to join the Union, Hungary has to observe the minimum requirements established by the European Union concerning issues of discrimination. Therefore, the Hungarian regulations against discrimination can be reviewed only in view of the draft of the EU directive (hereinafter: Draft) as well.
The first and perhaps the most important problem is the lack of a properly elaborated definition for the concept of discrimination. The Hungarian law ‘only’ prohibits discrimination but it does not define the term. The Draft not only provides definitions for direct and indirect discrimination (negative discrimination based on race), (apparently neutral regulation, criterion or practice which does negatively influence individuals or groups belonging to a minority), it also provides a separate definition for the concept of harassment. For instance, if someone keeps harassing an individual or group belonging to a minority in order to create a hostile, debasing and or disturbing environment, or if such harassment results in such an environment, it qualifies as negative discrimination.
The Draft lists all of the areas covered by the prohibition of discrimination and it deals in particular with the forms of discrimination in employment, social benefits, education and the use of various services
Direct negative discrimination entails the condemnation - sanctions - in the form specified by the Draft while in the case of indirect discrimination it is possible to prove the opposite. The method proposed by the Draft for the investigation of discrimination is comprised of a ‘test’ aimed to explore the objective and the means involved.
It means that it has to be established whether it is possible to objectively prove the goal of the rule or of the associated legal practice - that is intended by the legislator to be neutral, formulated on the basis of the principle of equal treatment - that is whether it is not motivated by prejudice against minorities, various ethnic minorities. If the rule or norm or criterion in question has ‘passed’ this first part of the ‘test’ then it is to be explored whether the method or technique applied in order to attain the goal, is appropriate and necessary for the attainment of the objective intended to be realised by the introduction of the given norm.
It should be noted that such tests and inspections provide more of a methodology aid than a substantive guidance - the content criteria of discrimination will have to be further refined by court decisions.
The concept of discrimination applied by the European Court of Human Rights (Court of Strasbourg)
The European Treaty on Human Rights entered into force in Hungary on 5 November 1992, as a result of which, in the case of a violation of a right laid down in the Treaty, having resorted to all of the legal remedies offered by the Hungarian law, anyone may turn to the Court of Strasbourg (hereinafter: the Court).
Therefore, it is not only worth describing the investigation method (‘test’) applied by the Court to explore a case of alleged discrimination - it is indispensable to do so. First of all it should be noted that the anti-discriminatory provision in Article 14 of the Treaty is currently of an ‘additional’ nature, i.e. it is possible to refer to negative discrimination only in respect of the rights laid down in the Treaty and the supplementary protocols.
As far as we know a draft has been prepared concerning the introduction of a separate right to treatment free of discrimination but here we can only undertake to analyse the hitherto developed European practice. The Court can apply various methods to explore a case of alleged discrimination.
One of them is the so called ‘comparability test’ where the Court explores whether the complainant has found his or her situation as worse than that of a person under circumstances comparable to those of the complainant. If the two compared situations are fundamentally different, the Court will reject the ‘charge’ of discrimination.
The other method applied to explore discrimination is the so called ‘justifiability test’ under which discrimination is declared to exist if there is no objective and rational reason for distinguishing between complainant and others. Such a reason is to meet two criteria: 1) the goal established by the statute of law applying the distinguishing between complainant and others should be legitimate and 2) the means applied to attain that goal should be proportionate to the goal. The justification test therefore involves an assessment of whether means and goal are mutually proportionate.
The concept of discrimination applied by the Constitutional Court
The Constitutional Court has provided interpretations of the anti-discriminatory provision laid down - in rather general terms - in Article 70/A of the Constitution.
According to the interpretation issued by the Constitutional Court as a guideline in a positive wording the concept of the prohibition of discrimination means that ‘... the law has to treat everyone as equals (individuals of equal dignity), i.e. the basic right of human dignity cannot be prejudiced, entitlements and the criteria of the distribution of benefits should be established based on equal respect and prudence, equally taking into account the all relevant individual perspectives.’ [No. 9/1990. (IV.25.) AB Resolution by the Constitutional Court].
It is clear from the interpretation of the law by the Constitutional Court that the prohibition of discrimination is not an absolute discrimination: ‘The equality of rights does not also mean equality of natural persons according to criteria outside the scope of law. An individual as a member of society may and does differ from other individuals in terms of vocation, qualifications, earnings etc. It is the right - and at the same time, in a certain area, it is the obligation - of the state to take into account actually existing differences between and among people in the course of legislation. For Article 70/A (1) of the Constitution does not prohibit just any kind of distinguishing between people - such a general prohibition would be incompatible with the purpose of law - only types of distinguishing that prejudice the right to human dignity.’ [No. 61/1992. (XI.20.) AB Resolution by the Constitutional Court]
At the same time, this prohibition and the requirement of equality before the law is included in all rules of the legislative system: ‘The prohibition comprised in Article 70/A (1) of the Constitution is applicable not only to the human and the basic civic rights but this prohibition extends to the entirety of the legal system - as long as distinguishing between individuals violates the right to human dignity.’ [No. 61/1992. (XI.20.) AB Resolution by the Constitutional Court]
The Constitutional Court does not distinguish between direct and indirect discrimination and from its resolution No. 349/B/1994 it is concluded that the criterion of indirect discrimination - that application of a statute of law may result in negative discrimination against a minority even if its objectives are not aimed to achieve this - is not considered as an aspect to investigate.
The Constitutional Court has established two different tests to assess the existing of negative discrimination, according to the types of the rights violated in a given case.
The softer ‘test’ is to be passed by regulation that may raise suspicion of discrimination but that is not related to the fundamental right. The same test may be applied in the case of ex grate benefits as well where there cannot be discrimination between those entitled to a benefit, i.e. where there is no basic civic right to the benefit concerned.
This test ‘sets’ the limits of positive discrimination as well from which it is clear that in the interpretation of the Constitutional Court positive discrimination is not a civic right but an objective the contents of which are established by those exercising the supreme state power. As has been expressed by the Constitutional Court ‘... the Constitution has not established a fundamental civic right to eliminate inequalities of opportunity, instead, it formulated a general public objective and effort by offering the possibility of actions aimed to enable the implementation of the equality of rights and the elimination of inequalities of opportunities. The formulation of the contents of the public (state) actions aimed to attain these objectives, however, are subject to the considerations of the competent and empowered state organs - of course within the limits specified by the Constitution.’ [Resolution No. 2100/B/1991 AB of the Constitutional Court].
Consequently, the one applied in the above cases is a so called ‘rationality test’ i.e. restriction or unequal treatment is not to be considered as discriminative if it is a result of some factors considered as reasonable, i.e. if it is not arbitrary.
Within the above rules there are additional requirements concerning the methods of the comparison of groups under different regulations or different circumstances: ‘... to support compliance with the Constitution in distinguishing between individuals or groups the court cannot accept arguments relating to the groups enjoying preferential terms the validity of which is not restricted to such group. On the other hand, proving equal treatment necessitates complete presentation of the arguments and perspectives of the preferred group and the one subject to negative discrimination along with the method of evaluation.” [No. 21/1990. (X. 4.) AB Resolution by the Constitutional Court]
In respect of the fundamental constitutional rights the Constitutional Court applies a more exacting approach, the so called necessity/proportionateness test: “The actual content of such rights is the limit of the restriction of the fundamental rights: Article 8 (2) of the Constitution provides that not even laws may prejudice substantive contents of the fundamental rights. According to the permanent practice of the Constitutional Court substantive contents of a fundamental right is violated by a restriction that is not indispensable - for the purposes of some other fundamental right or constitutional objective - and, even if it is necessary, the injury caused by the restriction is not proportionate with the objective intended to be achieved.” [No. 6/1998. (III. 11.) AB Resolution by the Constitutional Court]
In the Hungarian legal system the Constitutional Court is not in charge of eliminating discriminative practices encountered in day-to-day life or of remedying discrimination, yet the resolutions and tests of the Constitutional Court are observed in the formulation of the concept of discrimination.
The concept of discrimination evolved in the course of the procedures by the ombudsman
A large number of complaints relating to racial (ethnic) discrimination are filed with the minority ombudsman in the course of which it is to be established whether the statute of law or behaviour objected to was really discriminative.
In the course of the investigations the practice followed by the ombudsman establishes violation of the law both by direct as well as indirect discrimination since cases of negative discrimination in a covert form must not be overlooked either.
Within indirect discrimination, however, disadvantage suffered on account of belonging to a minority (special traditions, different culture) should be distinguished from disadvantage suffered on account of the disadvantaged social position or low schooling standards prevailing in a minority group. The former may be remedied in essence by the introduction of anti-discriminatory rules, the latter need actions to eliminate inequality of opportunities.
Current sociology
research efforts have shown that disadvantaged
social position and low schooling standards cannot be regarded as social
phenomena that are entirely independent of discrimination either. See: KEMÉNY, István: Tettekre
sürgetõ közállapotok, avagy az állam felelõssége. (A hátrányos
megkülönböztetés tilalmától a pozitív diszkriminációig) /Social conditions
urging action or the responsibility of the state (From prohibition of negative
discrimination to positive discrimination)/ Aduprint-Indok, 1998. For instance, a comparison of the percentages of
unemployment in the Roma minority and in the rest of the society, reveals that
the difference between the two groups is explained by a variety of factors
including the low schooling standards that are characteristic of a higher
percentage of the Roma minority and the fact that the majority of them live in
depressed regions of Hungary and that they used to be employed in sectors that
more or less disappeared after the system change. Nevertheless, even the
combination of these factors is sufficient to explain such a large difference,
consequently, there is a ‘residual difference’ that cannot be explained by the
above factors and that is most probably influenced by discrimination.
The survey performed by the minority ombudsman in special schools established - based on like theoretical foundations - the existence of indirect discrimination. The proportion of Roma students in the system of special schools that is a lot higher than their proportion relative to the whole of society does constitute - in terms of its results - negative discrimination against Roma children. For the expert committees examining children do not exclusively use ‘value-neutral’ tests in establishing maturity for entering elementary school. Instead, they will also treat children who do not have certain knowledge on account of their social background and cultural circumstances, as handicapped.
The minority ombudsman stresses the importance of the differences between discriminative situations - that necessitate anti-discriminatory actions - and confirmatory or positive discriminatory practices established to promote the equality of opportunities. The planned actions of the No. 1047/1999. (V. 5.) Government Resolution on the medium term package of actions aimed to improve the living conditions and social position of the Roma minority to be implemented in education, culture, employment, regional development, social position, health care and housing, are not suitable for remedying the lack of anti-discriminatory rules.
The ombudsman considers the rights of minorities in the area of self governance (rights that should be considered rather as a mere formality) as well as the lack of their representation in Parliament, definitely as discriminative, which should be remedied by the state. In our opinion one cannot speak about institutionalised form of equality as long as minorities are not enabled to make their own decisions on a specific range of public matters. For the right to self-governance is an indispensable guarantee of equality, i.e. this is not a supplementary entitlement to be subject to a decision by the state - this is a pre-requisite for the fundamental right of equality. In the framework of this report by the parliamentary commissioner - perhaps in a somewhat unusual and ‘pioneering’ way - we submit a draft bill to Parliament the adoption of which - or the adoption of parts of which - could enable a conceptual re-wording of the rights of the ethnic minorities in Hungary, which would ensure the enhancement of the legal functions of minority self-governments and the achievement of genuine autonomy of those self-governments in respect of so called ‘public matters of ethic minorities’.
Ensuring representation of minorities
in Parliament is an obligation imposed on the government by the Constitution
and it has not been met for ten years. In its Resolution No. 35/1992. (VI.10.)
the Constitutional Court established that the Parliament has failed to carry
out its legislative task as per Article 68 of the Constitution, thereby it has
created an unconstitutional situation. The necessity of parliamentary
representation cannot be debated and views differ only in respect of the way of
implementing such representation. The ombudsman in charge of minority issues
considers that the problem is the application on minorities of the 5 percent
threshold rule specified by the law on parliamentary elections. Such a rule
results in negative discrimination for minorities on account of the very
essence of existence as a minority in a society. Therefore, the ombudsman has
turned to the Constitutional Court and submitted a motion concerning that the
Constitutional Court should declare the relevant provisions of No. XXXIV Act of
1989 on the election of members of parliament (hereinafter: Vjt.) contrary to
the constitution and so the Constitutional Court should annul those rules. “According
to one of the fundamental rules of the act on parliamentary elections
candidates are granted mandates in proportion with the number of votes and
‘fragment votes’ - in view of this the prescription of a threshold percentage
for getting elected qualifies as a special rule. Should the Vjt. not impose the
requirement of obtaining votes equalling the threshold on minority parties it
would enable the application of the general provision instead of the
application of the special rule - considering that it results in negative
discrimination against minorities owing to their particular situation. The deletion of the requirement of collecting the necessary
percentage of votes for minorities to acquire mandates in Parliament would,
consequently, not constitute the granting of preferential conditions, rather,
it would be an expression of that the protection of the constitutional interest
in the operability of Parliament - which necessitates the application of the 5
percent threshold on political parties - does not necessitate this regulation
in the case of parties representing minorities.”
See the complete text of the motion submitted to the Constitutional Court as Annex 6 of the report.
1.4.2. Deficiencies of the possibility of the enforcement of the law
The declarative prohibition comprised in the Constitution is repeated by a number of sectoral laws, however, it does not provide an actual instruction - for those in charge of applying or enforcing the law or for the aggrieved party - for the enforcement of the law. According to Article 7 of the Draft the Member States shall provide for court and/or administrative proceedings enabling the enforcement of the obligations laid down in the Draft.
In order to facilitate the enforcement of the law the Draft introduces a special institution: Article 7 (2) empowers organisations to commence proceedings in the interest of and in agreement with the aggrieved party, i.e. not only the aggrieved party but the specifically authorised subjects-at-law would also have the right to bring an action against those violating the law. The findings of investigations carried out by the ombudsman also prove that people who are in many cases not aware of their rights, who are excluded by society and who are afraid of further retorsion, often do not dare to or cannot claim legal remedy.
Article 8 of the Draft also reverses the burden of proof. Where the aggrieved party reports of facts that are indicative of the probability of direct or indirect discrimination it is the party that is held accountable that has to prove that it has not violated the principle of equal treatment. Criminal proceedings could be the only exception to the rule of reversed burden of proof. With two exceptions the currently effective Hungarian legal regulations do not apply the technique of reversing the burden of proof in the course of the investigation of discrimination, indeed, it makes the supplying of adequate proof well-nigh impossible in the cases of indirect forms of discrimination.
Article 5 (2) of No. XXII Act of 1992 on the Labour Code (hereinafter: Mt.) is one of the two exceptions: “Where there is a dispute concerning an alleged breach of the prohibition of negative discrimination the employer shall prove that it proceeded in accordance with the provisions laid out in paragraph (1).”
The other exception is Article 8 of No. LXXV of 1996 on labour related inspections (hereinafter: Met.) amended on an initiative by the minority ombudsman. As a result of the amendment since 1 January 2000 it is the employer that has to prove that did not proceed with respect to the employee in a discriminative way.
The Draft also provides for the protection of those taking actions against negative discrimination. Article 9 provides for the protection of those initiating official proceedings against discrimination whereby they may be exposed to retaliation. States must provide for the protection of persons taking steps against discrimination. Under the Hungarian conditions such rule would be particularly important in smaller municipalities.
Appropriate sanctions are an indispensable pre-requisite for law enforcement. According to Article 14 sanctions must be efficient, proportionate and of a ‘dissuasive’ nature. They should be effective and proportionate against those violating the law and they should be ‘persuasive’ concerning those who are covered by the prohibition of discrimination. The currently effective Hungarian regulation does not provide for any sanction in many cases, thereby it fails to meet the constitutional rule declaring that the law shall strictly penalise discrimination. [Article 70/A (2)].
1.4.3. Deficiencies of the application of the law
There are countless cases of bureaucratic administration of business. In such cases substantive legal regulations are not usually violated and no direct discrimination takes place but maladministration that entails lack of the necessary care, use of an improper tone with the customer, often withholding of the necessary information etc. will be hardest on those who are in a disadvantaged position anyway. Therefore, Article 10 of the Draft specifically describes the actions to be taken in order to comply with the prohibition of discrimination: information on this should be communicated to society. Citizens have to be informed of special rights and obligations arising from the principle of equal treatment. Authorities need to be provided with adequate information, public servants and civil servants should be provided with appropriate training. The lack of information and that of the knowledge of rights, shortage of qualifications constitute a major problem in Hungary as well.
Besides the Draft the EU Commission has elaborated an action programme to improve the efficiency of the fight against discrimination. The key objectives include international co-operation and the exchange of information and established good practices. Within this broadly defined set of objectives the action programme is comprised of three constituent goals: 1) to analyse the nature and extent of discrimination and of the efficiency of the provisions prohibiting discrimination (to set up data bases of statistics), 2) to promote organisations fighting discrimination, 3) to create a suitable social environment for the operation of the principle of the prohibition of discrimination (supporting of the issuance of publications drawing attention to the issue, aimed to influence the public opinion, supporting of the organisation of conferences and seminars and of the foundation of special awards/prizes). There is a great need in Hungary as well for such ‘influencing’ of the public opinion and the fostering of social dialogue.
2. The relationship between minorities and the state in view of the recommendations of two international conferences held last year
2.1. Our joint conference with the Council of Europe
The ongoing efforts aimed to
amend the act on minorities necessarily raise the requirement of re-considering
of the issues of self-governance of minorities, the representation of
minorities and their participation in state decisions. This been the key factor
that prompted the organisation together with the Council of Europe of a
conference on this latter issue. The event provided an opportunity for a large
number of experts and active minority representatives from Eastern and Western
Europe - including representatives of the Hungarian communities in neighbouring
countries - to express their points of view. The final conclusions of the
conference are as follows.
according to the summary by Péter Kovács, university professor, presented at the closure of the conference.
The fist thesis was reflected many of the presentations is that there is no single uniform European model. Europe - Europeanism, the European quality - demands that besides the indispensable guarantees of human rights, the rule of law and parliamentary democracy, some form of protection should be granted to the interests of minority groups, along with some institutional form of participation of minorities in the decision making process.
The second thesis is that the solution to be chosen will have to be adjusted to the constitutional structures of the various countries.
The third thesis is that the solution will never be a logically perfectly elaborated one, instead, it will be a legally more or less systematically arranged a reflection of the political agreement concluded in order to ensure that the situation of minorities is duly taken into account.
The fourth thesis is that such solutions will evolve with history, they will be continuously adjusted to the actual situation and position of minorities and they will work more or less satisfactorily if the given minorities also make efforts to actively participate in the development of its future.
The fifth thesis is that a minority group will be able to efficiently participate in the decision making process if it does not exclusively concentrate on issues of its language and culture but it also expresses sound and well-founded opinions on other issues affecting the society as a whole. This is when a minority will be accepted by the parties of the majority and the political elite in general, as a partner.
The ‘pointer of the scales’ function has been stressed in a number of presentations. The question is whether it is favourable and whether it is possible to undertake to take up a definite position in conflicts dividing the society. It was interesting to hear that in this respect various contributors reported of substantially different experiences.
Another question touched upon in a number of presentations was whether the minorities should take into account the situation, problems and endeavours of other minorities, whether they should act in solidarity with the others or whether they should focus on their own problems. The view taken by the majority of the participants was that it minorities should act in solidarity with each other, support one another’s efforts for this is the fair and practically sound way to achieve their goals.
The eighth common point was the analysis of the achievement of parliamentary representation of minorities, namely, what legitimacy is provided by making it to Parliament by their own efforts, to what extent it should be considered as proper solution and how the given minority can have itself accepted by the rest of the members of parliament.
A similarly interesting approach and some analyses were presented on what advantages may be offered by guaranteed representation in Parliament and what pragmatic regulation is required for the exploitation of such advantages.
It was an interesting thesis according to which a given minority may itself decide that it does not need guaranteed representation for it can assert its interests in other ways as well.
The ninth though that was brought up was that if a minority has representation in Parliament, then in what forms it can participate in the life of Parliament, in its internal operational structures. The benefits of setting up a separate minority caucus were also outlined in a presentation.
The tenth thesis and this is the most important one in this case, the alpha and omega of the entirety of the participation of minorities in politics, is as follows. Parliamentary representation cannot be removed from the constitutional context of the given state and the existence of parliamentary representation should be interpreted in view of whether there is a separate act on minorities and if there is one, what are its contents, and what guarantees exist within the legal system to protect minorities that are really observed.
A number of metaphors were heard concerning the protection of minorities: ultimately, the protection of minorities is like a black box the most important about which is that it should work. One do not necessarily have to see all of the internal operational mechanisms, indeed, under circumstances it is possible and it is necessary to take steps without having all of the details elaborated. Similar arguments were presented concerning the meaning of the metaphor and the difficulties arising from it, which relates to the ‘colour blind’ constitutional approach in the various mechanisms introduced for minorities. Namely, that the development of the legislation of the various countries is directed in various forms towards the requirement of the elimination and offsetting of the above mentioned ‘colour blind’ constitutional approach, since a colour blind person does not see the actual picture, he will only have a false and oversimplified view of society.
A lot of metaphors can be borrowed concerning the protection of minorities from the area of botany as well. In one presentation we heard that minorities in Parliament are like petals of a flower. Then another speaker said that a minority is like a loan oak tree in the storms in Parliament. Minorities in Parliament were also considered as similar to ragweed, which may perhaps irritate the majority. To enrich the list of metaphors from botany: minorities may be like water-lilies floating on the waves yet remaining in one spot and it will improve the aesthetic value of the whole set of questions pertaining to minorities - along with the landscape.
Practice and theory should be contrasted. A large number of scientific works have been published on the protection of minorities yet it is considered that there is no need to treat the protection of minorities as something very scientific - for if there is some decision then it will be possible to find theoretical explanations for it along with the appropriate constitution technical and organisation al solutions. Accordingly, we may accept that even if it is true that the protection of minorities and parliamentary representation are too serious things to let only lawyers deal with them, it is also true that lawyers will play just as important a role in the elaboration of the whole issue as politicians and of course the minorities themselves.
2.2 Recommendations of the Lund Declaration
The other conference took place in a Swedish city — Lund — upon the initiative of the OSCE High Commissioner for National Minorities with the participation of experts from various countries of the world.
The purpose of the Lund Recommendations, like The Hague and Oslo Recommendations before them, is to encourage and facilitate the adoption by States of specific measures to alleviate tensions related to national minorities and thus to serve the ultimate conflict prevention goal of the HCNM. The Lund Recommendations on the Effective Participation of National Minorities in Public Life attempt to clarify in relatively straight-forward language and build upon the content of minority rights and other standards generally applicable in the situations in which the HCNM is involved.
THE LUND RECOMMENDATIONS ON THE EFFECTIVE PARTICIPATION OF NATIONAL MINORITIES IN PUBLIC LIFE
I. GENERAL PRINCIPLES
1) Effective participation of national minorities in public life is an essential component of a peaceful and democratic society. Experience in Europe and elsewhere has shown that, in order to promote such participation, governments often need to establish specific arrangements for national minorities. These Recommendations aim to facilitate the inclusion of minorities within the State and enable minorities to maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State.
2) These Recommendations build upon fundamental principles and rules of international law, such as respect for human dignity, equal rights, and nondiscrimination, as they affect the rights of national minorities to participate in public life and to enjoy other political rights. States have a duty to respect internationally recognized human rights and the rule of law, which allow for the full development of civil society in conditions of tolerance, peace, and prosperity.
3) When specific institutions are established to ensure the effective participation of minorities in public life, which can include the exercise of authority or responsibility by such institutions, they must respect the human rights of all those affected.
4) Individuals identify themselves in numerous ways in addition to their identity as members of a national minority. The decision as to whether an individual is a member of a minority, the majority, or neither rests with that individual and shall not be imposed upon her or him. Moreover, no person shall suffer any disadvantage as a result of such a choice or refusal to choose.
5) When creating institutions and procedures in accordance with these Recommendations, both substance and process are important. Governmental authorities and minorities should pursue an inclusive, transparent, and accountable process of consultation in order to maintain a climate of confidence. The State should encourage the public media to foster intercultural understanding and address the concerns of minorities.
II. PARTICIPATION IN DECISION-MAKING
A. Arrangements at the Level of the Central Government
6) States should ensure that opportunities exist for minorities to have an effective voice at the level of the central government, including through special arrangements as necessary. These may include, depending upon the circumstances:
* special representation of national minorities, for example, through a reserved number of seats in one or both chambers of parliament or in parliamentary committees; and other forms of guaranteed participation in the legislative process;
* formal or informal understandings for allocating to members of national minorities cabinet positions, seats on the supreme or constitutional court or lower courts, and positions on nominated advisory bodies or other high-level organs;
* mechanisms to ensure that minority interests are considered within relevant ministries, through, e.g., personnel addressing minority concerns or issuance of standing directives; and
* special measures for minority participation in the civil service as well as the provision of public services in the language of the national minority.
B. Elections
7) Experience in Europe and elsewhere demonstrates the importance of the electoral process for facilitating the participation of minorities in the political sphere. States shall guarantee the right of persons belonging to national minorities to take part in the conduct of public affairs, including through the rights to vote and stand for office without discrimination.
8) The regulation of the formation and activity of political parties shall comply with the international law principle of freedom of association. This principle includes the freedom to establish political parties based on communal identities as well as those not identified exclusively with the interests of a specific community.
9) The electoral system should facilitate minority representation and influence.
* Where minorities are concentrated territorially, single-member districts may provide sufficient minority representation.
* Proportional representation systems, where a political party's share in the national vote is reflected in its share of the legislative seats, may assist in the representation of minorities.
* Some forms of preference voting, where voters rank candidates in order of choice, facilitate minority representation and promote inter-communal cooperation.
* Lower numerical thresholds for representation in the legislature may enhance the inclusion of national minorities in governance.
10) The geographic boundaries of electoral districts should facilitate the equitable representation of national minorities.
C. Arrangements at the Regional and Local Levels
11) States should adopt measures to promote participation of national minorities at the regional and local levels such as those mentioned above regarding the level of the central government (paragraphs 6-10) The structures and decision-making processes of regional and local authorities should be made transparent and accessible in order to encourage the participation of minorities.
D. Advisory and Consultative Bodies
12) States should establish advisory or consultative bodies within appropriate institutional frameworks to serve as channels for dialogue between governmental authorities and national minorities. Such bodies might also include special purpose committees for addressing such issues as housing, land, education, language and culture. The composition of such bodies should reflect their purpose and contribute to more effective communication and advancement of minority interests.
13) These bodies should be able to raise issues with decisionmakers, prepare recommendations, formulate legislative and other proposals, monitor developments and provide views on proposed governmental decisions that may directly or indirectly affect minorities. Governmental authorities should consult these bodies regularly regarding minority-related legislation and administrative measures in order to contribute to the satisfaction of minority concerns and to the building of confidence. The effective functioning of these bodies will require that they have adequate resources.
III. SELF-GOVERNANCE
14) Effective participation of minorities in public life may call for non-territorial or territorial arrangements of self-governance or a combination thereof. States should devote adequate resources to such arrangements.
15) It is essential to the success of such arrangements that governmental authorities and minorities recognize the need for central and uniform decisions in some areas of governance together with the advantages of diversity in others.
* Functions that are generally exercised by the central authorities include defense, foreign affairs, immigration and customs, macroeconomic policy, and monetary affairs.
* Other functions, such as those identified below, may be managed by minorities or territorial administrations or shared with the central authorities.
* Functions may be allocated asymmetrically to respond to different minority situations within the same State.
16) Institutions of self-governance, whether non-territorial or territorial, must be based on democratic principles to ensure that they genuinely reflect the views of the affected population.
A. Non-Territorial Arrangements
17) Non-territorial forms of governance are useful for the maintenance and development of the identity and culture of national minorities.
18) The issues most susceptible to regulation by these arrangements include education, culture, use of minority language, religion, and other matters crucial to the identity and way of life of national minorities.
* Individuals and groups have the right to choose to use their names in the minority language and obtain official recognition of their names.
* Taking into account the responsibility of the governmental authorities to set educational standards, minority institutions can determine curricula for teaching of their minority languages, cultures, or both.
* Minorities can determine and enjoy their own symbols and other forms of cultural expression.
B. Territorial Arrangements
19) All democracies have arrangements for governance at different territorial levels. Experience in Europe and elsewhere shows the value of shifting certain legislative and executive functions from the central to theregional level, beyond the mere decentralization of central government administration from the capital to regional or local offices. Drawing on the principle of subsidiarity, States should favourably consider such territorial devolution of powers, including specific functions of self-government, particularly where it would improve the opportunities of minorities to exercise authority over matters affecting them.
20) Appropriate local, regional, or autonomous administrations that correspond to the specific historical and territorial circumstances of national minorities may undertake a number of functions in order to respond more effectively to the concerns of these minorities.
* Functions over which such administrations have successfully assumed primary or significant authority include education, culture, use of minority language, environment, local planning, natural resources, economic development, local policing functions, and housing, health, and other social services.
* Functions shared by central and regional authorities include taxation, administration of justice, tourism, and transport.
21) Local, regional, and autonomous authorities must respect and ensure the human rights of all persons, including the rights of any minorities within their jurisdiction.
IV. GUARANTEES
A. Constitutional and Legal Safeguards
22) Self-governance arrangements should be established by law and generally not be subject to change in the same manner as ordinary legislation. Arrangements for promoting participation of minorities in decision-making may be determined by law or other appropriate means.
* Arrangements adopted as constitutional provisions are normally subject to a higher threshold of legislative or popular consent for their adoption and amendment.
* Changes to self-governance arrangements established by legislation often require approval by a qualified majority of the legislature, autonomous bodies or bodies representing national minorities, or both.
* Periodic review of arrangements for self-governance and minority participation in decision-making can provide useful opportunities to determine whether such arrangements should be amended in the light of experience and changed circumstances.
23) The possibility of provisional or step-by-step arrangements that allow for the testing and development of new forms of participation may be considered. These arrangements can be established through legislation or informal means with a defined time period, subject to extension, alteration, or termination depending upon the success achieved.
B. Remedies
24) Effective participation of national minorities in public life requires established channels of consultation for the prevention of conflicts and dispute resolution, as well as the possibility of ad hoc or alternative mechanisms when necessary. Such methods include:
* judicial resolution of conflicts, such as judicial review of legislation or administrative actions, which requires that the State possess an independent, accessible, and impartial judiciary whose decisions are respected; and
* additional dispute resolution mechanisms, such as negotiation, fact finding, mediation, arbitration, an ombudsman for national minorities, and special commissions, which can serve as focal points and mechanisms for the resolution of grievances about governance issues.
II.
Minorities’ right to their identity
1. Cases of unlawful and ‘necessary’ violation of the prohibition provided for in Article 7 (1) of the Act on the Rights of National and Ethnic Minorities (Nektv)., the natural limitations of the right to identity
The declarative provisions comprised in the preamble to the Nektv. and Article 3 (2) of the act clarify that the Republic of Hungary treats the right to national and ethnic identity as a fundamental human right to which both natural persons and the particular national ethnic groups of such persons are equally entitled. The act on minorities itself has set up the system of means and instruments in the spirit of this declaration - undertaking to unconditionally recognise minorities’ right to identity, at the level of the individual and the collective rights - that is more or less suitable for stopping or at least slowing down the undoubted assimilation processes observed in recent decades.
Majority groups and the nations in the political sense of the word have never been as tolerant enough - neither in Hungary nor in other countries with ethnic minorities - to enable one to say that concerns and fears originating from history are exaggerated.
Therefore, the provision comprised in Article 7 (1) of the Nektv. lays down the following rule that is considered as a guarantee for the protection of minorities: “Undertaking and expression of belonging to a national or ethnic group or minority is an exclusive and unalienable right of the individual. No one may be obliged to give a declaration of his or her belonging to a minority group.”
The above prohibitory regulation was adopted by the legislator to enable the state to prevent the preparation of any lists of national or ethnic minorities, i.e. to protect the rights of citizens belonging to minorities. Some of the provisions of No. LXIII Act of 1992 on the protection of personal data and the publicity of data of public interest (hereinafter: Avtv.), for instance the interpreting provision in Article 2 (2/a) qualifies data on racial origin, membership of a national or ethnic group as special data for the handling of which the law provides very strict rules, indeed, any misuse of special personal data is sanctioned by means of the criminal code.
The right to the assumption and expression of identity cannot be fully exercised, despite the above guarantee rules. For certain special rights provided for in the act on minorities cannot be exercised without the subject-at-law giving a declaration on his or her identity, his or her belonging to a given minority.
The individual minority right regulated in Article 12 (1) of the Nektv. enables individuals belonging to minorities to freely choose their own and their children’s given names, the registration of their own family names and given names and the use of such names in official documents as well.
According to Article 12 (2) of the Nektv., however, one needs to submit an application for bilingual registration and the issuance of bilingual personal documents, i.e. clearly, the exercising of the right is conditional in this aspect on making an oral or written declaration concerning one’s belonging to a minority group.
The freedom of assumption of one’s identity is also relative in respect of another special collective right that is the right to establish minority self-governments. The holding of minority self-governmental election is to be initiated by at least five electors who declare that they belong to the given minority, i.e. in this case again the exercising of the right is subject to a declaration concerning one’s identity.
In these cases - an in the case of exercising other special rights - it is not possible for anyone to question the validity of a declaration of one’s belonging to a minority group, despite the definitely observed efforts or justifiable interests on the basis of which this right should be granted - in certain exceptional cases - at least to communities of minorities that may be considered as legitimate.
Of course the state must by all means respect the right to identity and in this aspect no state organ or authority can vindicate the right that could enable it to issue resolutions ‘from top down’ through any official act in respect of the question of belonging to a minority. Furthermore, constitutional concerns would be raised if the state could decide which organisation to consider as legitimate representative of a minority.
Based on the fundamental right to self-governance only the community of electors may establish legitimate minority organisations - especially minority self-governments that are subjects-at-law under the common Hungarian law - exclusively through democratic and preferably direct elections.
It is a long-disputed question whether the provision in Article 68 (4) of the Constitution - under which national and ethnic minorities may establish local and national self-governments - is not contrary to the rule in Article 70 (1) OF THE Constitution providing for the generality of the active and passive franchise.
For under the prevailing statutory conditions any Hungarian citizen with the right of vote may vote and may be elected in minority self-government elections - regardless of whether or not he or she is a member of the given minority. I.e. the political activity of the society will necessarily influence the establishment of a minority self-government. Consequently, the question of who will be a member of a given minority self-government is not necessarily and not exclusively decided by the votes of the members of the given minority.
Considering that there is an apparent or perhaps real collision between to constitutional rules it seems doubtful whether the Constitutional Court would undertake to give an interpretation of the Constitution in order to close the above dispute or to eliminate doubts. It seems a much more viable solution if Parliament itself undertook to resolve the dispute - either through a suitable amendment to the Constitution or by introducing appropriate implementing rules for the act on minorities.
Without a registration of minorities or a list of minority electors it does not seem to be possible to restrict the active franchise in the area of minority self-governmental elections. In our view, however, it is possible to solve the problem; on the one hand, by adopting a rule on the technique of the election, i.e. by holding municipal governmental and minority self-government elections at separate points in time and by subjecting passive franchise - the right to be elected - to a declaration.
In respect of the undertaking of a function under the public law of Hungary the constitutional concerns relating to registration and the related concerns in respect of the protection of personal data are not well-founded, because, as a fundamental rule, it has been assumed and considered even so far, that candidates for a minority self-government, members of minority a self-government and advocates of minorities are members of such minorities. On the other hand, such obligation to make declarations already exists in the case of the application of various forms of subsidies and other financial aid for minorities. (E.g. the pre-conditions of the validity of applications submitted to the Public Foundation for Hungarian National and Ethnic Minorities and the Public Foundation for the Roma Minority of Hungary included a declaration of belonging to such minorities, but this practice has not been considered as objectionable by the parliamentary commissioner for the rights of minorities or the commissioner for the protection of personal data.)
Summing up the above train of thought our position is that the prohibitory provision in Article 7 (1) of the Nektv. has become outdated and the improvement of legislation pertaining to minorities, the termination and prevention of any unlawful application of the law necessitates the declaration that the law requires in some cases - particularly in the case of assumption of a position in a minority self-government, in the case of applying for or using state (public foundation) benefits and grants - that the given individuals belonging to the given minorities should issue declarations on their membership of the given minority.
As has been referred to above, the exercising of some special minority rights and the use of certain benefits has even so far been dependent on giving formal declarations by the individuals concerned, of their belonging to the given minorities - or at least on indication of belonging to such minorities by their behaviour - therefore our proposal is not really new; rather it is aimed to ‘confirm’ the current practice.
2. The problem and proposed limitation of ‘double or multiple association’
Article 7 (2) of the Nektv. declares that “the right to national and ethnic minorities and the undertaking and expression of belonging to such minorities does not preclude the recognition of double or multiple association”.
Further to the above declarative provision the Nektv. does not offer precise guidance on what is to be understood by the recognition of double or multiple association, whether there is any concrete legal impact of the choice and expression of multiple identity, and if there is, then what are those impacts. By the very nature of the it is possible for one to belong to more than one national or ethnic minorities, if the ancestors of a natural person belonged to various minorities and the given individual assigns importance to each of such associations.
In the course of exercising various special rights granted by the minorities act it is not possible to express the various associations at the same time. It does not seem to be possible, for instance, for someone to choose given names of various minorities at the registration of his or her child or to ask for entering the child in the registry and for making out his or her personal documents in the languages of a variety of ethnic languages.
The fundamental goal of the act on minorities is - as has been mentioned - to provide special rights concerning culture and education primarily for ethnic minorities, to prevent and stop assimilation. This is the objective among other things of the operation of the domestic schooling system for minorities and of classes and study groups of minorities in schools following the general curriculum. It is not possible - or it may be possible only under very exceptional circumstances - to take the opportunity provided by the system of minority education for the purpose of preserving identity if one intends to express double or multiple association. Therefore, parents belonging to different minorities have to ‘rank’ the minorities when choosing the type of education for their children even if there is a choice of more than one minority education systems.
In the case of undertaking roles under the public law of Hungary at present there is both a conceptual and a practical possibility for a candidate to try to acquire a mandate representing different minorities in successive elections. As it was pointed out by the parliamentary commissioner for the rights of minorities pointed in his report summarising the lessons drawn from the self-government elections on 18 October 1998 it may result in anomalies relating to constitutional rights, indeed, it may lead to the discrediting of the entire legal system for minorities if a minority politician may chose without any collective control, at his own discretion, arbitrarily, on which minority he wants to represent in the given term.
It is a well known fact that some minority groups cannot be regarded homogeneous, indeed, their division sometimes takes the form of questioning each other’s legitimacy and each other’s membership of the given minority. In the case of the undertaking of functions under the public law of Hungary - primarily that of functions in minority self-governments - in order to prevent violations of the constitution it seems to be indispensable to amend the Nektv. by introducing provisions that impose an obligation on candidates to issue unambiguous declarations of their belonging to the given minority, which would also entail a restriction to the passive franchise. The recognition and respect by the state of double or even multiple association would be possible within the limits of objective possibilities, it should be promoted by guarantee rules in all other respects, that is in the areas of culture and education.
Passive franchise - that is the possibility of one’s being elected member of a minority self-government, and, after the introduction of the necessary statutory conditions, of Parliament - should be possible to exercise only in respect of one minority and - if our proposal is adopted - in the future it would not be possible for someone to keep changing his or her identity at his or her discretion, in successive terms of government.
The practical implementation of this arrangement would not be difficult either because the organs implementing the elections have registries both on candidates and on mandated representatives, therefore, only the procedural rules should be elaborated for the way in which it should be possible to clarify at the time of undertaking a public function whether the given candidate has passive franchise to represent the given minority.
Summing up the above, it is clear that there have been natural obstacles to the enforcement of the statutory provision concerning the recognition of ‘double or multiple association’, nevertheless, in certain cases, in respect of the undertaking of functions in self-governments, functions of advocates for minorities and in the future the undertaking of the function of member of Parliament, the maintenance of this rule is not only not justified, indeed, it should be seriously considered whether an exception to the rule should be introduced.
3. Definitive elements of existence as member of a minority, proposal “de lege ferenda”
Under Article 1 (2) of the Nektv., in a legal sense the following shall qualify as national or ethnic minority “any ethnic group that has been living in the territory of the Republic of Hungary for at least a century which is in minority within the population of Hungary, whose members are Hungarian citizens, that is distinguished by other members of the society by its own language, culture and traditions, and at the same time displays such awareness of belonging together that is aimed at the preservation of the above and at the expression and protection of the interests of its historically evolved communities”.
The definition offered by the act on minorities is only seemingly simple and it is regarded as problematic in some aspects. For it is an indisputable fact that as a result of the natural and artificial assimilation processes in Hungary over the past century a language, culture, indeed, even the cultivation of traditions, cannot be regarded as exact criteria for an ethnic minority. The ‘awareness of belonging together’ as a characteristic of an ethnic minority is rather subjective and relative especially if individuals and communities of the same minority distance themselves from others of the same minority, i.e. if they distinguish within the minority. We should not provide concrete examples for the above in this report but it is a fact that the ‘own language’ - especially if its day-to-day use, language proficiency is taken into account - cannot be regarded as a definite criterion of a minority that can be taken into account without reservations.
On the other hand, it is only natural and self-evident that nobody can be deprived of the right of being proud of his or her ethnicity, of undertaking and expressing his or her belonging to the given minority and minority communities have the right to decide at their discretion as to who they consider as belonging to them - perhaps in view of the given individual’s origins (ancestry).
The complaints filed in 1999 with the commissioner for minorities included some in which members of various minority self-governments questioned the legitimacy of other members of the same minority self-governments assuming that the individuals concerned do not belong to the given minority community, indeed, that such individuals have nothing to do with the minority they claim to represent.
Special mother tongue related rights of minorities and other associated individual and collective minority rights
1. Language related rights associated with the cultivation of family traditions, observing holidays, and related religious ceremonies, with special regard to the registration of birth
Article 11 of the Nektv. specifies among rights of minorities that persons belonging to minorities are entitled to the recognition and respect of minority traditions pertaining to the family, to the cultivation of their family relationships, to observing family holidays in their mother tongue and to request the holding of church services relating to such events in their mother tongue.
This section of the Nektv. provides provisions concerning the protection of the private sphere of members of minorities and of their human relationships. These rights are granted to members of minority communities as a fundamental human right as well but it has its importance as a guarantee that the legislator declares these in the Nektv. as well.
Under the effective statutory rules no official records may be kept of religious or other beliefs and convictions of Hungarian citizens, therefore, there are no statements or statistics on the religious life of individuals professing to be members of minority groups, consequently, we need to rely on more or less precise estimates. It is well known, however, that the churches still play a very important role in the preservation and handing down of the awareness of identity, the languages and cultures of minorities.
Unfortunately, the requisites for practising religious life in the mother tongue are not considered as available for minorities. The reason for this is that there are not enough clergymen belonging to the various national/ethnic minorities or with suitable language proficiency. Consequetnly, the Nektv. lays down only the right to claim church services in the mother tongue, instead of the right to be actually provided with such services. This means in essence that in the case of a request by a minority congregation for service in their own mother tongue the given church cannot refuse to at least contemplate the satisfaction of the request, within the limits of their circumstances, at least in principle.
It is a different question, of course, that the state or an authority has no right - or possibility - to monitor and especially to control whether the various churches do take their opportunities to enable national minorities to fully exercise their language related rights, or whether there is any actual demand on the part of the congregation to have church services in their own mother tongue. Perhaps it should be mentioned here that last year the parliamentary commissioner for the rights of minorities was approached only by one congregation of a German speaking village only on one occasion to ask the assistance of the ombudsman to have the church’s official decision on the transfer of their clergyman who had conducted services in German language on certain occasions. In this case - in respect of the provisions in Article 60 (3) of the Constitution on the separation of state and church and the provisions on the scope of power in No. LIX Act of 1993 on the parliamentary commissioner for the rights of minorities (hereinafter: Obtv.) - it was simply impossible for us to take action, all we could do was to communicate in an informal channel to the competent episcopal office that there is an appreciable request in the congregation living at the municipality concerned for the holding of church services in German language and we asked that the diocese should take this into account as far as possible when appointing clergymen.
In this report mention should be made of the problems associated with the application of the law that are related to the inadequate or contradictory legal regulation of the (birth) registration of individuals belonging to minorities.
Under Article 12 of the Nektv. members of national and ethnic minorities may request registration of their own family names and given names and those of their children, in their own mother tongue. The practical implementation of this may be difficult because under the provisions concerning the keeping of such registries only the appointed registrar (the notary or in some cases the mayor) may enter items in the registry in a given registry district.
Another set of problems relating to registration is related to the freedom of assumption and expressing of identity, as is indicated by the following example:
One of the complainants asked for our assistance to the registration entering of the given name of his daughter. The intended name was the Serbian ‘Jelena’. Since the name ‘Jelena’ is not included in the Hungarian Book of Christian Names the registrar said that he would register the name if the complainant submits a written declaration on his belonging to the Serbian minority. The complainant refused to give such a declaration for in his view this would have constituted covert registration of his nationality.
In the course of the investigation of the case we looked into the provisions of the law decree No. 17 of 1982 on registries and the wedding procedure (hereinafter Atvr.) and consulted officials of the Registry Department of the Ministry of the Interior as well as the registrar who was involved in the concrete case.
Article 27 (4) of the Atvr. provides that only “a maximum of two given names listed in the Hungarian Book of Christian Names, matching the gender of the child may be registered in the order specified by the parents. Members of ethnic minorities living in Hungary and those speaking such languages may use given names of their own national minorities without having to prove their belonging to the given ethnicity.”
The certification of belonging to an ethnicity is not permitted and not necessitated by the Atvr - in line with the provisions of the act on minorities - however, it is a question whether a person under the obligation of reporting an event that is to be entered in the register - specifically, the parent - may be called on to give a declaration on his or her belonging to a minority (ethnicity) this being the reason for his or her intending to exercise the right granted by law to select a given name for his or her child as befits his or her minority identity, instead of a Hungarian Christian name.
Assuming that the registrar may lawfully ask for a declaration by the parent as a condition for his or her exercising his or her right it is a question whether this declaration qualifies as a proof of belonging to the given ethnic group or whether it is contrary to the provision comprised in Article 7 (1) of the Nektv. which stipulates that “nobody may be obligated to give a declaration on belonging to a minority group”.
As has been outlined above, the freedom of assuming and declaring identity is not an absolute type of right, there are natural limitations on this freedom and in this case such limitation is constituted by that the expression of a request for the registration of a minority (ethnic) given name that is the exercising the right itself, assumes the making of such declaration in some form - in writing or orally. In our view demanding of a declaration is not necessarily unlawful for the registry authority - as other authorities - is not entitled to question the truth of such a declaration, i.e. anyone who has a new-born baby in Hungary may ask for the registration of any of the given names of the legally recognised national or ethnic minorities listed in the Nektv.
In relation with the above case, by the way, much to our surprise, we had to realise that there is practically no such thing as a ‘Hungarian Book of Christian Names supplemented with given names of ethnic minorities’. There is only a single uniform Hungarian Book of Christian Names which of course definitely includes given names of Slavonic, German and other origins that may as well be considered as names of ethnic minorities.
We were informed by the Registry Department of the Ministry of the Interior that by requiring a declaration they intend to prevent citizens who are not of minority origins from having given names registered that are not included in the Hungarian Book of Christian Names by taking advantage of the possibilities offered by the law. For over recent years in some cases parents declaring their belonging to minorities, had the names of characters of certain foreign television serials (‘Dzsoki, Ronaldo’) registered as given names of the minorities concerned. This procedure of the registrars has been justified by the fact that they ‘cannot judge or decide whether the given name asked to be registered as the Christian name of the child is not one of the given names used in one of the Roma dialects that the register is not a speaker of’.
Based on an overview of the cases that we learned of and the related legal regulations it is considered that the effective regulation of the registration of minority given names and the associated practices of the application of the law raises concerns that can be eliminated only through proper amendments to the relevant legal regulations.
It is primarily the question of principle that should be decided whether there is any justification for the maintenance of the rule under which only those citizens may choose so called ‘minority given names’ for their children who declare themselves to belong to some minority in the legal sense of the term. As has been mentioned, a number of given names of minority origins (e.g. Iván, Ingrid etc.) have been listed in the Hungarian Book of Christian Names the registration of which may be requested by anyone. Another relevant fact is that names that sound foreign or so called ethnic minority names are normally chosen for their children by parents who fell close to or are associated with the given minority in some way. It is assumed therefore, that with the exception of certain - presumably temporarily ‘fashionable’ foreign given names - parents will choose names for their children as befits their identity or family traditions.
In principle, there are various options for resolving the problem. One such possibility is where the parent who is a member of an ethnic minority asks for the registration of his or her child with an ethnic given name where the ethnic minority concerned does have a ‘mother country’ or a country where the given language is an official language in which case the given individual should be entitled to choose a name for his or her child from the German, Bulgarian, Slovakian etc. book of given names, in this case from a complete list. One possible disadvantage of such an arrangement could be that the procurement of the books of given names of the ethnic minorities concerned would entail a substantial cost for the registrar offices or if the legislator imposed the obligation of supplying proof concerning the appropriate of the chosen given name on the parent concerned, then the obligations of the customer would be enhanced.
An appropriate alternative would be offered - in fact in concert with the current legal regulation - by the existence of a Hungarian Book of Given Names supplemented by names of ethnic minorities. In this case the various supplements could constitute an annex to the book of given names and these annexes would list the given names that would be assumed to be requested, by ethnic minority. In compiling the annexes similar publications used in the mother countries of the various minorities could be taken into account and - since this is a special minority right - the national self-governments of the minorities should also be involved in the preparation of the lists.
In summary; setting up of statutory restrictions on the choice of the given name to be registered may be justified only in order to protect the individual concerned or the society as a whole. Therefore, statutory guarantees should be created to ensure the prevention of the registration of given names that would violate personality rights or that cover any demeaning expression but we should consider it an unjustified restriction if parents who are either Hungarian or who do not chose to expressly undertake their ethnic identity, were restricted from choosing names of ethnic minorities for their children.
2. Minorities’ rights pertaining to the names of public places (streets)
There was a marked increase last year in the number of submissions asking the parliamentary commissioner for the rights of minorities to give an interpretation of Article 53 of the Nektv. on the posting names of municipalities and streets.
The above provision of the Nektv. provides that a municipal government shall be obliged to ensure as required by a minority self-government operating in its territory of competency that the plates and boards showing the names of municipality and streets should also bear those names in the language of the given minority and that the resolutions and notices of the municipal government be disclosed also in the language of the minority besides Hungarian.
The act on minorities does not provide additional rules for the enforcement of the above right therefore some of the municipal governments consider it only natural - based on a grammatical interpretation of the regulation - that the legislator imposed an obligation on the municipal government that it has to meet based on a motion put in by the minority self-government.
Before a detailed analysis of the topic it should be pointed out that the statute is rather imperfectly worded in respect of this special right of minorities, because it enables this right to be taken undue advantage of and also because it imposes a mandatory task on municipal governments which entails rather substantial costs that are not provided for. In essence, this statute leads to insecurity in law.
To illustrate the problem, let us present some of the typical cases that we have had to deal with:
The minority self-government of a town in Transdanubia turned to the municipal government with the request that besides the Hungarian street name plates the former German names of public places should also be shown. The mayor of the municipality asked for our position on whether this solution - that is the posting of the previous, no longer used names of places - is permitted by the above provision of the law or whether they comply with the law if they translate the names of the current street names - word by word - into German or if they post the current Hungarian names using the letters used by the language of the minority.
Our position on this case was that the provision of the Nektv. according to which the street names in the language of the minority are to be posted ‘along with the Hungarian wording and way of writing, with identical content and in identical form’ may not be interpreted as though some form of a ‘verbatim’ translation or metaphase were to be applied. By this wording the legislator intended only to provide a minimum guarantee for the assertion of the interests of the minority if the council and the minority self-government cannot agree on the name to be used. It is possible to deviate from the form specified in the Nektv. in a ‘despotise’ way, i.e. there is no legal obstacle to entering the former German names that used to be applied to streets, along with the Hungarian wording. In this concrete case we did not see this solution as problematic for there were no material differences between the names of the public places and the names proposed by the minority self-government, indeed, some of them could be regarded as literal translations. After we issued our position statement we learned from the media that in that town street name plates of the names used by the minority were posted in that town.
3. Position, analysis of the rights of minorities with respect to the media, proposals and definitions of terms “de lege ferenda”
In our view there are two constitutional requirements to be expressed with respect to the provision of minority programmes. On the one hand, any provider of programmes performing public services in any form should objectively inform the users of its services on any event considered as material from the aspect of minorities in its reception area.
Furthermore, public service programme providers and public programme providers should satisfy the needs of citizens living and communities of minorities in their reception areas arising from their rights to identity and the use of the mother tongue, and they also have to produce programmes required for the preservation of their awareness of their identity as minorities. (They have to perform their obligation to provide information in the languages of the minorities as well, they must present the life of minority communities to the whole of the society and they also have to produce programmes forming part of the cultures of minorities and the cultivation of minority traditions.)
On the other hand, the state must make it possible for minorities to properly exercise their rights arising from cultural autonomy. Minorities are entitled to establish and maintain institutions in the area of the provision of minority programmes and the state must promote - and must not hinder - such efforts of minority communities.
A public service corporation established by a national self-government and a municipal government planned to provide minority programmes at the district level. According to the relevant provision of the media act the National Radio and Television Board (ORTT) may authorise a public service corporation in the exclusive ownership of the self-government of a national or ethnic minority to provide programmes without having to bid for such authorisation if there is no other way for the satisfaction of the requirements of the minority in the given reception area. The Board asked for our position on whether the jointly founded public service corporation qualifies as a public service corporation under the media act.
Our position was that the relevant provisions of the media act are aimed to prevent anyone from the obligation of bidding for the right to provide programmes simply by reference to the performance of tasks of special public service provision. Consequently, in our view, the public service corporation in the exclusive ownership of the national and local minority self-government should qualify as a public service corporation meeting the criteria laid down in the media act, as should any public service corporation established jointly by self-governments of more than one minorities.
Furthermore, the state should facilitate the adoption of radio and television programmes originating from the mother countries of minorities. In our view the state does not fully satisfy this obligation laid down in the Nektv. The state should pursue active foreign political activities to ensure the exercising of the rights of national and ethnic minorities. For an ethnic minority that does have a mother country needs assistance both by the Hungarian state and the mother country if it is to properly exercise part of its rights.
In our view both the mother counties concerned and the Hungarian state should show more initiative in order to resolve this question. Bilateral international agreements should provide for the conditions and requisites of minority programme provision. Among other factors, the international aspects of the media have prompted us to assess during the period following the completion of the report the extent to which the Hungarian state has satisfied its obligations under the provisions of the Nektv. calling for international action to be taken by the state.
The relevant statutory rules - apart from the lack of the aforementioned international agreements - fully meet the above listed requirements. The media act and the act on minorities fully satisfy the obligations that have been assumed by Hungary under the relevant international agreements (frame agreement on the protection of minorities, language charter).
In reality, however, these principles are not fully observed in practice. Programme providers have not been found to be providing information in a satisfactory way and to a satisfactory extent on events of importance from the aspect of minorities, public service programme providers and public programme providers do not completely satisfy their obligation of providing information in minority languages, they do not properly present and introduce minority communities to the whole of society and minority communities are not operating programme provider institutions.
Programmes are provided (broadcast) for minority communities by the programme providers in charge of performing tasks of public service provision. Such programmes, however, are in a constant conflict - on account of their role and nature - with the general types of programmes in order to preserve their programme time and position within the structure of programmes.
The above listed phenomena originate from variety of factors. One of the general types of reasons is that minorities live dispersed across the territory of Hungary, and the majority of the members of various minorities have basically double identities. This hinders the formulation of the requests of minorities, and it would assume such a programme provider structure that cannot be ensured under the current structure.
Another general reason is that the institution systems that should ensure the enforcement and application of the fundamental principles of public service provision have not fully developed, have not been properly established and are not adequately operating in the media. Also, there is no adequate awareness of the significance of the issues of minorities either in the public opinion or in the provision of services. Institutions enforcing public interest as against the autonomy of programme producers are not functioning as they should be - as is the case in other areas of public life.
The special reason for or cause of such phenomena relating to the media of minorities is that albeit the nation-wide self governments of minorities are represented in the decision making bodies of public service programme providers and they are entitled to make their own decisions on the principles of the programme time allotted to the given minorities but without appropriate decision making and co-ordination mechanisms the principles represented by the national self-governments cannot be reflected in the day-to-day practice of programming.
Another problem is that the programme providers performing public service functions are not representing the perspectives and interests of minorities efficiently enough in their own regulatory and decision making autonomies. The regulations on programme provision do not include rules ensuring the observation of the interests of minorities and if they do, such rules are not complied with. The representation of minorities by personalities and principles is not properly ensured either.
In our view this situation could be changed, further to the resolving of general problems, through the following
a) while respecting the autonomy of programme producers, there should be a permanent contact between the nation-wide minority self-governments and the programme providers performing public tasks;
b) the observance of viewpoints and interests of minorities in putting together their programmes should be made a mandatory obligation for those producing public service programmes - and those violating this obligation should be sanctioned;
c) there should be a larger number of programme producers who are obviously members of minorities, who would popularise the use of the mother tongue, among the producers of public service programmes, with special regard to those actually appearing on the screen.
ad a) Our initiatives were among the factors that have triggered attempts made to set up and operate such fora among the various public service programme providers, these attempts, however, did not last long. This is why we welcomed the consultation on 28 October 1999 organised by the ORTT and entitled ‘The situation of minority programme provision in Hungary’ where a representative of our office delivered a presentation.
ad b) To our knowledge the ORTT has not applied any sanction since the entry into force of the law against anyone on account of having violated the provisions of the law aimed to ensure the observance of the viewpoints and interests of minorities. In our view the enforcement and the exercising of the rights of minorities could be improved by strengthening the controlling system.
ad c) It would be particularly important to have public service programme providers contribute to the reduction of the prejudice against the Roma minority in the Hungarian society also with the help of Roma programme producers appearing on the screen.
The “minorities’ day” in the Hungarian Radio and on Duna Television last year is mentioned here as an example worth following. It should be considered useful if by similar initiatives other public service programme providers also assisted the treatment of the issue of minorities in the spirit as outlined in the media act as well.
4. Analysis of and provision for the rights relating to the education of minorities, directions of progress
Communities of minorities and their members have the broadest ranges of rights in relation with education. An education institution - or rather, the local government exercising the rights of the organisation maintaining such institutions - have to provide minority education if at least eight parents declaring themselves to be member of the same minority group, ask for such. In practice, this means, that upon the appropriate initiative a class or study group has to be established with a syllabus specifically formulated for the given minority. (It should be noted, though, that the legal regulation is considered as imprecise for in practice it may happen that parents of eight children of different ages or eight children under different education obligation initiate the organisation of minority education. The clarification of the legal regulation may be carried out - which we consider as indispensable for the purposes of implementation - through the next amendment to the minorities act and the authorities in charge of education are ready to do so.)
In each institution where there is minority education agreement by the local minority self-government is required for the key decisions concerning the institute (establishment, termination, budgeting, appraisal of the technical/professional work, rules of organisation and operations, approval and evaluation of education programmes). In institutions that qualify as minority institutions the right of agreement of the local minority self-government also extends to the decisions relating to the individual heading such institution. Unfortunately, the possibility of exercising the right of agreement - or the lack of it on account of its disregarding by the institution maintaining local governments - is a recurring problem in the practice of the commissioner for minorities. The key reason for this is that neither the Nektv. nor any other statue of law imposes any legal consequence on the disregarding of the right of agreement - essentially, a right of veto - and it is not properly clarified what legal consequence would follow a refusal to agree.
The head of the minority self-government of a small municipality submitted an application to our office in which he complained about the municipal government intending to close down the ethnic minority school of the municipality on account of financial considerations.
The submitter of the application and the mayor of the municipality were both informed that the municipal government may implement its plan only with the agreement of the minority self-government, therefore, in principle, it is possible for the local minority self-government to prevent the realisation of the plan of the municipal government. Since, however, in our view, ethnic minority education entails higher unit costs in a small municipality than in a larger one, the state should provide additional funding from the central budget for ethnic minority education in small municipalities. Our arguments were shared by both the minister of education and the chairman of the Office for National and Ethnic Minorities (hereinafter: NEKH). The minister of education informed us of that the ministry also considers the alleviation of the education related problems of small municipalities and the provision of special support to the performance of ethnic minority related tasks as essentially important. Where both of the two problems arise together the ministry intends to provide assistance for a short term solution from its intervention fund, while in order to facilitate a longer term solution the ministry is exploring the possibilities of improving the efficiency of the provision of central budgetary funding.
During the period covered by the report - and ever since the minority ombudsman has been in office - problems have been arising from the lack of the extents of the above listed co-decision making powers and from the lack of clarification of the applicable legal consequences of the violation of those powers.
Although No. LXXIX Act of 1993 on public education (hereinafter: Kotv.) clearly specifies the decisions for which the agreement of the minority self-government is required and it also specifies the rules on the exercising of the right of agreement, in our view in the course of the preparation of decisions the organisations in charge of legality supervision should undertake an enhanced and more initiative role aimed to prevent conflicts and a single uniform reconciliation procedure should be introduced and reconciliation techniques and fora should be established that could be applied in the exercising of any relevant power, which would provide for the practical implementation of the rules on the participation of minority self-governments in the administration of institutions.
Some of the general problems are also observed in the area of education. For instance not even the right of the maintenance of institutions of definitely ethnic in nature can be taken over by the minority self-governments from the municipal governments, even if the municipal government appears to be ready to transfer such rights or functions. Under the provisions of the minorities act there is a conceptual possibility for transferring institutions or for establishing separate schools for ethnic minority communities, however, there are other statutes of law that entail negative discrimination against institutions maintained by minority self-governments. Employees of education (cultural etc.) institutions taken over from municipal governments or from county councils would no longer be covered by the provisions of the act on the legal status of public servants, their employment would not qualify as legal relationship of public service.
It is considered a matter of principle, therefore, it should be noted here: the system of minority self-governance may be filled with real content and substantive self-governance may be ensured for minorities only if they are provided with the possibility of autonomous operation of the institutions that fall within their sphere of interests, and of exercising the rights of the management of institutions similar to those of municipal governments, under similar conditions.
In this aspect our initial concept is that the enforcement of the protection of the rights of national and ethnic minorities - arising from the Nektv. but also from Act on Local Governments (Hereinafter: Ötv.) - is fundamentally a task for local governments which - if the conditions are met - should be shared with minority self-governments. The enhancement of the scope of responsibilities of minority self-governments will not prejudice the autonomy of municipal governments - what we are talking about here is no more than that the administration of some of the local public affairs would be carried out by the self-governments of the minorities, i.e. ultimately they could participate in the administration of local public affairs in a way that would lead to an actual - de facto - reduction of the tasks to be carried out by municipal governments. (No de jure reduction would take place for where there is no minority self-government - for instance if it is dissolved - the municipal government would continue to be in charge of the assertion of minorities’ rights.)
One possible mode for the elimination of the problems associated with the exercising of the co-decision making rights would be through minority self-governments establishing or maintaining institutions. As we have mentioned, despite the fact that minority self-governments would in principle be entitled to do so, during the period that has passed since the entry into force of the law they have not been capable of exercising this right - primarily as a result of the lack of the relevant regulation as well as the necessary funding sources.
In our view in the case of minority institutions performing district or national responsibilities the national self-governments should be enabled to maintain primarily education institutions but also cultural and scientific ones, by meeting certain conditions. Such conditions would include that a certain proportion of parents should agree with the change of the entity maintaining the given institution, the standards of education should not decline and it should be ensured that those who do not intend to participate in the minority education are not left without education.
In this case minority self-governments would exercise the rights of governance by the institution maintaining organisation over the institutions concerned and the obligations arising from this would also be borne by the minority self-governments. Institutions would continue to qualify as institutions maintained by state and self-governmental organisations while their employees could retain their public servant status. Further to the budgetary grant covering a certain proportion of the budget of such an institution the given self-government would be entitled to make proposals to the minister of education concerning the conclusion of an agreement on institution maintenance.
Thus the part of the budget of the institutions that cannot be covered from normative state grants and own revenues would be covered from the central budget through the budget of the ministry of education. In the case of institutions of minorities the central technical/professional governance activity of the state would be performed by the minister in charge of sectoral governance within the framework corresponding to the extent of state governance as may be changed from time to time in agreement with the national self-governments.
The national minority self-governments participate in the elaboration of the fundamental principles of teaching and education services for ethnic minorities and in the appraisal of technical/professional work (in the case of certain institutions performing district or national responsibilities they also participate in their management). Through the National Committee for Minorities (hereinafer: OKB) they can also participate in the performance of central administrative tasks relating to education. Furthermore, OKB exercises a right of agreement in the approval of the fundamental principles of the National Basic Curriculum, the national ethnic minority kindergarten education and school education as well.
The idea of the elimination of the factors complicating the transfer/take-over of ethnic minority type institutions and the idea of creating the legislative pre-requisites enabling it has also been raised in the framework of the working relationship and co-ordination discussions with top officials of the Ministry of the Interior - that has come to be a regular relationship.
In the wake of our discussions with the Minister of the Interior the Ministry of the Interior has expressed its willingness to explore the possibility of whether (primarily education) institutions performing tasks relating to ethnic minorities (as well) can be transferred to be maintained by national minority self-governments.
Thereafter we contacted the national minority self-governments asking for them to name the most important institutions whose maintenance by their national minority self-governments they consider as most essential for the preservation of the awareness of identity of the given ethnic minority. Contrary to our expectations only a few national self-governments listed institutions, that are already performing tasks considered as essentially ethnic minority related, whose right of maintenance they consider should be exercised within their own scope of power but these responses also show that even in the case of the largest domestic minorities the change of the law would affect only 5-6 institutions on an average.
5. Questions of the financing of the performance of minorities cultural (education, mass communication etc.) tasks, proposals “de lege ferenda”
According to Article 27 (3) of the Nektv. a local minority self-government “in its own scope of power - within the limits of the available financial resources - may establish and maintain institutions in particular in the areas of:
a) local public education;
b) local press and electronic media;
c) cultivation of traditions;
d) public cultural activities”.
The Nektv. provides that a minority self-government may maintain an institution within the limits of the available financial resources. Article 58 (2) specifies the sources from which a minority self-government may secure the financial requisites for its operation. These include
“a) budgetary contribution by the state;
b) contribution by the municipal or county government;
c) own revenues (including proceeds of their businesses);
d) contributions from foundations;
e) aid from local and foreign organisations;
f) proceeds from property transferred to minority self-governments;
g) donations”.
In this respect, having reviewed the structure of the subsidies (contributions, grants etc.) provided for the maintenance of institutions of minorities, it is clear that they cover their operational costs from two key sources: the budget of the given municipal government and the budget of the local minority self-government concerned.
In many cases an institution may not even submit an application to a foundation for a grant to cover the costs of the organisation of programmes, events or training courses planned to be provided for members of a minority group, for lack of own funding sources.
This is, in fact, the key question of the financing of institutions of minorities. For at present the state provides financing for programmes of minorities in a normative system on the one hand, while on the other hand, through a system of subsidies from public foundations.
The Nektv. provides for the supporting of minorities and for the financial management and assets of minority self-governments in a separate chapter. The system of financial supports (grants, aids etc.) is outlined in Article 55 (2), stipulating that “To the extent specified in the budget act of the given year the state
a) shall provide supplementary normative subsidy to kindergarten education for minorities and for education at school of (in) the mother tongue;
b) shall ensure the operation of the national and ethnic minority self-governments and shall support the operation of the national or ethnic social organisations in the breakdown to be specified by the decision to be made by Parliament.
(3) Public foundations shall be established in order to support activities aimed at the preservation of the identity of the minorities in Hungary, the cultivation and handing down of their traditions, the cultivation and development of the mother tongue, the survival of their memories and relics and the reduction of the cultural and political disadvantages originating from existence as a minority.
(4) The subsidising activity of a public foundation is an integral part of the financing system of the state aimed to promote the achievement of objectives associated with minorities.”
As we have expressed in several statements of our position we do not consider the programme financing through public foundations as a reassuring arrangement. For at present public foundations have exclusive rights concerning the utilisation of public moneys that may be spent on objectives associated with minorities.
Those performing activities relating to the minorities, however, are not entitled to the subsidy as a civic right. Their subjective entitlement extends exclusively to that they may be informed of the conditions for access to the subsidies and to that they may submit applications for subsidies proving their meeting the relevant conditions. Public foundations are entitled to the right to select subjects-at-law meeting the conditions from among the applicants meeting the criteria. The subsidised minority subjects-at-law are entitled to use the subsidies and the public foundations are entitled to control the use of the subsidies in accordance with the relevant conditions.
As we have expressed on several occasions, financing through public foundations is not justified in the case of regular, recurring tasks. Public education (culture) related activities ensuring the cultural autonomy of minorities, performed by organisations of minorities - on a regular basis - should not be financed through the overly bureaucratic systems of applications as exercised by public foundations.
The right of minorities to their own language, tangible and intellectual culture and historical traditions is declared by law. The subsidising of activities performed on a regular basis in relation with the above cannot depend on whether a given organisation of a given minority applies successfully for a subsidy by a non-governmental organisation established by the state - a public foundation. This method may be applied to the financing of one-off events and programmes which represent one-off tasks but in the case of regularly performed tasks the practice of subsidising through applications submitted to public foundations is considered as problematic. It is considered that financing may be resolved - as the only acceptable way - through a radical transformation of the system of public foundations, through enhancing the role played by the state, through the financing of tasks ensuring cultural autonomy of minorities, performed in relation with the cultural autonomy of minorities, in a normative system.
In its current form, however, the system of normative subsidies causes problems in itself, as is confirmed by the complaints indicated in respect of this issue, - as was the case in former years.
The fundamental right of minorities to self-governance
1. Presentation of the concept, content elements and structure of self-governance, the problems of the system, possible and expedient directions of development and improvement
The mayor of a municipal government submitted an application to our office asking for our opinion concerning the operation of the local minority self-government. In his view the operation of the self-government is questionable from a number of aspects and, as far as he knows, there are no citizens living in the municipality who consider themselves as members of the ethnic minority constituting the self-government.
In our answer we stated that state or local governmental organs may express their position concerning the legality or constitutionality of the operation of a minority self-government only under a statutory authorisation. Neither the Nektv., nor the Obtv. provides specific authorisation to the parliamentary commissioner for the rights of minorities or to a municipal government to express their opinion concerning the operation of a minority self-government, or in other words, there are no clear rules on scopes of competency concerning the expression of observations on legality.
Thus under the relevant statutes of law nobody is entitled to question a declaration by a citizen concerning his or her ethnic identity just as a municipal government is not entitled to question the legitimacy of a minority self-government. Accordingly, the motion had to be rejected as obviously unfounded under the law on parliamentary commissioners.
In the Nektv. the legislator provided communities of citizens belonging to ethnic minorities with the right to establish self-governments, based on the provisions of the Constitution. On the one hand, it provided minority self-governments with the right to submit motions or applications with respect to issues of relevance for ethnic minorities, to higher level authorities, enabling minority self-governments to submit requests or applications to any relevant state or local governmental organ to which these organs are obliged to give substantive response.
It has been found in the course of the operation of the office that state and local governmental organs have so far met their obligations - essentially of providing information - imposed on them by the right of minority self-governments to submit motions and requests etc. to competent authorities, a right that does not restrict their scopes of competency and does not threaten the performance of their tasks. During the period covered by this reports there were typically no cases where the organs holding powers under public law did not meet their obligations under the above rights of minority self-governments.
In our view the contents of the autonomy of minority self-governments are specified exclusively by the provisions of the Nektv. For in our view - and later on we shall try and prove our opinion - the provision of the Ötv. [Article 1 (4)] under which municipal governments may voluntarily undertake all tasks that are not assigned by a statute of law to the scope of responsibilities or power of another organ, does not apply to minority self-governments.
For we have experienced in the case of Roma minority self-governments, that they undertake to perform tasks (including social, aid provision, public utility service provision tasks) - in a way that is reflective of some confusion about their role - that are, on the one hand, assigned by some statute of law (primarily the Ötv.) to the scope of competency of another organ (the municipal government), on the other hand, they themselves do not even have the appropriate competency for the performance of such tasks. The basis of task performance is in some cases the transfer of the competency of the municipal government.
This phenomenon cannot be accepted either from the aspect of the transfer or from that of the assumption of the given task for though it may be true that the transfer of a function is based on the realistic requirement that the representatives of the group that is involved in problem should also participate in the resolving of the problem, however, since the minority self-governments do not have the competency required for the performance of such tasks, the fundamental rights of those concerned, may be prejudiced in the course of the performance of the tasks.
In our view a minority self-government may take over - without constitutional concerns - the exercising of scopes of competency/power from municipal governments only in respect of the scopes of responsibilities and competency/power granted to them by the Nektv. Consequently, in this aspect, our interpretation of the law is tighter than the rule comprised in Article 102/C (2) of the Ötv. which permits the assumption from municipal governments all scopes of responsibilities and competencies with the exception of those performed by a municipal government as an official authority and those relating to the provision of public utility services.
In this case, however, what is regarded as desirable (and this may be one of the possible ways of the continued improvement and development of the legal institution of self-government) that minority self-governments, if the legal, administrative and budgetary conditions and requisites are met and available, should take over institutions from municipal governments and should operate them. (Our proposal on this issue is presented in the section on education.)
In our view a municipal government proceeds in conformity with the constitution if it performs the tasks assigned to it by statutes of law. We cannot accept the practice - not even at the level of intent - which wishes to transfer the performance of competencies relating to the provision of aids, to the minority Roma self-governments in view of the fact that many of the recipients of aids do belong to the Roma minority.
It is considered as a solution that should deserve to be supported if a municipal government intends to integrate in some way in its decision preparing or even its decision making bodies (in most cases these are local governmental committees) the self-governments representing the minorities concerned, since they have valuable information on the problems of their respective communities. In our view in a municipality where members of the Roma minority make up the larger percentage of a local population (even if the local political leadership is comprised primarily of other than Roma individuals) it should be natural that the Roma minority self-government should participate through its delegated representatives in the work of the social, health, education and public safety committees of the given municipal government.
The actual content of the constitutional fundamental right of self-governance as granted to ethnic minorities is comprised of the right of self-administration of self-governments in the areas of education and culture. In this area the minority self-governments participate, through exercising the so called co-administration competencies and powers in the performance of the local education administration tasks and through their rights to establish institutions or take over institutions they may maintain (primarily education) institutions themselves.
A municipal government that maintains minority institutions - particularly education institutions of minority (ethnic) nature - should respect the rights of minorities, all the more so, since the exercising of the so called ‘co-decision’ competencies or powers is not aimed to reduce the autonomy of municipal governments, instead, it is aimed to improve the quality standards of the performance of local public affairs in the broadest sense of the term.
Nevertheless, our office often receives requests for the interpretation of law, asking for our position statements, concerning the existence or scope of the right to express opinion on statutes of law or the right to agree. Some state and local governmental organs have not got used - ever since the entry into force of the Nektv. - to that if the personal scope of a statute of law extends to citizens belonging to an ethnic minority, then the local or national self-government representing such citizens does have a right to contribute to the formulation of its content as well.
It should be considered as just as natural primarily by municipal governments that the local or national self-government of a given minority will intend to influence - by exercising its right of agreement - the formulation of the budget of an education institution belonging to the given minority, along with the selection of the head of the institution, the formulation of the technical/professional contents of the minority education provided by the institution and the technical/professional controlling of education in that institution.
The deficiencies in this area cannot be blamed only those holding the right to express their opinion and to grant or withhold their agreement and those who have to let such right be properly exercised. For the legal regulation does not include the provisions that would at least approximately define the object and content of such rights and specify the format and content requirements of making decisions. Also, there is a need for a controlling system that would ensure the enforcement of these rights (the exercising of the co-decision making competencies).
Minority self-governments are still often facing efforts doubting even their very legitimacy, aiming to complicate or even prevent their operation (primarily on the part of certain municipal governments). Despite the fact that the relevant statutes of law more or less definitely lay out the obligations of the local municipal governments with respect to the operation of minority self-governments, municipal governments are not often willing to implement the provisions of the law.
The mayor of a district of Budapest asked for our position concerning the possibility of recalling the chairman of the local minority self-government.
In our position we referred to the resolution No. KP kf. III. 28809/1996 of the Supreme Court, declaring that the chairman of the minority self-government does not qualify as mayor in respect of the termination of the function therefore the rules on dismissal by court from the mayor’s position are not applicable to the termination of the function of the chairman.
In our view - as is supported by the fact that under Article 102/C (2) of the Ötv. all of the scopes of competency of a minority self-government are to be exercised by the council - it is also concluded from the above resolution that the council of the minority self-government may recall the chairman from his position by a resolution passed by an appropriate proportion of votes.
It follows from the ambiguity of the relevant statutes of law that during the period covered by the report again we received a number of requests for our position concerning the operation and organisation of minority self-governments. The requests related typically to the legal status, possibility of recalling and the conflicts of interests pertaining to the officials of minority self-governments.
These problems sometimes cause substantial difficulties to those in charge of applying the law in relation with the national minority self-governments. In the course of the legality supervision of the local minority self-governments the heads of the public administrative offices usually appreciated out position statements and the interpretation of the law by the public administration offices is considered relatively uniform in respect of these issues.
The Public Administration Office of the Capital City of Budapest, in its publication on the findings of legality inspections, in response to a concrete question concerning the analogous application of the rules of the Ötv., took the position in respect of the interpretation of the law, that one specific individual cannot be the chairman of both the Budapest minority self-government and that of a district minority self-government in Budapest at the same time.
Since some of the applications and requests submitted to our office also raised this problem we forwarded our position on this issue to the head of the public administration office. In our view there is no distribution of responsibilities or competencies between the two local governments that would justify the application of the tight incompatibility rules. We conducted reconciliation negotiations on the issue as a result of which eventually the public administration office accepted our interpretation of the law.
At present no legality supervision is exercised by the state organs over the national self-governments therefore problems that may emerge can be resolved only on the basis of an analysis of their rules of organisation and operations. On the one hand, these rules, however, are not statues of law, consequently, one of the key aspects of the legitimacy of the operation of the national self-governments is not provided for, on the other hand, various self-governments may develop different practices which then may undermine security in law.
A member of a local minority self-government asked for our position concerning the possibility of recalling the chairman of the national minority self-government, outlining, that they are not satisfied with the work of the chairman and they would like to ‘recall’ him.
In our response we outlined that for lack of adequate legal regulation at present the provisions of the rules of organisation and operations of the various national minority self-governments should be followed. Since, however, there are no proper arrangements concerning the legality supervision of the national minority self-governments, there is no state organ that would be entitled - for lack of regulation - to issue a position statement concerning the possibility of recalling the chairman of a national minority self-government.
A member of the national self-government of another minority asked for our opinion concerning the possibility of recalling the chairman, and, in this context, concerning the scope of the procedural competency of the chairman. (In relation with this issue, by the way, our office was also contacted by the Office of National and Ethnic Minorities.) We stated that since according to the rules of organisation and operations of the given national minority self-government the chairman can be recalled, the state organs must observe such a resolution made by the national self-government in compliance with the appropriate procedural rules.
A particular type of the requests filed with our office was made up of those that related to legal succession, particularly to legal succession in respect of property ownership relations.
The head of a minority organisation for the protection of minorities asked for our opinion concerning the legal succession of local minority self-governments. For it has been found in a number of cases that subsidies taken out by the legal predecessor local government from various (private and public foundation) sources have to be repaid by the legal successor self-governments.
In response to the above request we stated that in principle a newly elected self-government is liable, to the extent of all of its assets, for the commitments undertaken by its predecessor self-government. This interpretation of the law, however, may mean in a given situation that the performance of the liabilities for a legal predecessor self-government makes it impossible for the legal successor self-government to carry out its functions. (It should be noted, that a minority self-government may uneconomically spend the central governmental subsidies undertaking unjustified commitments and having spent its funds it simply dissolves itself preventing any substantive activities of a newly formed legal successor minority self-government - this, however, would be an extreme situation.)
Therefore, in our view, even if it takes an amendment to the law, it should be clarify that the organisation disbursing subsidies should consider legal succession as a factor that modifies the contract and should not automatically apply the sanctions undertaken by the predecessor self-government for breach of contract. Furthermore, the parties should be obligated to commence negotiations to enable the organisation disbursing the subsidy to recover such funds while the legal successor organisation should be enabled to perform its responsibilities.
It is considered that a review of the rules on the organisation and operation of the minority self-governments should help the problems outlined here to be resolved or to be managed more easily. The operation of self-governments without legitimacy or constitutional concerns, however, necessitates amendments to the law.
Local minority self-governments and municipal governments perform their activities alongside one another. However, the functions and powers performed and exercised by a local minority self-government restrict those of the municipal government concerned, while the requisites for the operation of a minority self-government is provided by the given municipal government (in some cases through providing budgetary funding contributions). In some cases this relationship, which is in principle a co-ordinated relationship, turns into a relationship of subordination, for a municipal government may take advantage of its situation and try to complicate matters for the local minority self-government.
Furthermore, a local minority self-government as an organisation authorised to exercise rights of minorities, cannot always assert interests against a municipal government that is the authority with a general scope of powers. Successful co-operation may be possible only if a municipal government accepts at least that its autonomy is restricted by the local minority self-government in respect of matters pertaining to the local minority.
In our view this situation may be changed, on the one hand, by central governmental organs (and public administration offices) convincing - through an intensive effort to disseminate information - municipal governments to accept this situation where their autonomy is restricted. On the other hand the legislator should reduce the dependence of local minority self-governments on municipal governments. At the same time, the system of minority self-governance should be strengthened.
The role under public law of minority self-governments may be enhanced, on the one hand, by increasing their actual function of performing responsibilities - for example by providing an actual institution maintaining role. On the other hand while leaving the internal autonomy of the minority self-government system intact, the co-ordinating role of national self-governments should be strengthened in order to provide for the uniform representation of the interests of the communities of minorities.
Local minority self-governments should be subordinated to the national minority self-governments while strengthening the latter (defining functions, consolidating their position within the general government system). National self-governments should be enabled to take on an increased role in the operation of local minority self-governments by exercising the right to agree - even perhaps in respect of the distribution of budgetary subsidies.
2. Problems associated with the establishment of the system of minority self-governments, with particular respect to anomalies of local minority governmental elections. Description of a realistic alternative to the current election system
In a previous chapter of this report - concerning the analysis of the right to identity as a member of a minority - it was already mentioned that as a result of the deficiencies and faults of the legal regulation of the establishment of minority self-governments the constitutional right of certain minority communities to self-governance may be impaired.
At present a minority government may be established primarily at the local (municipal level) or at the national level, with the exception of Budapest where it is possible to set up minority self-governments not only in the various districts but also for Budapest as a whole.
The ombudsman in charge of minority issues relatively frequently encounters requests or arguments concerning the establishment of minority self-governments in counties - i.e. at a regional or territorial level in general.
Information is received particularly from some counties and regions (e.g. Hajdú-Bihar county) where there is a larger population of the Roma minority on the need for the establishment of county self-government in the given region for visiting the headquarters in Budapest of the national self-government and asking for its assistance and information entails disproportionately high costs and takes too much time.
The practical and rational argument - particularly on the part of representatives of ethnic minorities that have their own schools - is that the various schools serve a number of municipalities, they cannot be maintained by one or another local minority self-government and the establishment of associations to maintain institutions and the obtaining of the municipal governments concerned would be excessively complicated. (In general, they recognise that the national minority self-governments could, in principle, directly exercise the rights of maintaining institutions in these cases, but these central organs usually do not have the required apparatus and this task should not be assigned to the competency of a national minority self-government because of the geographical distances involved in these matters either.)
Since the assemblies of county governments have similar functions and the rights of maintaining certain institutions - schools in most cases - are transferred between county assemblies and municipal governments, it should be an expedient solution to assign a territorial minority self-government level that could potentially be formed in accordance with the given requirements, alongside the county assembly.
As is well known, in a unique manner in the Hungarian election system national and ethnic minorities establish their national self-governments through electors. at present each local minority self-government representative and advocate of the minority - where there is no local minority self-government - qualifies as an elector, or if there is no such individual, a citizen with a voting right, elected to act as an elector, by an assembly summoned to elect an elector. Under the effective legal regulations, therefore, the members of national minority self-governments are elected through electors and not directly by citizens.
In principle, this means that an elector’s assembly of at least half of the people qualifying as electors may establish the assembly (council) of the national minority self-government from among its own members. Clearly, the result of voting at an assembly of electors depends largely on the relative proportions of the electors belonging to the various organisations participating in the election of a national self-government.
It is regarded as a major achievement of the recent year that on a proposal we made it was possible to attain a governmental and parliamentary consensus that enabled the amendment of the rules of the minorities act on election.
The parliamentary commissioner for the rights of minorities pointed out the problem that one of the Hungarian ethnic minorities - Romanians - could not establish a national minority self-government therefore the parliamentary commissioner for the rights of minorities made a concrete proposal concerning legislation.
Our initiative was successful, indeed, in respect of this case the co-operation with governmental organisations should be considered as exemplary, for by the adoption of Act No. LXV of 1999 it was possible to amend the minority act necessitating the support of two thirds of the members of parliament present. The amendment to the act enabled not only the establishment of the National Romanian Minority Self-government but also ensured the holding of interim elections where a minority self-government is dissolved.
Since the above amendment in 1999 the assemblies of electors summoned with the aim of establishing national or Budapest minority self-governments do have a quorum if half of the people qualifying as electors are present. This structure, however, is still quite a burden on larger minorities - first of all the Roma minority - for electors have to travel to the venue of the assembly from various regions of Hungary which entails quite substantial costs. Another disputed legal regulation is that electors present may elect the members of the national or Budapest minority self-governments only from among themselves.
It may happen that a minority politician who may perhaps have been working towards his or her election for years, is prevented from attending the assembly of electors for reasons beyond his or her control - accident, illness - and so he or she cannot be elected member of the national minority self-government.
3. The rights of minority self-governments in maintaining institutions, the system of financing and our proposals on this area
A minority self-government is enabled to establish a cultural institution by Article 49 (1) and (2): “A minority self-government may conduct public education activities for which it may establish an institution - within the limits specified by law - that may maintain international relationships. A national minority self-government is entitled to establish and maintain its theatre, museum, exhibition, public collection with a nation-wide coverage, library, publishing house and national cultural, artistic or scientific institution. A national minority self-government may apply for budgetary subsidy for the performance of such activities.”
A local minority self-government may, under Article 27 (3) of the Act “establish and maintain institutions in its own competency - as permitted by the available resources - in particular in the areas of:
a) local public education;
b) local press and electronic media;
c) cultivation of traditions;
d) public cultural activities”.
Many of the complaints submitted to the minorities’ ombudsman are related to education of minorities and the institution system constituting the background of the cultural activities of a minority.
Therefore, it is an exceptional - but not entirely unique - submission to the commissioner for minorities, received from a minority self-government in Borsod county concerning the closure of a part of a cemetery.
The inspection of the issue revealed that the area used as cemetery by the local minority living on the outskirts of the given municipality is intended to be sold by the municipal government after the division of the site. We contacted the Ministry of the Interior since the given municipal government did not proceed carefully enough for in its decision it had not taken into account the fact that the part of the cemetery concerned was used by the local Polish miniroty which is definitely covered by the provisions of the act on minorities.
Simultaneously with this inspection we learned from the press of the debate on the Bill on cemeteries and burial services - prepared by the Ministry of the Interior. Since the authorities concerned had failed to forward the draft act affecting minorities to the ombudsman for minorities for evaluation, we worded our concerns with the text of the bill having read the draft, in relation with the given concrete legal case.
For upon studying the draft it is clear that the legislator failed to pay proper attention to the questions of the establishment, maintenance and closure of cemeteries of minorities and did not elaborate special procedural rules for this question. The commissioner for minorities, therefore, turned directly to the committee for human rights, minorities and religious affairs, stating that the draft act on cemeteries and burial services does not provide procedural rules for cemeteries of minorities living in Hungary.
In his proposal on legislation addressed to the Parliament the ombudsman criticised that the Bill determined the range of legal persons in the form of taxation who are owners of a cemetery and who may consequently determine the rules concerning the maintenance and operation of a cemetery. The list did not include minority self-governments without any justification.
For in our view, in practice it is quite possible that members of a minority would like to have the right to decide on special issues pertaining to a cemetery or part of a cemetery used by them, for historical or traditional or religions considerations. In this respect we drew attention to the declaration comprised in the section entitled Fundamental provisions in the Nektv. which prescribes unconditional respect to the relation to and association with one’s own language, culture, traditions and ‘place of birth or homeland of parents, guardians or ancestors’. We assumed that it did not need a lengthy explanation that recognition of different customs and of ones ‘being different’ also in a minority’s burial culture is an important and integral part of the preservation of the awareness a minority of belonging together and of the protection of historically evolved communities.
In our view if the legislator accepted the justification of the existence of separate burial places for minorities (‘minority cemeteries’) it would not reduce the powers of municipal governments and would not reduce the responsibility of a municipal government concerning burial services as public services, however, it would enable a gesture not entailing substantial financial consequences, both to the minorities living in Hungary and to their mother countries.
The proposal formulated by the ombudsman aimed primarily to give a new legal qualification and approval of the existing conditions - shrines, cemeteries already separate in practice. Furthermore, of course we also considered it practically and theoretically possible to enable national minority self-governments - of course in line with the requirements of their minority communities - to establish perhaps central or national cemeteries since similar rights have already been provided for them by the Nektv (e.g. establishment of theatres, museums or public collections etc.).
Finally, the minority self-government made a proposal to the Committee to ensure the introduction of the necessary additions and amendments - that it should call on the Ministry of the Interior which was in charge of the preparation of the Bill to re-work the draft and to submit it for evaluation to representatives of the national minority self-governments in accordance with Article 38 (1) a) of the Nektv.
In line with our proposal and the submission by the committee the Parliament adopted Act No. XLIII on cemeteries and burial services providing ownership rights to minority self-governments so that minority self-governments may also be owners and operators (maintainers) of currently used or closed cemeteries. This gives effect to the fundamental principle formulated in the preamble of the Nektv: “The language, material and intellectual culture, historical traditions and other characteristics relating to the existence of a minority are a part of the individual and collective identity of national and ethnic minorities of Hungarian citizenship, living in the territory of the Republic of Hungary.”
In order to ensure the cultural autonomy of minorities the most important task is to provide for the legal possibility of undertaking tasks and the appropriate legal background required for this purpose.
The range of duties to be
performed by a municipal government is defined by Article 8 of the act on
municipal governments (Ötv.). The scopes of competency and power of minority
self-governments are specified primarily in the Nektv. but Article 9 (3) of the
Ötv. enables them to take over scopes of responsibilities and powers from
municipal governments therefore it is possible for them to carry out specific
tasks of importance from the aspect of the given minorities. The existing legal
regulation, however, does not provide an answer to the question of what is to
be regarded as public matter for (ethnic) minorities - it may be derived from a
comparison of a variety of laws. Therefore, the concept of ‘public matter of
(ethnic) minorities’ should be defined by law. The proposed legislation in
annex 1 hereto also offers a definition of this concept.
See the definition in Article 9 a) of annex 3
A minority self-government is primarily in charge of promoting the interests of the members of the given minority and to improve the conditions for the enforcement of the principles laid out in the preamble of the Nektv.
4. The legal status of a national minority self-government, problems arising from the lack of legality supervision
Experience accumulated over recent government terms have proven that the legal status of national minority self-governments is not clarified in certain aspects.
On the one hand, the law does not specify whether the minorities’ ombudsman may inspect national self-governments, on the other hand, it is not at all clear whether there is legality supervision control over national self-governments.
In our view the legislator should provide a positive answer to both of the above questions, i.e. it should be stated that the controlling power of the commissioner for minorities covers the national self-governments of minorities and it should also specify the state organ that may exercise legality supervision of this national minority self-governments.
Our proposal that is worded in
the form of a norm meets both expectations, for it is clear that problems
associated with constitutional rights may occur in the area of the operation of
national minority self-governments and since these organs are related to the
central state organs from a number of aspects - primarily to the general
government system - it is not possible to put off the adoption of the rules on
legality supervision. This is assigned by the proposal - following the current
regime of governmental task division - to the Minister of Justice, however, - depending on the
decision to be made by the legislator - the legislative definition of the
legality controlling power of See
the provisions in Article 161 of annex 3.
the NEKH that is the state organ primarily in charge of affairs of national and
ethnic minorities, but the designation of prosecutor’s office that is currently
independent of government is not impossible either.
In summary: the law to be adopted should specify fundamental rules concerning the inspection and legality controlling of national self-governments of minorities and in this area the rights of the parliamentary commissioner for the rights of minorities and the state organ performing general legality supervision shall also need to be specified.
Representation of minorities in Parliament
1. Analysis of the legislative background of the right to parliamentary representation and description of related resolutions by the Constitutional Court
A number of concepts and proposals have been formulated over recent years concerning the parliamentary representation of national and ethnic minorities living in Hungary but these have not become part of the law - with one exception. Therefore, the elaboration of the rules on parliamentary representation is still one of the most urgent tasks of the legal regulation of minorities.
The Constitution introduced the first regulation concerning the representation of minorities in 19990, when Article 68 of the Constitution was supplemented with paragraph (c): “Representation of national and language minorities living in the Republic of Hungary shall be ensured. Irrespective of the elections for Parliament as per Article 71(1) the Parliament shall elect members of Parliament for the representation of minorities - of a number and in a way to be specified by a separate law.”
The Parliament before the system change made an attempt to introduce a model based on coopting in one of its last laws. According to Act XVII of 1990 on the parliamentary representation of national and language minorities living in the Republic of Hungary the Parliament should have elected minority representatives independent of the general elections. This type of membership in Parliament would have been of a representative type, regardless of the number of those belonging to the various minorities. The law which was in effect only for a period of three months was hardly constitutional for it would have excluded minorities from elections and this right would have been exercised instead of them by the political parties in Parliament.
On 19 June 1990 the Parliament abrogated act No. XVII of 1990 and adopted the currently effective text of Article 68 (3) of the Constitution, according to which “The laws of the Republic of Hungary ensure the representation of the national and ethnic minorities living in the territory of Hungary.”
The act on the parliamentary representation of minorities, however, has not been adopted ever since then.
As a result of the delays of legislation a request was submitted to the Constitutional Court in 1991 concerning the inspection of the violation of the Constitution in respect of the adoption of the law on the rights of national and ethnic minorities, in view of the fact also that no representation is provided for minorities in minorities in Parliament or in the representative bodies of local governments either.
Considering the fact that the adoption of the law on the rights of national and ethnic minorities was expected within a short period of time, the Constitutional Court suspended its procedures until 1 January 1992. The Parliament, however, did not adopt the act up to that date, therefore, the Constitutional Court continued its procedure. In the course of the procedure, owing to the close relationship between the provisions of Article 68 of the Constitution - albeit the submission referred only to paragraph (3) - the Constitutional Court assessed the provisions in paragraphs (1)-(5) as well. In its resolution No. 35/1992. (VI.10.) AB the Constitutional Court declared that “The statement by the Constitution that it recognises national and ethnic minorities as part of the state of Hungary renders the statutory regulation of the rights of national and ethnic minorities extremely important. (...) Representation is a necessary pre-requisite for national and ethnic minorities to fulfil their roles as constituents of the state.” It also stated that “the Parliament failed to carry out its task as per Article 68 of the Constitution whereby it created an unconstitutional situation”. Consequently, the Constitutional Court called on the Parliament to fulfil its legislative task by 1 January 1992. At the same time it noted that it is up to the legislator to decide whether it will carry out the task by adopting one or several acts of law.
On 7 July 1993 the Parliament adopted the Nektv. which entered into force on 20 October 1993. The provision comprised in Article 68 (3) of the Constitution is intended to be reinforced by Article 20 (1) of the Nektv. stating that “minorities have a right to parliamentary representation - to be specified in a separate act of law”. So the Nektv. did not resolve the question of representation either, it transferred the question to the scope of another law. It did not specify, however, whether this separate law has to be a law specifically on elections by minorities or whether the task can be performed by an appropriate modification of the act on general elections.
In another proposal submitted to the Constitutional Court the elections act was asked to be declared unconstitutional, with reference to the fact that it did not have an appropriate provision concerning the implementation of the rule concerning the fact that minorities are a constituent of the state. According to the position taken up by the submitter of the proposal this provision of the Constitution formulates a general political principle the implementation of which should be arranged for in separate acts of law.
The Constitutional Court decided that in terms of its contents the motion is aimed to terminate an unconstitutional status in the form of failure to carry out an action, therefore, it was rejected as a judged fact (res iudicata). Despite the rejection of the motion without any substantive discussion the No. 24/1994 (V.6.) AB resolution by the Constitutional Court turned the case of parliamentary representation irreversible. For in the reasons for the decision it is mentioned that “The No. 35/1992 (VI.10) resolution by the Constitutional Court had already established the fact of the violation of the Constitution in respect of the parliamentary representation of national and ethnic minorities”.
According to some constitutional lawyers the Constitutional Court referred in this resolution to a statement that it had never made: for in the referenced resolution by the AB only the fact of violation of the Constitution in respect of the representation and not their parliamentary representation, is mentioned. The representation minorities, however, may be provided for in other ways as well - for instance in local governments - therefore, it is not necessarily identical with representation in Parliament.
In our view, the 1994 resolution by the Constitutional Court clarified the fact of the existing violation of the constitution by failure to act, the right to representation is provided for by the regulation in Article 20 (1) of the Nektv. anyway. The legislator undertook in this section of the Nektv. to create and introduce a separate law that will regulate the special rules of parliamentary representation of minorities. Therefore, the Parliament is to be faced with failing to carry out its own promise (self-binding) on account of not adopting the law.
2. Presentation of the position and interpretation of the law by the minorities’ ombudsman and the actions taken by him (submissions to the Constitutional Court)
Representation - as is clear from the resolutions by the Constitutional Court as outlined above - is a necessary pre-condition for minorities to fulfil their role as constituents of the state. Nevertheless, no law has been adopted concerning the parliamentary representation of minorities, therefore, since the Constitution first provided for the right of representation of minorities, breach of the constitution by failure has been existing for almost a decade. This failure deprives minority communities living in Hungary from exercising their constitutional right and weakens trust in the promise (self-binding) of Parliament. In some earlier reports we drew the attention of the legislator on several occasions that the prevailing situation is an intolerable situation from the aspect of the enforcement of the constitutional rights of communities and organisations of minorities.
Parliamentary representation may, in principle be provided for in a variety of ways. One theoretical possibility would be regulation of the parliamentary regulation of the 13 minorities living in Hungary in a way that would ensure their participation in the tasks of legislation through coopting or delegation, in a representative sort of way. In this case, the legal status of minority representatives would be fundamentally different from the legal status of Members of Parliament elected in the ‘regular way. It should be noted, however, that a ‘quasi representative’ status would raise a number of concerns and the representatives of national minority self-governments definitely reject this kind of arrangement.
In our view a solution for the representation of minorities that would be most acceptable according to criteria of the constitution would be to have parties established by national and ethnic minorities entering the elections under the regular elect0ion rules - with preferential conditions. In order to enable them to acquire mandates the 5 percent threshold that is to be exceeded by political parties in order to get into Parliament would not apply to parties organised on the basis of national or ethnic minorities.
Last year we submitted two proposals to the Constitutional Court to promote the resolving of the question of parliamentary representation of minorities. (These submissions are presented in full in annex 5 and 6 hereof.)
2.1. The content of ‘state constituting factor’ as a concept of constitution
In the first motion we asked the Constitutional Court to give us an interpretation of Article 68(1) of the Constitution.
The provision of the Constitution asked to be interpreted points out that national and ethnic minorities living in Hungary share the power of the people and they are constituents of the state. Further to the declaration of the particular legal status of minorities the Constitution does not specify the concrete laws to be derived from this provision and other legal regulations do not define either the content of ‘constituent of the state’ as a legal concept.
In its resolutions no 35/1992 (VI.10.) and 24/1994. (V.6.) the Constitutional Court already dealt with the question of minorities as being “constituents of the state” however, for lack of a proposal on this that would have originated from one entitled to the right, it did not give an interpretation binding on all (erga omnes). One of the constituents of the “constituent of the state” is, according to the interpretation of the Constitutional Court, the right to representation under which a minority is entitled to appear in an appropriate form in the state organisation system as well.
Another definition of the concept from another angle is to be found in the reasons attached to the Nektv. The national and ethnic minorities as well as the Hungarian nation, participate, with equal rights, in resolving state, social and economic tasks, they are equally recipients of the benefits entailed by the above and bear the burdens borne by the Republic of Hungary. The category of ‘constituent of the state’ in this interpretation is to be regarded as a statement of the equality in law of minorities.
Clearly, the legislator has not defined precisely the contents of the status of ‘constituent of the state’ of the minorities. Consequently, it is not possible to define with the required certainty, the scope of cultural autonomy specified in the Nektv. Although there are provisions in the law from which it is possible to partly deduce the contents of this concept, however, this legal regulation does not provide guidance as to what is meant to be understood by that ‘minorities are constituents of the state’.
In our view, in order to render the provisions in Article 68 of the Constitution really coherent, it should be defined - not necessarily in a norm text - either with a positive or a negative content, the precise legal content of the category of ‘constituent of state’, its outlines, specifically, what legislative tasks are required for the provision of this special status of minorities. We hope to be given an answer to the above questions by the prospective resolution by the Constitutional Court.
2.2. Constitutional problems relating to the act on elections
In another submission to the Constitutional Court we asked for the retrospective assessment of the unconstitutionality of Article 8 (5) and Article 9 (5) of the act on elections as well as that of section IV. of Annex 4, along with the annulment of these provisions.
The provisions of the elections act to be reviewed under a retrospective norm control determine the proportions of votes required for the acquiring of mandates on local and national lists, and they are considered as contrary to the Constitution, for they impose a 5 percent threshold - 10 and 15 percent for connected lists. An estimated 10 percent of the population of Hungary belongs to some national and ethnic minority therefore they have clearly no realistic chance of acquiring such percentages of votes.
The Constitutional Court as has been specified in the reasons attached to the resolution of the Constitutional Court No. 6/1991. (II.28.) does not consider the universality or the equality of the right to vote as absolute, that is free from all restrictions. According to the Constitutional Court, however, - since this is a very important right of citizens - any restriction of equality or universality may be accepted and reconciled with the constitution only based on very important reasons of principle.
In its resolution No. 3/1991. (II.7.) AB the Constitutional Court assessed whether the proportion of votes required for acquiring a mandate through a list does not violate Article 70/A of the Constitution prohibiting discrimination.
The Constitutional Court established that the provisions of the Vjt. concerning the establishment of the results of elections do not make a negative discrimination between voting citizens according to the political contents of votes but they attach legal consequences to the proportions of the numbers of votes. The provision under the procedure is aimed to support the operability of the parliamentary regime established in the constitution. For if the election system would provide mandates for the smallest parties as well, it would threaten the decision making capability of the Parliament and the stability of governance alike.
From the above argument of the Constitutional Court it follows that although the application of a threshold in elections does violate the principle of the equality of the right of vote but the weight of the social interests represented by parties acquiring a few percents of votes is not proportionate to the public interest associated with the guaranteeing of the operability of the Parliament and the whole of the democratic institution system, therefore, the restriction of this equality is constitutionally acceptable based on this exceptional reason.
According to the fundamental rule comprised in the Vjt. candidates acquire mandates in proportion with the votes cast as well as the fragment votes, in comparison with which the imposition of a threshold is a special rule. Should the Vjt. not impose a requirement of attaining the threshold on parties of minorities this would mean that instead of the special rule - considering that it results in negative discrimination on account of the special position of minorities - it should be possible to return to the application of the general provision. The deletion of the necessity of attaining the required proportion of votes for minority parties to acquire a mandate, therefore, would not constitute the provision of any advantage. It would mean that the protection of the constitutional interest associated with the operability of Parliament - which necessitates the application of the 5 percent threshold in respect of political parties - does not justified this in their case. On account of the position and number of minorities the deletion of the threshold for election would not result in the hazard of having ‘countless’ minority groups of representatives, leading to an unstable political situation in legislation.
In our view the distinguishing is also justified by the fact that it is not possible to regard the public interest represented by political parties with little social support and the constitutional interests of the protection of minorities cannot be regarded as of equal importance. The right of the enforcement of specific interests of minorities in the state institution system is ensured by the Constitution itself by declaring that minorities are parts of the power of the people and as such they are state constituting factors.
In our view representation, as a main rule, should not be realised indirectly, but through a direct connection with the minority communities. For while political goals specified by small parties may be undertaken by parties with larger social support this would definitely result in legitimacy problems in the case of minority groups.
It is clear from the above that the election system is not coherent, and the fact of the Vjt. applying a general election threshold despite the rules on the protection of the minorities comprised in the Constitution is considered to be contrary to the constitution. Although the different rules on the acquiring of mandates would violate the principle of the equality of the right to vote in the case of parties organised on national or ethnic bases, yet this should not be considered as problematic from the aspect of the constitution for Article 70/A (3) of the Constitution imposes a definite obligation on the state to ensure the realisation of equality in law by the adoption of actions aimed to eliminate inequalities of opportunity as well.
In the reasons attached to the Constitutional Court decision no 3/1991. (II. 7.) AB the Constitutional Court declared that the obligation of the elimination of the inequality of opportunity means from the aspect of the election law means that the state must provide equal opportunities to those who intend to running the elections. The chance must be equal before the elections.
In our view we cannot speak about equal chances then the parties representing expressly he interests of minorities (social organisations entitled to run in elections) have to have the same degree of social support as have parties organised based on political preferences, enjoying therefore naturally larger bases of voters.
In our view the criticised provisions of the Vjt based on these reasons can be regarded as contrary to the provision prohibiting discrimination in Article 70/A of the Constitution, therefore, we requested that they should be declared unconstitutional by the Constitutional Court and that the Constitutional Court should revoke them.
In the case of positive judgement of our proposal the Constitutional Court may chose from among two alternatives; it may eliminate the unconstitutional provisions as of the day of promulgation or by imposing a deadline. (The elimination of the election threshold specified in the Vjt. would of course not exclude the possibility of the Parliament repeatedly specifying a percentage of votes for acquiring a mandate.)
The advantage of our proposal lies in that it would enable minorities to acquire mandates at the smallest deviation from the general rules. As a condition for this a minority party - and/or the attached lists of minority parties - should need to acquire the number of votes for getting a mandate on the list. The extent of this may be illustrated with the following examples. In the 1998 general elections the precondition of getting a mandate from the list was 227<|>387 votes owing to the 5 percent threshold. For parties, however, that acquired this threshold needed votes falling between 19<|>317 and 32<|>222 to acquire one mandate on the territorial list. (The smallest number of votes was required in Nógrád county, the largest was needed in a Budapest district for a mandate in a constituency). From the national list it was possible to get a mandate with as few as 35<|>890 votes.
In our view the minority parties would have a realistic chance of acquiring this number of votes, therefore, if the 5 percent threshold were eliminated, it would be possible to acquire mandates on minorities’ lists, and the Parliament could reassuringly meet its constitutional obligation.
Coopera6ion between municipal governments and minority self-governments
1 Description of the conceptual problems relating to the exercising and ignoring of the so called ‘co-decision making powers’ as reflected by concrete complaint cases
As is well known the Nektv. intended to address the enforcement of certain particular minority rights by establishing so called co-decision making powers. From among the co-decision making rights primarily the possibility of exercising the so called right of agreement which is the strongest power of minority self-governments which is - in principle - a right of veto.
Another, not so strong power means the possibility of exercising the right of expressing opinion in the cases where either the law on minorities or another statute of law provides this right expressly for local and/or national minority self-governments.
The possibility of exercising the above rights is, unfortunately, in many cases, of only a matter of principle, since a number of examples could be mentioned to prove that the disregarding of the rights of agreement and of expressing opinions entails no practical legal consequence at all.
1.2. Our proposal concerning legislation relating to the exercising of co-decision rights
It is a fact that problems relating to the constitutional rights emerge when legal regulations do not provide for a procedure to be followed where a municipal government or any other state organ disregards the rights of agreement or of expressing opinion of minority self-governments in making its decisions and actions.
The ongoing amendment and re-codification of the minorities act offers a good opportunity for the elimination of this problem. This should be used to clearly regulate the practice of co-decision powers whereby it would be possible to resolve conflicts experienced so far.
The problem is a lot more complex than is reflected by the legal case we describe, for the law does not provide for what should be done in he case of ‘irregular-looking’ exercising of the rights minority self-governments i.e. if they refuse to grant their approval without any reason or if they subject such to some condition - that may be irrelevant from the aspect of the case on hand.
It only appears to be clear and obvious that in the course of the performance of local responsibilities municipal governments and minority self-governments are obliged to co-operate where the law can not be violated. Considering that the fact that such cases do and may occur in a variety of cases and under various situations, in our view the legislator should clearly define the rules on the procedure to be followed in the case of a conflict - reconciliation - and it should stipulate the legal consequences entailed by decisions made while disregarding the right to agree or express opinion. In this area primarily the legal means of annulment or ex-post invalidation on account of violation of law may be resorted to where the heads of the public administration offices that are in charge of legality supervision could play a key role.
The material elements of the arrangement we propose are as follows.
In the cases regulated by the law on minorities (ethnic minorities) where the minority self-government has a right of agreement - the legal consequences applying to the disregarding of thus right should be clearly defined by the law - i.e. - ultimately - that a decision made by a municipal government disregarding the right of agreement is null and void. At the same time the legislator should also ensure that it is not possible to take undue advantage of the right of agreement, therefore, such procedural rules should be laid out that impose sufficient deadlines on the exercising of the right of agreement and provide that after the passage of such deadline a council of a municipal government may make a decision on questions that may otherwise influence rights of minorities as well.
Operational disturbances in budgetary management have a substantial influence on the relations between municipal governments and local minority self-governments.
the annual budget acts, the act on the general government system and the implementing rules of these statutes entail a number of detail rules concerning the keeping of accounts, budgetary planning, reporting and the related deadlines and procedural regimes.
The conclusion drawn from the complaints that are typical in the practice of the parliamentary commissioner for the rights of minorities that the current legal regulation - despite its depth of detail - is rather chaotic, it is difficult and enables those in charge of applying and enforcing the law to apply different interpretations.
A solution and progress would be enabled if there were a separate law on the relations of municipal governments and minority self-governments and their necessary co-operation - including the areas of co-operation in budget management - which would clearly specify the fundamental rights and obligations of the two subjects at public law, clarifying the fundamental concepts and would provide answers to the most important practical questions. This work should be carried out in the framework of the current effort of re-codification of the act on minorities for there is no obstacle to a law on the rights of minorities (ethnic minorities) devoting a separate right to the adoption of the general rules pertaining to the financial management and assets of minority self-governments.
The code on minorities hopefully soon to be adopted could for instance specify though the various minority self-governments may be provided with direct central budgetary funding to finance the performance of minority public affairs and minority public service provision and how they could use the support by the state through public foundations.
The minority code should specify the conditions under which a minority self-government performing mandatory tasks on its own, can be regarded as a central budgetary organ and what apparatus it may have, under what conditions it may use the technical assistance of mayors offices and what are the conditions under which it may undertake obligations and what are the sizes of such obligations (e.g. granting surety, guarantee).
In our view the legislator should also adopt a law on whether to maintain the current distribution system of central state subsidies - that are equal for each minority self-government - or to replace it with a financing system that is adjusted to the tasks to be performed, the tasks performed, the orders of magnitude, headcount and other features municipalities and minorities.
We think that it does not need further explanation that the current state subsidy system is disproportionate and it is no more than an ‘insular’ organisation financing arrangement where a minority self-government of three of a municipality of a total number of a hundred or so is allocated the same budgetary contribution as a local minority self-government in charge of the minority of thousands of people in a large town of hundreds of thousands of inhabitants.
Finally, attention should be drawn to that there are increasingly marked efforts and increasingly definite arguments concerning that a territorial (county or regional) minority self-governance level should be developed which should be capable along with or independently of country minority self-governments of performing specific tasks of minorities - primarily secondary level education of minorities - an of maintaining the required institution system. This would of course be impossible without effective state support in this case, wherever, we are talking about a state public task that would be taken over by the various minority (ethnic) self-governments therefore there is a need for proportionate performance financing and ++not an undifferentiated organisation financing scheme.
Issues related to the provisions against discrimination as stipulated in article 70/A of the Constitution and in article 3., section (5) of Nektv (Act on National Minorities).
1. The joint features of the most glaring cases of discrimination, such as the atrocities committed by the members of the law and order organs (primarily the police, penal authorities, etc.), of the complaints in this category
In 1999 the office of the Committee of the National Assembly on the Rights of National and Ethnic Minorities dealt with 31 cases linked to complaints against the actions of the law and order organs or their members.
Naturally of these we consider as the gravest cases the complaints against the actions, physical assault by the members of the police.
We learned from a notice from the Roma Polgárjogi Alapítvány (Foundation of Roma Civil Rights) and from an article published in the paper Blikk that a larger police unit took action in a Budapest tenement and the policemen assaulted several persons of Roma origin. Some even suffered injury.
The minority commissioner considered as subject for investigation the fact- as learned from the heads of the district’s Roma minority local government- that during the police actions complained about some policemen made also insulting remarks offending the affected minority, and the aggrieved persons felt that they were subject to the action not because of any illegality they were supposed to have performed, but because of their origin.
We asked the head of the police headquarters and the competent office of investigation of the prosecutor for information on the event.
We were informed by the chief of police that the investigation of the complaint the police action was suspended until the investigation procedure by the prosecutor is completed then in a later official communication he advised that the national police headquarters had annulled the resolution on the suspension and ordered a new procedure to be carried out by the authority of the first instance.
According to the letter issued by the Budapest prosecutor because of the police behaviour suggesting the suspicion of crime the investigation office of the prosecutor ordered because of assault made in the course of official procedure against unknown policemen. He attached to his letter the report by the investigating office on the criminal case in progress.
The investigation disclosed that a report had been made by telephone to the central police office on duty that a pregnant woman had been assaulted in one of the Budapest tenements and the injured party landed in a life-threatening state. Mostly people of Roma origin live in the two-storey building with circular internal corridor and 40 flats- the event took place on a Sunday- and most of the residents were at home.
Twelve policemen had been sent to the location. Some flats were searched in the building and three young men were detained and three girls- a 13-year old child among them- were taken as witnesses to the police headquarters of the district and were released in the evening. During the hearings five persons claimed that they had been assaulted by the police or witnessed that others had been beaten up. According to the pinion part of the medicolegal constat the injuries suffered by the young persons will heal within eight days.
The injured persons unanimously claimed also that the policemen used rude remarks referring to their Roma origin.
According to the person who had made the report the investigation could not be completed in less than two months; the criminal procedure was still going on when the report was made.
We have also been dealing with complaints on assaults, threats by the police force, in less frequent cases with crimes against property; most of these proved to be unfounded or it was not possible to find sufficient evidence to start investigation or for impeachment.
A former chairman of a local government of a settlement asked for help by telephone from a staff member of the parliamentary commissioner. He explained that the commanding officer of the local police unit had called him by phone complaining that “Gypsies ravaged” in the shop of his wife. The police commandant believed that the plaintiff had instigated the rascals and so he had seriously threatened them. The plaintiff definitively claimed that he had nothing to do with the lawlessness and asked for the policeman to be warned by his superiors and also asked for the appointment of some other police officer to perform the criminal investigation conducted against him for the falsification of document.
On the effect of the letter received from the parliamentary commissioner the head of the police headquarters assigned the task of investigating document forgery a policeman who had not known the plaintiff and demanded investigation to be carried out. In the course of the procedure the commanding officer of the patrol refuted to have had spoken with the plaintiff about ravages, and in view of the fact that the presumed threat was made over the telephone it could not be proven.
In another issue a an detained at night for suspicion of theft complained, that when taken to the police headquarters the policemen abused Gypsies, then, at the police station assaulted him and it was as a consequence of such assault that he signed the judicial confession.
On the basis of the complaint the investigation office of the prosecutor ordered investigation doe suspicion of forced questioning, then the investigation was closed because the criminal action could not be proven. The plaintiff did not submit complaint against the relevant resolution.
In another case a convict serving his prison term submitted complaint against unidentified policemen, claiming that in the course of procedure conducted against him for theft and other criminal actions the police investigators had confiscated a golden chain and golden medal, and although the court ruled that those golden items be returned to the convict the police did not return them.
In the course of the investigation conducted by the prosecutor’s investigation office on the charge of embezzlement it was established that the confiscated golden items had been returned not to the reporting person but to the original victim of the theft, that is the rightful owner, but because of improper document handling by the police the documents submitted to the court failed to clarify the situation. It was on that basis that the plaintiff could claim not to have received the confiscated items. In the course of the investigation by the prosecutor documents were found proving that the golden items had been returned to the rightful owner. In the absence of criminal action the investigation stopped.
Some of the plaintiffs considered police actions unjustified or offending and objected to the not sufficiently cultured attitude of the acting policemen.
The teacher of a primary school submitted complaint to the parliamentary commissioner because – he believed- the policemen took unjustified and humiliating actions against two of his pupils. The teacher accompanied his pupils- two girls of Roma origin- into the town to perform certain tasks related to some school competition. The police patrol made him and his pupils descend the bus, emptied the contents of their school bags on the top of the engine compartment of the police car, checked them and then asked for the identification card of the girls. Because of their young age the girls had no identification card, so the policemen contended themselves by asking for and recording their data. The teacher had been told neither at the start nor at the end of the action for the reason of the action. He complained that he had been “left out” of the procedure and believed that the girls had to identify themselves specifically because of their Roma origin.
On the request of the ombudsman the competent police ordered investigation, and disclosing the result of the investigation he believed that no significant unlawful action had taken place.
The police action had been ordered by the officer on duty of the police headquarters because on that same day several citizens reported by telephone that dark skinned pick-pocketing girls with black hair “operated” on the bus and two other reports had also been made against unidentified culprits for pick-pocketing.
The police headquarters took the position that the policemen asked the girls to identify themselves in conformity to the provisions of act XXXIV. of 1994 on the police and it was also in conformity to the service regulations of the police that the clothing of the girls were searched. It was also established as fact that it was contrary to legal regulations that the policemen had not told the plaintiff the reason for the action. Thus the police headquarters had been basically lawful in the opinion of the chief of police, but in order to avoid the reoccurrence of similar incidents which could be complained about, he believed it to be sufficient to give repeated instructions to the affected police staff. The girls had been subject to identification not because of their origin but because they resembled the girls who had been reported to the police. He expressed his regret for the unpleasantness the girls had suffered but he also asked their understanding, as when working on the prevention of crimes and on maintaining law and order the police cannot avoid controlling innocent citizens also.
The minority commissioner only partly agreed with the arguments of the chief of police and would not want to suggest that the acting policeman should be more strictly disciplined for not disclosing the reason for the action, but in another letter he explained that the police actions should be in conformity to legislative provisions not in form only but should be executed in cultured way, so he asked the chief of police to demand from his subordinates not only to become experts on a higher standard but also to behave in cultured way in specific situations.
It is worth mentioning that regardless of the above case, but in connection with complaints against other police actions, as a result of the relevant investigations the national chief of police issued its order No 51/1999. dated on the 2nd of September 1999. sections 1 and 8 are worth quoting word by word. The text of section 1 refers back to the cases mentioned in the report submitted one year earlier also.
The sections worth quoting are as follows:
“1. Police measures limiting personal freedom can be taken exclusively in conformity with the provisions of articles 33, 34 and 37 as well as section (2) or article 37 of Rtv (Act on the Police) and of articles 35-44 of the Regulations. The person limited in personal freedom in the course of police action can be transported exclusively in vehicle developed for such purpose or in passenger car, or the passenger compartment of the passenger car. It is prohibited to transport any person in the booth of the vehicle not only because that can cause accident but also because it would violate the requirement of legal security arising from the requirements of the constitutional state and the ban of inhuman, humiliating treatment. The Constitution absolutely prohibits inhuman, humiliating treatment without any exception. That is regardless of the person against whom the action takes place, of his/her procedural position, possible illegal behaviour.”
“8. In addition to the prevention of constitutional absurdities, illegal practices as established by the parliamentary commissioner of citizens’ rights it is important to extend the professional and legal knowledge of the police staff, to keep their knowledge updated. It is the obligation of all police commandants to demand from his/her subordinates to obtain professional knowledge of the higher standard, which should form the basis of legal, decisive and cultured police behaviour, actions. Accordingly I order repeated teaching of the Rtv and the Regulations in all regional and local police organs, to be executed by the 30th of September 1999.”
Last year the parliamentary commissioner received complaints not against the actions of the police as authority but as the police as former employer.
A former policeman complained because he had been dismissed some years earlier. He had been blamed for the misuse of power, as part and result of disciplinary action, when he had been reduced to a lower rank and fired. It had been established that when acting as member of traffic police he fined a driver on the road on the site, gave no receipt on the fine which he simply pocketed. In addition to the disciplinary action a criminal action had also been launched against him in the course of which his partner in the patrol- who earlier had only acted as witness- had also been accused and the competent courts on the first and second instance ruled they both committed the crime of the misuse of power and were sent to 4-month in prison. The punishment was suspended for a trial period of one year.
The plaintiff complained that he had been reduced in rank with immediate effect and was dismissed, while his partner on patrol was not disciplined, moreover during the procedure the partner was even promoted. It was not as if he had wanted his partner to be more severely punished but he believed that he had been biased because of his Roma origin. He asked the parliamentary commissioner to check: did any discrimination take place, was the criminal procedure in order, and he wanted to know whether some legal remedy was possible.
On the order of the parliamentary commissioner the deputy chief prosecutor had the complaint investigated; he gave detailed information on the result of the investigation and made available to us the entire documentation of the criminal procedure.
It could be established from the documents of the investigating office that indeed a driver submitted a report to the police against two unidentified policemen, claiming, that he- the driver- had been stopped and he was checked with the claim of violating traffic rules (fast driving). One of the policemen- the partner in the patrol, as disclosed during the investigation- asked for his documents, while the other one- the plaintiff- said that photographs had been made on the action, and in case report was made the driver would have his license withdrawn and would be fined at HUF 25,000. If however the driver paid HUF 10,000, but minimum HUF 5,000 he would not suffer such detrimental actions. The driver did pay the sum the policemen asked for but received no receipt. According to the plaintiff driver the policemen acted in concert. After receiving the report the superiors of the policemen conducted inspection on the location referred to and witnessed, that the two policemen acted similarly against another driver, so for further action the policemen had been transferred to the competent investigating prosecutor.
According to data available at that time the suspicion of criminal action applied to both policemen, thus the investigating office of the prosecutor was wrong in concluding that the procedure should be launched only against the plaintiff, and so the later measures taken were also wrong (house search, questioning as suspect). It was also wrong to question the fellow patrol only as witness.
The office of the district prosecutor identified the mistakes committed by and the negligence of the investigating authority and ordered supplementary investigation, and after the completion of that investigation it submitted indictment against both policemen because of the crime of bribery by official persons, who violated their responsibilities as fellow –perpetrators. The court agreed with the indictment as regards to the fact and qualification and charged both policemen with the same punishment.
Thus the investigating office was wrong by including the fellow patrolman into the procedure only as witness and not as suspect, but as against the opinion of the plaintiff- claiming that the procedure had been biased against him because of his Roma origin- the authorities believed that the reason for the difference in the procedure was wrong interpretation of the evidences. The office of the district prosecutor corrected the mistake and the court also ruled accordingly, but in the early phase of the investigation the head of the police headquarters ordered reduction in ranks and dismissal only against the plaintiff on the basis of the difference made by the investigating authority.
When the ruling of the court became known, in view of the time that had passed since the event the head of the police headquarters could no longer launch disciplinary action against the fellow patrolman and could not pass disciplinary ruling. It is also a fact that the plaintiff did perform the criminal action for which he was punished and in the given situation the chief of police also acted in conformity to law. Thus the plaintiff had bot been biased against, but it was because of the mistake committed by the investigating authority that the fellow patrolman was judged more favourably than deserved.
With special regards to the fact of the time passed the parliamentary commissioner had to agree with the findings and he could see no possibility for legal remedy and informed the plaintiff in details about these facts.
We could also learn about cases, and issues in that connection, when the police authority acted fast, professionally and successfully on the report submitted by a plaintiff of Roma origin, but for objective reasons the committer of the otherwise punishable action could not be impeached.
The injured party reported to the police that since the local disco had been opened the young people leaving it make noise and occasionally disturb his family by shouting dirty words against Gypsies.
One night a member of a young group threw a banger into the courtyard of the plaintiff, which exploded there. In the course of the course of the transgression procedure the police identified the culprit but he was a minor and so was not subject to procedure.
As a result of the investigation the chief of police considered it important to emphasise that the action against the plaintiff had been connected to the ethnic origin of the family, and although the attitude against them could not be considered as grave it was important to prevent the re-occurrence of similar events. That can be arranged by regular patrolling and by regular control of the area during the time when the disco operates.
In connection with two extraordinary death events the minority commissioner had to investigate whether the police had acted in conformity to the rules applying to state administration procedure and in expert way when identifying the events and whether the rights of minorities had been violated in the matter.
The 17-year old Roma boy, student of a specialised secondary school fell from the window of the boarding school and died. According to the police it was an accident, but the mother of the boy claimed he had been victim of crime.
The minority commissioner investigated the complaint of the mother also, because she claimed that her son had been earlier already abused only because of his Roma origin.
We had asked report from the head of the competent police headquarters on the death and we received for study also the documents made during the procedure.
According to the findings of the procedure the young men died from the injuries he had suffered when falling from a high place. No data, fact, evidence was found to suggest intervention by others or suicide.
When studying the documents the minority commissioner came to the same conclusion as the police. It had also be established that one year earlier the boy had been abused not because of his minority origin but it was some students’ mischief and it was only accidental that the boy suffered grave injuries. The boys who had then caused the injuries were already students of some other school when the death occurred. The reason for the accident must have been that the young man- as he used to do it before also- sat on the window still to smoke (or stepped on it for such reason) and lost his balance.
The parliamentary commissioner considered the police procedure correct and of high standard. It must be emphasised that in the course of the earlier criminal investigation as well as in connection with the investigation of the conditions of death special care had been taken to see whether the boy had been insulted or died because of his ethnic origin, and whether there had been any element in the relationship among the fellow students and the boy which could have been rooted in ethnic issues. No evidence or fact, not even suggesting data arose which would have shown any bias, the expression of any detrimental treatment.
In connection with the following sad death the parliamentary commissioner had to investigate first of all whether the health care personnel acted in any discriminative way and secondly, whether the investigating policemen acted with proper care and on a high standard.
The 11-month old son of the plaintiff had died in the hospital. His mother turned to the parliamentary commissioner of civil rights; who in turn forwarded the complaint to the minority commissioner, because based on the contents of the complaint the plaintiff’s issue was supposed to be linked to her Roma origin.
The local police office then the police headquarters of the county investigated the extraordinary death. The mother was not satisfied with the results; she complained not so much against the police actions but against the physician and the family nurse responsible for the treatment of the child. She was not content with the police procedure either, claiming that it had not identified the negligence of the physician or the nurse.
The parliamentary commissioner of national and ethnic minorities had asked for the documents to study them. In conformity with the position taken by the police he established that the child had died of natural reasons, that is anaemia, due to improper diet with very high protein content, so his organism could the shortage of proper protein caused by poor diet, so his enzyme and immune system could not develop properly, he could not retain the operations important to sustain life and to withstand external effects. Compared to the size, weight of the child the quality deficient food was sufficient in volume. The chronic shortage of proper nutrition leads slowly to the form of ailment and the lay environment as well as the health care network do not realise fast the dangerous situation slowly emerging. In most cases an incidental disease draws attention to the trouble. That has happened also with the baby who had developed catarrhal diarrhoea which had suddenly lead to very bad health. The treating physician assumed also the possibility of protein losing kidney disease, but that was a mistake because it was not the kidney which lost protein but rather the organism did not get sufficient protein. But the physician could not be blamed for the incorrect diagnosis as he sent the child to a hospital where the baby was treated as required for his disease. Unfortunately not even the best medical care could save the child. (The carton of the district physician shows that he treated the child at 19 occasions, sometime more than once a month with diseases which did not require the participation of paediatrician.
The district nurse visited the baby on 31 occasions, pointing out to the mother how to feed the baby correctly; the baby was ten and a half months old when last seen by the nurse, and according to the records she then spoke in details on proper diet and related issues.
The minority commissioner advised the plaintiff about the results of the procedure, detailing his own views also.
Apart from the complaints on the violation of minority rights the minority commissioner receives seldom complaints about cases when official organisations are claimed to have taken measures or series of measures against some minority.
According to a complaint submitted from a settlement along the country’s border claiming that the various authorities, such as the local Labour Centre, the Tax and Financial Control Office – making use of the assistance of the police and other organs- keep the village practically under occupation. Unjustified control exercises follow one another, the authorities are trying to find “black workers” and other unlawful actions. According to the plaintiff there is the risk that because of the harassment the number of minority citizens – contributing a significant percentage to the local population- will drop and the local school will no longer remain that of a national minority. The plaintiff hopes that there is not forced assimilation attempt in the background.
To clarify whether the control exercises complained about are linked to the minority status of the controlled citizens the parliamentary commissioner contacted the county offices of the various authorities – that of the tax and financial control, the labour centre, the customs and financial control, the district border guard and the police headquarters- asking for information on the control exercises conducted in the border region of the county and for the relevant statistical data.
The authorities readily forwarded the requested documents, and it could be unambiguously proven that the rights of the minorities had not been violated, as the control exercises had been carried out with the same intensity and volume in all the settlements of the region, regardless of the ratio of minorities in the given population. The reason for the more intensive control exercises and their features were justified by the more frequent violation of legal provisions and the measures taken had the objective of identifying and preventing such actions.
In connection with the method of control we drew the attention of the head of the listed organs on the relevant legal regulations, which- albeit in varying details- declare that in the course of measures taken on the location those who carry out the control must identify themselves and must advise the controlled persons about their rights and obligations.
We have informed the person who had written the letter of complaint on the results of the control exercise and advised him, that in case he experiences repeated and specific grievance he should submit the complaint to the head of the given organisation which is obliged to investigate the matter and take the necessary measures.
We consider it important to point out that the minister of interior has been paying special attention to promote co-operation between the parliamentary commissioners and the office he heads as well as its organisations, wants to know the opinion, proposals of the parliamentary commissioner of national and ethnic minorities, takes his recommendations, initiatives into consideration. The wish to co-operate could also be seen from the fact last year that the minister of interior- accompanied by his state secretary on public administration- visited the office of the parliamentary commissioner twice (during spring and in the autumn) to discuss specific matters on both occasions, such as codification issues and matters concerning the modification of legal regulations. The senior subordinates of the minority commissioner were also present at those meetings.
The head of the National Police Headquarters welcomed in his office the parliamentary commissioners during the last month of the year and explained that on the basis of the successful long standing working co-operation between them and the leaders of the police he continues to consider as his important task to investigate all the complaints submitted to the parliamentary commissioners and affecting the police and to jointly evaluate the experiences.
In 1999 the minority commissioner had dealt with seven complaints concerning the operation of the penal authorities of the Ministry of Justice and their members. These complaints concerned the shortages in the health care of the inmates or the wish of the prisoners to be imprisoned closer to their place of residence. It did also happen that the authorities rejected application for short term leave and some complaints were related to rejection of application for milder punishment.
All the complaints referred to claims that the reason for affront was that they were Gypsies.
The commanding officers of the penal authorities and also the national officers and their subordinates have been ready to co-operate with the minority commissioner and have always been investigating carefully and in details the complaints and their background.
In relation to the complaints against the medical care they certified- with the medical expert opinion attached- that the plaintiff had been having the treatment capacity he/she needed for all the ailments detected and in fact all the steps had been taken to cure the prisoners. When some treatment was missing the prisoner was to blame, or rather he/she refused to accept the treatment.
In the case of two prisoners the national headquarters accepted the applicants’ request and transferred them into prisons closer to their place of residence. As a matter of fact legal regulations oblige the penal authorities to act in such a way, but very often relevant requests could not be met because the facilities are crowded, it is difficult to separate prisoners serving different types of terms, in general because of the conditions in the facilities. On the action of the minority commissioner it became possible to meet the requests.
When comparing our report to reports on the work in earlier years we can conclude that while most of the earlier complaints against the police operations concerned gravest cases of illegal actions, abuses committed in different situations, less complaints of such types have reached the minority commissioner last year. In 1999 also there were complaints about such behaviour, perhaps even misuse of power, which were grave, but compared to assault and battery they were of the type of behaviour which deserve milder consideration. Naturally it may be possible that they do not reflect the real situation, but the cases the ombudsman came to know about lead to such a conclusion.
2. The most evident cases of direct discrimination, biases in public service, general description of complaints
In the year 1999 again several complaints had been received on the refusal of various services. According to the plaintiffs the negative discrimination experienced was related to their origin, to the fact that they belonged to the minority population.
The ombudsman also monitored cases disclosed by the a press: he used to ask for the results of the investigations conducted by the notary and the Consumers’ Protection Supervision, and in the case of litigation on the subject of personality right or actions for libel or other cases he asked information on their result.
Referring to last year’s report we briefly sum up the characteristic features of the group of cases.
A rudest form of negative discrimination – within the category of direct discrimination –is when it is openly declared that the plaintiff is refused some service because of his/her origin, and the situation is made even more humiliating when it takes place in public.
Despite of that it is very difficult to prove that the negative discrimination was motivated by racial bias. Those who act lawlessly has several arguments to refer to; in most cases they refer to some earlier negative attitude, to private party, to crowded conditions.
It should be emphasised that in the case of matters in this category the ombudsman has no authority as it is not the attitude of some authority which has to be investigated but the illegal behaviour of some private person or economic organisation. For this reason whenever complaints of such type are received we ask for the co-operation of other organs of competence- the notary or the Consumers’ Protection Supervision- to conduct the given investigation and ask them to advise us on the results.
As detailed in last year’s report, in 1998 the Consumers’ Protection Supervision introduced a system of evidence suited to identify illegal actions of such type: with the assistance of the members of the Roma local government they have performed “test shopping” in the catering unit complained about. The practice – which has since become generally accepted- such actions will identify discrimination, and if proven, the Consumers’ Protection Supervision would employ the following sanctions:
1. It obliges the catering unit to serve everybody without discrimination and to advise the Supervision about the relevant measures taken within a specified deadline, and
2. it warns the catering unit, that in case it fails to take the necessary measures it will oblige the competent notary to close the shop temporarily, and
3. it warns to levy penalty – in addition to the other sanctions- in case the lawless attitude is repeated.
The resolution is based on the followings:
- article 3, section (5) of Nektv. which prohibits any discrimination against minorities;
- article 6, section f) of Act CLV of 1997 on consumer protection which stipulates that it is illegal to irrationally refuse the supply of service;
- and article 23/A of Government decree 4/1997 (I. 22.) on the operation of shops and the conditions for domestic trade, declaring that the security guards and employees of the shop must not violate the personal rights of the shoppers during their work.
In addition to asking for the investigation by the Consumers’ Protection Supervision , depending on the conditions of the case we used to propose to the plaintiffs to launch case on the violation of personality rights or action for libel, as the procedure and possible sanctions of the Consumers’ Protection Supervision scares off from future actions the owner of the shop. That cannot compensate for already committed illegal action against what the Constitution regards as the greatest value: the protection of human dignity.
Thus a legal practice has been established, which
- is suited to disclose the violation of law- with the help of “test shopping” performed by the Consumers’ Protection Supervision with the co-operation of citizens of minority origin;
- contains proper sanction – fine, temporary closing of the shop, in case of libel fine, in case of transgression prison, fine or work for public benefit;
- and proper compensation- if the court rules the violation of personality right.
In connection of such practice the following problems had arisen last year in the course of procedures executed by the notaries:
1. It became evident that the notaries are often uncertain what kind of procedures to execute based on what legislative provisions.
We had been approached by several notaries that after listening to the statements of both parties they could neither establish nor refute the complaint against discrimination and would not know what to do.
We have informed the notaries on the relevant legal regulations and on the procedures to follow.
The notary of a settlement disputed the method of threatening with the temporary closing down of the given pub just because the owner violated in a single case the law; he claimed that the sanction should apply only when the illegal action continues despite of repeated control and warning. He argued that article 23/A of Government decree 4/1997(I. 22.) prohibits one specific action (the employees of the shop must not violate the personality right of the shoppers), but legal regulations do not specify any sanction for such a case.
The issue had been sold without the co-operation of the notary: the Consumers’ Protection Supervision disclosed that the pub had been wound up. Action for libel was launched.
2. As a sign of the uncertainty as to how to proceed is that the notaries sometimes try to get rid of cases of such type.
In a procedure launched on the basis of a complaint received by us the notaries of two neighbouring settlements – referring to reasons of competence- transferred the case to each other twice. Then disturbed by the different notification received the plaintiff did not present himself to the authority which has launched the transgression procedure and the procedure was closed down with reference to act 78/C, section (1) of Szabstv. (act on transgression).
Finally- as it was stated by the security guards in the presence of several persons, that the given person would not be permitted to enter the disco- a procedure was launched for libel.
3. Because of their position in the community the notaries are often biased..
In one case the notary asked the Consumers’ Protection Supervision- referring to the provision of act 6, section (4) of act IV of 1957 on state administration procedure (hereinafter: Áe.) not to perform control exercise in the given disco. (According to the plaintiff the notary and the pub owners are relatives). Later the Consumers’ Protection Supervision also reported that prior to completing the procedure they received several telephone calls from the notary asking for the expected time of the control exercise.
Despite of that the members of the Consumers’ Protection Supervision and the Roma minority local government succeeded to conduct a control exercise in the disco at a time when the disco owner did not expect it. During the test shopping the owner violated the ban of discrimination and the Consumers’ Protection Supervision has passed its resolution.
As a lesson drawn from the case the ombudsman turns to the Consumers’ Protection Supervision in such cases and the Supervision asks the notary- if necessary- to close down temporarily the shop.
In another case the plaintiff protested against the officer- as biased- conducting the transgression procedure because the officer had illegally closed the procedure, violating the provision of act 38, section (2) of act I. of 1968 on transgression.
We turned to the prosecutor’s office which protested against the resolution which terminated the procedure and declared the illegal resolution nil and void and proposed the consideration of the bias, ordering the continuation of the procedure. After that the notary of the affected town withdrew his resolution and the superior organ appointed the notary of another town to conduct the procedure.
The procedure of come county Consumers’ Protection Agency also created problem, as it became clear that hey were unfamiliar with the special test shopping as established by the Consumers’ Protection Supervision.
In one of our cases the Consumers’ Protection Supervision contracted by the plaintiff directly did not know the evidence practice to be employed in such cases listened to the parties and then closed the case.
After we learned about the case we invited the Consumers’ Protection Supervision to describe the procedure and ensure that it is employed also by the county supervisory agencies. The Consumers’ Protection Supervision has met our request and informed a meeting of the county leaders on the procedure to be employed in such cases.
Being familiar with the cases described above the question to be answered is in relation to the regulations on the prevention of discrimination of such type, on their sanctioning and compensation in what direction the current legislation should be further developed to provide more unambiguous instructions on the judicial officers and the offended party.
3. Discriminative limitation of the basic constitutional right of the free choice of residence and the tendencies identified in this area
The right of the free choice of residence- a basic type of personal freedom rights- had been a key demand of various movements at a time when we could as yet not speak about any constitution, or the catalogue of constitutional rights. Unfortunately in Hungarian history the late Medieval Age which had lasted too long and perpetuated the restriction of the serfs to change their place of residence. That shameful situation changed only by legislation in 1848.
But we do not have to go so far back in history. Up to quite recently, up to 1989 there had been a regulation in force, which hindered settlement in Budapest by administrative means. In legal terms it was with the amendment of the Constitution on the 23rd of October 1989 that that right became fully provided and was expressed in article 58 of the Constitution as follows:
“Everybody legally residing in Hungary has the right of free movement on the territory of Hungary- except the cases specified by law- and the right to freely select the place of abode, including also the right to leave the place of residence and the country”
From the aspects of international law we seem to have outrun the internal law as the law decree 8 of 1976 on the promulgation of the International Concord Document on Economic, Social and Cultural Rights adopted at the XXI. session of the UN General Assembly on the 16th of December 1966 – which entered into effect on the 23rd of March 1976- declared in Part III. Chapter 12. Section 1.:
“1. Every person legally residing on the territory of some country has the right of free movement on that territory and the freedom of choosing his/her residence.”
It is quite another issue to what extent that international concord introduced into internal law applied in practice in the period between 1976 and 1989; we have no information we could properly interpret on the matter.
The right to freely choose one’s place of residence can be limited by two main methods: by “driving” somebody away from his permanent place of residence and by making it impossible for somebody to move to some location. This year we found examples to both cases.
As the issue concerns basic constitutional right the significant contents of which could not be limited, in principle such regulations could not be passed. In practice however one can meet attempts which try to limit the free movement of individuals with reference to other legislative provisions. As shown in specific cases discussed blow we identified indirect intent, which as a consequence raised the official initiative of legislative amendment which would have limited the right of free movement at the general assembly of a local government.
In this aspect the local governments play specific role as the problem arises primarily on such level. Because of the special position of small settlements they are more “sensitive” and the increase of persons claiming welfare subsidy can be best felt in the countryside.
3.1. Specific cases investigated during 1999.
Let us first see a practical example on the removal from the place of residence the “persona non grata”.
In a small settlement in Eastern Hungary a serious crime was committed – which greatly shocked the public opinion in the village- the perpetrator of which was the- Roma- partner for life of the plaintiff. As a consequence the mayor of the village wrote a letter to the family demanding that they should move out from the village, stating that the life style of the plaintiff and her family shocks the inhabitant of the village and because of the criminal actions they commit police measures are to be constantly taken.
It was an important fact that the members of the local Roma minority government also knew about the contents of the letter, but despite of the mayor’s request they did not want to interfere. The “official request for departure” had not been on the agenda of the local assembly which means that the local representatives did not authorise the mayor to send such a letter, so the letter was the outcome of a decision taken by the mayor himself. The efforts made by the Roma minority local government for reconciliation did not bring any result, so the plaintiff decided "out of his free will” to sell the flat and move from the village.
On our official approach the mayor declared that when writing his letter he was motivated exclusively by his concern and responsibility regarding the law and order situation of the village and he never cared for the origin of the plaintiff nor did he want to limit the minority or citizen’s rights of the plaintiff. On the measure we have taken the local assembly passed a resolution instructing the mayor to refrain in the future from such an attitude which can be objected to legally and morally.
One can conclude from the case that the mayor wrongly believed that he acted lawfully in the interest of the law and order situation of the village. He had however no legal basis to act in such a way, moreover by doing so he violated several constitutional rights. In addition to violating the right of free movement referred to above his procedure also violated the most important element of the constitutional state as specified in article 2, section (1) of the Constitution, namely legal security, that is a mayor declared somebody as criminal – disregarding the exclusive right of the criminal court to declare the criminal-, moreover the major also employed the concept of “collective criminality” by extending the concept of criminality to the entire family. From there it only takes one step to declare somebody as “persona non grata”. Such an action suggests serious misunderstanding of one’s role and great ignorance in legal matters.
In the above case we saw the isolated action of a single mayor, yet the affected person- understandably- decided not to wait for the outcome of the case voluntarily left the settlement and finally the “situation was solved”.
The next case is perhaps even more important as a lesson.
Great tension emerged in a small settlement in Eastern Hungary when the local government of a settlement some thirty kilometres away purchased a residential property in that small settlement for a five-member Roma family. According to information available to us the history of that purchase was as follows:
The home of the affected family became unsuited to living, and dangerous for life due to heavy rains, and temporarily the family moved to relatives living in a third village, then, on their own responsibility they moved back into their ruined home. By that time the local government already received subsidy to mitigate the damages caused by storm and so the mayor asked the family to choose another home. The son- born from an earlier liaison- of the head of the family- finally found a property not in the same but another settlement referred to above. On the day when the family was supposed to move into the village the local assembly had a meeting with the some issue on the agenda to keep the family away from the village, to prevent them from moving into the settlement.
The local government was especially offended by the fact that the local government of another village had “voluntarily” purchased a property in their settlement to lease it to the family in need. The assembly meeting – full of emotions- even raised the possibility to ask the Member of Parliament of the region to submit a bill which would prohibit the purchase of property in similar cases. The event occurred the following way as evidenced by the minutes of the meeting:
“The assembly orders the mayor to initiate with the Member of Parliament of the region the amendment of acts currently in force, to prevent local governments of settlements from moving persona non grata into other settlements.”
The assembly finally passed a resolution declaring that the local government of the village does not permit the settlement of the family in the village. They justified the resolution by claiming public scandal and referring to the overcrowded local schools.
The minority commissioner learned about the events from the press and so investigations started ex officio on the basis of the provision of article 16, section (2) of Obtv.. By the time this report is composed the investigation did not end, but the followings can already be established.
News went around the village claiming that a Roma family intends to move into the village and the head of the family has criminal record. The mood of the village was such that the Roma minority local government also had a meeting in the village on the matter and they decided not to permit the family to move into the village. They justified their resolution by declaring that 60% of the inhabitants of the village are of Roma origin, living mostly on various welfare funds and the local government is short of funds and the institutions of the settlement are overcrowded.
On the same day the assembly of the local representatives took a decision, very similar to the one passed by the minority local government. It declared that the representatives do not permit the settlement of the family in the village. They also ordered the mayor to initiate the amendment of the law as already discussed. The representatives approved unanimously the resolution.
On our official instruction the head of the competent office of public administration invited the mayor to withdraw the unlawful resolution. In that letter it was explained that the resolution passed by the local government was unconstitutional and that statement was explained in details. On the basis of legality related instructions of the office of public administration the local assembly declared its resolution nil and void.
In the case just discussed the situation was that the village wanted to “keep away” a family which had wanted to settle in the village. The majority of the inhabitants agreed with the resolution and what makes one even more bitter is that the intention enjoyed the active support of the local Roma minority government. That should also be regarded as warning.
The situation is even stranger considering that the purchase of a property by the local government of another village could be regarded also as an attack against the independence and autonomy of the local government. That also suggests unclear concepts, which by themselves are worth thinking about. Should any local government be officially limited to purchase property in some other location- especially from a private person – it would be a serious limitation of the freedom of contacting, which undoubtedly would be most unconstitutional
It was also very strange the way the local government interpreted its supply obligation as stated in article 8., section (4) of Ötv. (Act on local governments) It is especially worth noting that the mayor of the local government concerned decided to act unconstitutionally- hoping that his action would be made legal if supported by public opinion- claiming that he protected the interests of the local population.
He proceeded to protect the independence of the local government- as specified by law- but by fully misunderstanding that very principle.
One cannot refrain from making remarks on the role the Roma local government played in the issue. Acting to protect “the rights the local minority had gained” without declaring so they created the theory of “good Roma-bad Roma”, using the worst possible method in trying to give legal essence to the minority local government institution.
For the time being the surveyed cases look as isolated phenomena, but it would be very risky to neglect the latency which is most likely to exist in the matter. In both cases we have written evidence to prove that citizens can be regarded as persona non grata in some Hungarian settlements. We would cheat ourselves when believing there were no “finer” instruments available to force some people to leave certain settlement or to prevent others from moving into the settlement. Especially in villages with small number of inhabitants- where everybody knows everyone- it is possible to find tools which have nothing to do with law to make it insupportable for some people to reside there. Again the small settlements give better chances for actions in which the local leadership can gain support from the residents for actions against “shared threat” which may take the form of the settlement in the village of a family in backward social position.
Unfortunately it is rather easy to influence public opinion, especially with reference to the financial position of the village. The role of officials is very great in such cases as their personal position, the social position of the organisation they represent respect will almost automatically make them present their opinion as public opinion.
In connection with the phenomenon one cannot help raising the issue of the independence of the local government system, the possibility of its control. It has been voiced on other for a, on other occasions also that during the past ten years the local government system has been basically operating well, and compared to the former system significant progress has been made especially in the area of autonomy and independence. For this reason we must be very careful with any attempt to reduce their autonomy in any small way, because any start on such path may face great risks. One cannot emphasise enough the significance of the legally also properly protected autonomy.
Unfortunately there is no simple prescription for the management of the phenomenon discussed. It may happen that an official order to the mayor with curious way of thinking is sufficient for the termination of the lawless behaviour.
In other cases- especially when local public opinion also stands for limiting measures- the situation is more difficult. One cannot instruct public opinion as such; people can be influenced only indirectly, through properly selected and employed means of communication to make them change their opinion. The “presentation” of such cases in the press does not always help to solve the conflicts peacefully, does not necessarily help to shape public opinion positively.
In summary it can be established that we have met unacceptable practice and regard as our task to use our own tools in every case in acting against such tendencies.
4. Presentation of complaints submitted to the Social Committee and suggesting the violation of basic constitutional right, with special regard to the refusal of the payment of social benefits and applications for preventing eviction
Article 70/E of the Constitution guarantees the right of citizens to social security. Accordingly, the citizens of the Republic of Hungary have the right to social security in case of old age, sickness, in case they become widows, orphans and unemployed for reasons not under their control. The right to social supply is provided in the Republic of Hungary through the social insurance system and the system of welfare institutions.”
Under the established supply system the right to social security is represented primarily by the benefits undertaken by the state and to which all citizens are entitled to, and the – generally minimum – level of the supply is guaranteed to every beneficiary. Such subsidy is supplemented by forms of subsidy provided under the competence of the local governments, which however are limited by the budgetary constraints of the local governments. According to our experiences the local governments have been fully meeting their obligations in passing ordinances, but no matter how strongly they decided the forms and frequency of the subsidy and the range of the beneficiaries as long as their financial possibilities remain below the requirements. The parliamentary commissioner cannot audit the financial resources of the local governments and the use of such resources so when receiving complaints against insufficient social benefits unconstitutional behaviour cannot be established.
The minority commissioner received complaints on social security issues especially in large number. All of them some from members of the Roma minority complaining about their impossible financial situation, unsolved housing problem, claiming that the local government does not care for their problems or that they are discriminated against because of the ethnic origin. One can experience especially in smaller towns, villages that- in the absence of jobs – for the families belonging to the minority the only secure income is the state subsidy every Hungarian citizen is entitled to. That subsidy however is insufficient for survival on an acceptable standard and if incidental working possibilities are also limited because of the character of the settlement, there is urgent demand for social subsidy from the local government. The possibility however is incidental, and in addition to the social ordinance of the local government the financial possibilities of the settlement also limit the funds to be used to meet demands.
In all complaints submitted on social matters the plaintiffs complain about the small size of the sum received or about not receiving any fund from the local government or ask for loan from the parliamentary commissioner.
The husband of the plaintiff had died, her child has been continuously sick; she herself also needs medical attention. She asked for an interest-free loan from the parliamentary commissioner she would refund in instalments when she starts receiving the annuity due to the orphans.
Another plaintiff would like to receive Christmas presents for her orphan children and complains that the Roma local government of the settlement does not help her in her difficult financial situation.
In the absence of competence applications of such type could be simply rejected, but in view of the hopeless situation of the plaintiffs we used to draw the attention of the local government on the problem and inform the client in details about the possibilities available. It is impossible to establish irregularity in relation to the right to social security as declared in article 70/E of the Constitution if the local government subsidises only in a limited way the families living under hard conditions, as permitted by the limited resources of the local government.
In connection with the payment of regular child care benefit we have observed during recent years a practice which violates the requirement of legal security- as would arise from the requirement of the constitutional state, and thus make irregularity emerge.
Everybody has the right to this form of subsidy, provided the family and financial conditions meet the requirements specified in act XXXI of 1997 on the protection of children and guardianship (hereinafter: Gyertv.). According to the provisions of that act the assembly of the local government shall pay regular child care allowance to the child the monthly per capita income of the family of whose does not surpass the current smallest amount of old age pension and rearing the child in the family is not contrary to the interest of the child [article 19. section (2)]. The amount of the subsidy- per child- cannot be less than 20 % of the minimum amount of old age pension [article 20. section (2)].
According to article 28. the local government may decide to advance the regular child care subsidy in kind, especially for children requiring special protection. In kind benefits can include primarily subsidy for the primary school pupils in the form of textbooks and other items for the school, service in canteen at discount rate, tuition fee, fee to be paid for health care service and subsidy to other supplies.
The ordinances passed by the local governments in relation to social benefits are usually in conformity to legislative provisions, however the practice of disbursement does not always meet legal requirements. The local governments concentrate on budgetary savings and developed some practice in connection with the ban on negative discrimination as stated in article 70/A of the Constitution, in view of the right to social security, as stipulated in article 70/E, and that can lead to irregularities when it comes to paying benefits to the Roma minority.
The representative of the Roma local government submitted complaint to the parliamentary commissioner because the local government of the settlement decided to pay for children entitled to regular child care allowance and belonging to the minority not cash, but rather purchase coupons which can be spent in the local general store, regardless of the life style of the family and whether the parents are otherwise suited to raise, educate the children. This action is used for every child, not only for children “requiring special care” and the protests by the parents are neglected. The sum allocated for regular child care allowance was used also to pay all the costs of welfare, the subsidy for the purchase of seed tuber, the purchase of fuel, connection to the water- and canalisation network, the preparation of board with photographs of the children in school, the public utility fees.
On answer to the question the representative of the local government explained, that “under the current critical conditions with limited funds there are no realistic economic possibilities to meet the demand on the minority to pay the entire sum of regular child care benefit in cash”. We have established that in the given case the local government disregarded not only its own ordinance but also the provisions of Gyertv. which given no right to the local governments to act as “guardians” of the families entitled to subsidy.
Such negative discrimination against minorities is the consequence of the voluntary attitude of the given authority, and so, to close the investigation we initiated to stop the illegal practice and pay the regular child care benefit in cash.
We also had to conclude that the practice of the local government distributing state subsidy for school textbooks among families which are not entitled to regular child care benefit violates the right to social security as stated in article 70/E of the Constitution. In such a situation it is lawful to deduct from the benefit the sum spent on school textbooks only for families entitled to regular childcare benefit, as specified in the ordinance of the local government.
In that case- - which was by no way unique- the explanation was that the families not entitled to benefit are the families in real need, as, according to experiences those entitled to benefits enjoy higher living standard because of their hidden income, than the families working for regular monthly wages as employees.
The complaint had been submitted to the minority commissioner by the chairman of the minority local government of the settlement, because in his opinion the procedure affected mainly Roma citizens and violated the right to social security of that community.
The parliamentary commissioner established, that the action of the local government was unlawful because it violated the ban of negative discrimination as specified in article 70/A of the Constitution, so he proposed that the sums deducted for the purpose of buying school textbooks should be returned to the families entitled to regular child care allowance and in the future the local government should not follow such practice.
Several citizens have turned to the minority commissioner because they felt that due to their ethnic origin they had not received for years the sum of subsidy for the purchase of car as allocated by the notary.
The investigation disclosed that the local government- when performing its mandatory tasks as specified by law- had performed its tasks in connection to the subsidy for the purchase of vehicles for physically disabled citizens. It is however the task not of the local government but of the state to determine the number of vouchers giving entitlement to the subsidy. It is a fact that the number of vouchers available is small, and that does not violate the provision of the right to social security as stated in article 70/E of the Constitution, as by providing the subsidy the state meets its social security obligation and the number of vouchers available for subsidy for car purchases does not lead to constitutional irregularity and does not drop the standard of subsidies below the minimum level.
According to the findings of the investigation the plaintiff received no subsidy not because of their ethnic origin but because of the small number of vouchers, so in their case no constitutional irregularity could be identified
A significant portion of the complaints related to social security has dealt with the housing conditions of the plaintiffs, but was also closely related to the deterioration of their social security, to unemployment, to their very bad financial position. In our opinion the right to a home, to residence is an integral part of the social security guaranteed in article 70/E of the constitution, but does not concurrently mean entitlement to flats for every citizen, The active participation of the state is always needed for the establishment of social security, which could not be achieved without such active state participation.
It was typical of every plaintiff who turned to us that they are incapable to establish without efficient state subsidy their own home, moreover, because of their social position even the maintenance of their homes is a problem they could not solve. For this reason their existing home may collapse or they are threatened by eviction because of the inability to pay the rent or the public utility services.
They all expect the local government to help; such help is either not available or is insignificant. The person without a home asks for a home (temporary home), the family which has a home wants to get a larger one, the family with a collapsing home expects to receive subsidy for rehabilitation, and the family in arrears with the payment of public utility fees hopes that the fees would be waived and the eviction would be hindered.
Every plaintiff feels that the rejection of their application by the local government is illegal, and they believe that they landed in a hopeless situation because of their Roma origin.
In no case did the investigation identify unconstitutional action, but it has become evident that – in the absence of efficient state subsidy- the budget of the local government would not permit to meet all the requirements.
Although act LXXVIII of 1993 on the lease of flats and premises and on certain regulations on their sale- as modified several times- settled the issues related to housing management and the local governments have also issued their mandatory ordinances on the subject, but these provisions by themselves- in the absence of financial funds- would not solve the problems. During recent years the number of flats owned by the local governments has shrink to insignificant number and new flats are being built, and the best some local governments can do is to provide the citizens hoping to obtain a home with- a limited number of- housing plots at discounted price and supplied with all the necessary utilities. However few citizens can make use of such a possibility. It can be learned from the complaints that people in need hope to receive long term loan, which they do not receive as the local government sees no guarantee that the loan would ever be repaid, and the parliamentary commissioner cannot even object to such practice as he has no right to audit the financial resources of the local government.
It was in vain for the Constitution to declare the right to social security, if a decisive element of social security, that is the legal guarantees of the right to a home, a residence are missing. The employment possibilities for the uneducated, untrained strata of society dropped to the minimum with the change-over to market economy, so the survival of such families is provided by state subsidies to which every citizen is entitled to. Families with many children are incapable to pay rental fee, the costs of public utilities, experience their position deteriorating, and finally, to avoid becoming homeless they become squatters in some neighbouring town, mostly in Budapest. They move to some other settlement hoping to find employment and better living conditions, but their action is doomed to fail, because the local governments do not permit- cannot permit – them to illegally occupy the small number of tenements available. The owner local governments turn to court and the squatters are evicted.
In their hopeless situation the plaintiffs asked for the help of the parliamentary commissioner. In such cases the investigation could not identify usually mistreatment of the members of minorities as in most cases the lawfulness strict action of the authorities against squatters could not be questioned. Naturally in the course of official procedures – regardless of the fact of arbitrary occupation of homes- humane considerations must also be made, as one should not forget that often large families with many children need to be –lawfully- evicted with the consequence that the children will be torn away from the family to be put into child care homes.
It is a well-known fact that last year, with the statistically significant increase in the number of arbitrarily occupied flats the state made the legal provisions more strict and act CXX of 1999 permits the employment of graver sanctions, legal consequences- compared to the earlier legal practice- against the squatters. Naturally the new transgression related legislative provisions could not be objected to legally or factually, but one can raise the question: to what extent, based on what considerations will the culprits be fined, to what extent will their social conditions be considered, to what extent will they be “tailor made”, keeping in mind especially the fact that the act on the protection of children adopted in 1997 and considered to be “of European standard” categorically prohibits the practice of removing children from their families for financial reason.
According to current regulation the person who occupies an empty flat or some empty premises suited not for residential purposes or moves into it arbitrarily without the permit of some organ or person authorised to conclude rental agreement can be jailed or fined with up to HUF 150<|>000. We also hope that under the effect of the measures the number of arbitrary occupations will drop, but being familiar with the social background of the phenomenon and with the social position of the families concerned – in relation to the effectiveness of the legislative provisions- we feel obliged to declare certain doubt even in this report. The main reason for that is that one can foresee for the relevant procedures that a significant portion of the culprits will be incapable to pay the fine for transgression, so it seems to be evident that the number of transgression procedures will grow and it remains to be seen whether the outcome of those procedures, namely the “punishing” of the family members – first of all the children- who could not be blamed and thus could not be held responsible would not raise constitutional concerns.
To close this sequence of thoughts we must also sound our concern, that the various constitutional rights- including especially the right to property as guaranteed by the Constitution and the right to social security could land into non-resolvable conflict with one another, as in the case of some squatters it is an unambiguous fact that they move around a “path they are forced to take” and in the given situation they act illegally in order to save their lives, physical wellbeing for instance against freezing to death.
On the basis of the applications submitted it seems that the number of families incapable to pay the higher rents and the public utility fees is growing. Even if they are given the possibility to pay their debts in instalments, they are simply incapable to pay their arrears of thousands or hundreds of thousands of HUF out of their monthly income. The local governments act in conformity to law when cancelling the rent and turn to court to evict the tenants. In such cases we try to act as mediators and in some cases we succeed to find a solution which is acceptable to both parties.
The plaintiff applied to the parliamentary commissioner for help, because he is in arrears with the payment of a large sum for water consumption and his property is now subject to foreclosure and if he does not succeed to prevent it he and his adult daughter would become homeless.
As the date of the auction was close we had to act promptly and so members of our staff went to the location and made the plaintiff and the water works agree. On the basis of that agreement the debtor undertook to pay monthly a very small sum and the service company waived the usual demand for the payment of 30% of the debt in one sum. Although the investigation disclosed that the water works acted lawfully in every respect we felt that the plaintiff had needed further subsidy.
For that reason we contacted the mayor of the settlement who proved to be ready to provide for the plaintiff free meals and for his daughter a job. We asked the National Roma Local Government for help to reduce the family’s debt.
5. Negative discrimination in education: the findings of the ombudsman in relation to the segregation in school and education in schools with different curriculum
The annual report by the minority ombudsman unambiguously proves that the issue of education is the “key issue” in the narrow sense of the term for the Hungarian minority population, the Gypsies, who are in the most backward position. The strategic importance of education could not be questioned. Progress in the field of education, the increase of qualification level are the preconditions also for improving the employment position: the closing of the gap by the Roma minority could not take place without the emergence of a Roma professional stratum.
Last year we studied the position of the so called “supporting school education” and came to the conclusion- which may sound as surprise to many- that the supporting school system is nothing but a “blind alley” into which unfortunately Roma children are compelled to enter in very large number. In other words the system of supporting schools could be termed as a very special form of discrimination about young Gypsies, meaning unambiguously segregation, artificial separation.
The survey made by the ombudsman established that the number of young Gypsies in the supporting school system is far to big without justification and explanation and the system itself- which was originally meant to eliminate the differences in personal capabilities and pacing the way for equal chances- indirectly permit discrimination.
We submit to the readers the full text of our report on supporting education as appendix No. 4. of this report; at the same time we want to draw attention – not unnecessarily and for reason- to certain conditions which will make the understanding of the report easier.
The data on the statistical tables submitted in the report must not be regarded as 100% reliable as because of the provisions of the act on minorities and the act on data protection it is not possible to register the persons belonging to some minority, and that also applies for children. We took the data from professionally recognised researchers who have been dealing with the subject under investigation for many years, and we used various sociological methods. On the basis of the statistical data it can be unambiguously established, that the children attending special schools include a disproportionately high percentage of Roma pupils/students.
It must also be noted, that the report on the survey does not discuss in the same details all the regions, counties of Hungary, for the simple reason that the individual sociological surveys covered only certain regions and the ombudsman study could not be extended by further research projects. That is why the report presents data on Borsod-Abaúj-Zemplén and Zala counties, because scientific publications we could use for our survey had been prepared for those counties. The fact that these two regions are mentioned does not mean as if the problems only existed in those areas, but it was only on the basis of data collected there that we could draw conclusions for the entire country.
We concluded in the report that there are legal regulations in force to list children into special (supporting) school grades and the organs authorised to decide on the issue of mentally disabled status- the expert and rehabilitation committees- act in conformity to the rules. Despite of that we believe it is reason for concern that the information given to the parents of the affected children is only formal and the parents who are not fully capable to exercise their rights- those of very limited or no education- do not know where to turn to for legal remedy. In practice that means that they simply accept the expert opinion on the issue of mentally retarded state and regard it as a” decision which must be accepted”. That is especially true for parents belonging to the Roma minority, who, according to our experiences, often do not know, that by signing the statement on having received information they decided on the fate of their children.
6. Negative discrimination in employment, the presentation of the feed-back of the survey performed by the ombudsman in 1998, with special regards to the expected consequences of the legislative changes which have taken place since
In the report submitted last year to the National Assembly we detailed the findings of the comprehensive analysis by the commissioner which had been launched officially on the reasons for negative discrimination experienced in employment with the purpose of preventing such illegal actions.
During the survey our objective was to see whether the activities of the authorities responsible for the prevention of discrimination in employment, the system of fora and of procedures available on the basis of regulations in effect provide the legally possible protection against negative discrimination, whether they can disclose with sufficient effectiveness the cases of discrimination and control the legal conditions permitting discrimination and sanction the cases when legal regulations are violated and remedy the injustice. We paid special attention to see whether the legal system as a whole and the individual legal institutions help the realisation of the ban on discrimination declared with general effect in article 70/A, section (1) of the Constitution.
As a consequence of the investigation we conducted we concluded that the seemingly grave sanctions stipulated by several legal regulations – such as Szabstv. (Act on transgression) and Act against Discrimination. – which in principle should have preventive effect have in reality no real effect. We established as a shocking fact that the notifications we received and the results of sociological surveys prove that when employing or dismissing workers some employers employ negative discrimination against Roma workers, yet during the year of the survey or earlier periods no transgression procedure had been conducted, nor labour penalty was levied for reasons of negative discrimination against members of national or ethnic minorities.
As a result of our survey we composed several initiatives, recommendations and codification proposals and submitted most of them to the minister of social and family affairs. In our report last year we spoke about the favourable reception given to our proposals and so, as we had promised last year we report on the measures since taken and on their execution in practice.
We can regard as success that most of our codification proposals have been implemented during the reporting period. At its session held on the 21st of December 1999 the National Assembly adopted Act CXXII of 1999 on the amendment of some labour and social acts, which included several provisions recommended by us. Another group of our proposals has as yet not been implemented, but at a meeting held in January 2000 to discuss the feed back of our survey the minister of social and family affairs assured us that the ministry would take this year yet the necessary measures to have them implemented in practice.
The first group of our recommendation included initiatives aimed at reducing the great latency typical of the cases of discrimination.
- The minority commissioner suggested to the minister of social and family affairs to have information developed and published to be used for the employees as source of useful information on the tools of legal remedy available in case of discrimination in employment.
We considered such information necessary, because the overwhelming majority of the employees who had suffered negative discrimination have no chance to use legal advise for financial reasons. Such a publication could be used as quasi “legal consultant” providing practical know-how on the system of fora and system of procedures established to remedy of affront, including especially the provisions on the ban of discrimination, the competence of the labour supervisory authorities (and perhaps other transgression authorities with general competence or other authorities), the possibilities and conditions of legal remedy provided by the courts, on the offices and organisations of legal protection and their addresses.
The minister of social and family affairs had promised that the information booklet would be published yet in 2000. The publication shall be disseminated with the help of the labour centres and it is planned to make it available also to various civic organisations. Additionally the “green number” of the ministry- which can be dialled free of charge – currently providing advise on labour right matters affecting women- will be extended to provide also legal advise in cases of discrimination.
- The minority commissioner proposed to the minister of social and family affairs to have information collected on employment discrimination and to have its procedural system developed.
The method we proposed to be employed is to have the labour centres survey with the help of questionnaires and interviews whether the clients had experienced negative discrimination. The unemployed persons would then have the possibility to voluntarily declare if some employer used negative discrimination against them.
This initiative of ours was also welcomed by the ministry, but its practical execution requires further reconciliation exercises.
Another group of our proposals concerned measures which could help to make the controlling work of labour supervisory authorities more effective. In the course of our survey we established that the organs authorised to act in case of negative discrimination are not aware of individual cases, or even if they know about the existence of the phenomenon the do not “officially” note specific cases of discrimination.
- The minority commissioner submitted as recommendation the idea to oblige the labour centre to signal to the labour supervisory authorities when observing the violation of the ban on negative discrimination.
Signalling on the basis of Áe. is currently already the obligation of every public administration organ, including labour centre offices, but the provision with general effect – and the consistent disclosure of lawless actions- would be executed in case such obligation is made mandatory also in the relationship between the offices and the supervisory agencies specifically by some provision of lower level (decree issued by the minister). According to the experiences of legal practice a given obligation is more strictly executed if the address is not a general person (“organ of public administration “in general) but exactly specified by the legislative provision.
The recommendation is timely, because as from the 1st of January 2000 the work safety and labour supervisions continue their operation as the regional organs of the Országos Munkabiztonsági és Munkaügyi Fõfelügyelõség (National Work Safety and Labour Chief Supervision). We believe that the division of the organisation would give an additional argument in favour of the implementation of our recommendation. That could provide the basis for the organisation of the exchange of mutual information between the labour centre or its office in direct connection with the employers and the labour supervision authorised to act in case of negative discrimination.
- In another recommendation the minority commissioner proposed that the labour supervision offices should be obliged to perform labour control also in cases when not the client- that is not the person whose rights were violated- submits the complaint but the labour centres or other state or social organisations supply the information on the violation of law.
In our opinion it is a deficit of legal regulations that the labour supervisory authorities perform labour control only on the basis of the complaint submitted by the person who was victim of discrimination. We are definitely convinced that the state organs cannot disregard any action by the employer which is contrary to the provisions of the Constitution or of other acts. It is necessary to establish the legislative environment to make the labour supervisory authorities launch procedure in every case when they are officially informed- no matter which organisation provides the information- on the claimed violation of the ban against negative discrimination.
When we closed the survey the Ministry of Social and Family Affairs accepted our recommendation, yet our proposal had not been included into the Act against Discrimination, when the act was modified last year. For this reason we continue to retain the recommendation in its original form and initiative further reconciliation exercises to have our recommendation executed.
- In the form of recommendation the minority commissioner proposes the modification of the Act against Discrimination so as to permit the employment of the turn around of the rule on the burden of proof by the labour supervision authorities also in the procedure of control of adherence to the provisions on the prohibition of negative discrimination.
We are glad to report that the amendment of the act as we proposed had been enacted and as from the 1st of January 2000 the employer has to prove in the course of the labour control procedure that its action had not violated the legal provisions on the ban of negative discrimination, and that fact will hopefully help to improve the effectiveness of the control exercises performed by the labour supervision authorities.
The third group of our recommendations is the “codification package” aimed at supplementing the system of sanctions available in the case of negative discrimination.
- The minority commissioner proposed the modification of decree 6/1996. (VII. 16.) MüM (Ministry of Education) that the employer levied with labour penalty should not receive for one year after the penalty became absolute any benefit/subsidy it would otherwise be entitled to receive.
Our codification proposal was built on the realisation of the fact that as alternative to “criminal”, or punitive sanctions preventive effect can be reached also by risking other prejudicial effects, including especially the threat of withdrawing state subsidy from an organisation, legal entity or other economic organ which performed the action of negative discrimination.
We can report as success on the fact that during the report period the recommended amendment of legislation did take place, decree 6/1999. (IX. 3.) SzCsM (Ministry for Families and Social Welfare) had promulgated it as from the 3rd of October 1999.) [It should be noted in brackets that this year we can expect even stricter sanctions in case of the violation of the rules against negative discrimination in the field of employment when Government decree 218/1999. (XII. 28.) on some transgression cases becomes effective. Instead of HUF 50,000 – the penalty the employer has to pay when employment negative discrimination, the sum of penalty will be HUF 100,000]
As a summary we can conclude that out of the recommendations we had composed in the survey the most significant ones have been adapted. However the measures we recommended are to be built one upon the other, forming a uniform system, which can only be effective if all its elements are applied. For this reason we retain in their original form all our recommendations and suggest further reconciliation exercises to have them employed in practice.
Budapest, March 2000.
Dr. Jenõ Kaltenbach